EXHIBIT 10.39
Non-Competition Agreement
This NON-COMPETITION AGREEMENT (this "Agreement") is entered into as of
November 30, 1999 by and among Xxxx Xxxxxx ("Shareholder"), the shareholder of
ASH Corp., a Mississippi corporation (the "Company"), Nutrition For Life
International, Inc., a Texas corporation ("Buyer"), and its wholly-owned
subsidiary Bactolac Pharmaceutical Inc., a Delaware corporation ("BPI").
RECITALS
A. This Agreement is entered into in connection with the acquisition by
Buyer of the Company pursuant to that certain Agreement and Plan of Merger dated
October 25, 1999 by and among Buyer, Advanced Nutraceuticals, Inc. ("ANI"), AC
Acquisition Company, the Company and the Shareholder of the Company named
therein, as amended on November 24, 1999, which included the addition of BPI as
a party (the "Merger Agreement").
B. Pursuant to the Merger Agreement, among other things, the Company shall
be merged (the "Merger") with and into BPI (sometimes referred to herein as, the
"Surviving Corporation") and the Shareholder shall receive shares of preferred
stock, par value $.001 per share, of the Buyer.
C. Shareholder has agreed to execute and deliver this Agreement and to be
bound by its terms (i) to induce Buyer, ANI and BPI to complete the Merger, (ii)
with the intention of causing the effective preservation of the goodwill of the
Surviving Corporation unimpaired, and (iii) to provide assurance to Buyer, ANI
and BPI that Shareholder will take no action that could frustrate or interfere
with such preservation or otherwise impair such goodwill.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing facts and such other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. Shareholder hereby covenants to and agrees with the Buyer and BPI that,
except as otherwise expressly provided in this Agreement or consented to,
approved or otherwise permitted by the board of directors of Buyer or the
Surviving Corporation in writing, for the period ending the later of (i) four
(4) years from the date hereof, or (ii) one (1) year following the termination
of Shareholder's employment or consulting relationship with Buyer or the
Surviving Corporation, Shareholder shall not, directly or indirectly, acting
alone or as a member of a partnership or other business entity or as a holder of
any security (including debt securities) of any class (other than as a holder of
less than two percent (2%) of the outstanding amount of any security listed on a
national securities exchange or designated as a National Market System security
by the National Association of Securities Dealers, Inc.), or as an officer,
director, partner, employee, consultant, agent or representative of any
corporation or other business entity;
(a) engage, within any county or other political subdivision of any
other state of the United States of America or in any foreign country in the
Nutritional Supplement Business (as
hereinafter defined) or in any business, trade or other enterprise substantially
similar to, or directly or indirectly in competition with, the Nutritional
Supplement Business conducted by the Buyer or the Surviving Corporation, during
the term hereof, extend to or assist in arranging credit to establish or conduct
any such business or to acquire all or any portion of any such business or
permit Shareholder's name, reputation or affiliations to be used in connection
with any such business. For the purposes hereof, the "Nutritional Supplement
Business" shall mean the cultivation, gathering, preparation, processing,
trading, manufacture, distribution, marketing or selling (whether at wholesale
or retail, by any method or means) of vitamins, minerals or other nutritional
supplements, whether for humans or animals, or the ingredients therein or
therefor;
(b) disclose to any person, firm, corporation, association or other
entity any confidential or proprietary information pertaining to the
organization or business conducted by the Buyer or Surviving Corporation at any
time;
(c) request, induce or attempt to influence any person who is or was
a customer or supplier of the Buyer, the Surviving Corporation or the Company to
limit, curtail or cancel its business with the Buyer or the Surviving
Corporation; or
(d) request, induce or attempt to influence any current or future
officer, director, employee, consultant, agent or representative of the Buyer or
Surviving Corporation to (i) terminate his, her or its employment or business
relationship with the Buyer or Surviving Corporation; (ii) commit any act that,
if committed by Shareholder, would constitute a breach of any provision hereof;
or (iii) hire any such person.
Provided, however, that such period set forth in this paragraph 1 shall be
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extended by and for the duration of any period of time during which Shareholder
is in violation of any provision of this Agreement and, provided, further, that
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such period shall not apply to subparagraph (b) above, which shall remain in
effect indefinitely. The provisions of clauses (a), (b), (c) and (d) above are
separate and distinct commitments independent of each of the other such clauses.
Shareholder agrees that the Buyer and Surviving Corporation have no adequate
remedy at law for any breach or threatened or attempted breach by Shareholder of
the covenants and agreements set forth in this Paragraph 1 and, accordingly,
Shareholder also agrees that the Buyer or Surviving Corporation may, in addition
to the other remedies that may be available to it under this Agreement, under
the Merger Agreement or at law, be entitled to an injunction without bond
temporarily or permanently enjoining Shareholder from breaching or threatening
or attempting any such breach of such covenants and agreements; and for purposes
of any such proceeding in equity, it shall be presumed that the remedies at law
available to the Buyer or Surviving Corporation would be inadequate and that
they would suffer irreparable harm as a result of the violation of any provision
hereof by Shareholder. The prevailing party or parties in any proceeding in
equity or at law commenced in respect of this Agreement shall be entitled to
recover from the other party or parties to such proceeding all reasonable fees,
costs and expenses (including reasonable fees and disbursements of counsel)
incurred in connection with such proceeding and any appeals therefrom.
2. The Buyer, BPI and Shareholder agree that if the scope of the covenant
set forth in Paragraph 1 hereof is deemed by any court to be overly broad, the
court may reduce the scope thereof to that which it deems reasonable under the
circumstances. If any one or more provisions hereof are held to be invalid or
unenforceable, the validity and enforceability of the remaining provisions shall
not be affected hereby.
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3. The covenants and agreements of Shareholder hereunder are independent
of the covenants, representations, warranties and agreements of all the parties
to the Merger Agreement under the Merger Agreement, and no default, breach or
failure to perform by any party to the Merger Agreement shall constitute an
excuse or other justification for Shareholder to fail to observe fully
Shareholder's covenants and agreements hereunder. No course of dealing between
or among the Buyer, Surviving Corporation and Shareholder and no delay by the
Buyer or Surviving Corporation in exercising any right, power or remedy
hereunder, in equity or at law shall constitute a waiver of, or otherwise
prejudice, any such right, power or remedy.
4. This Agreement (i) constitutes the entire agreement and supersedes all
prior and contemporaneous agreement and understandings, both written and oral,
between the parties hereto with regard to the subject matter hereof, (ii) is not
intended to confer upon any other person any rights or remedies hereunder or
with respect to the subject matter hereof and (iii) shall inure to the benefit
of and be enforceable by the Buyer and Surviving Corporation and their
successors and assigns. All notices and other communications under or in
connection with this Agreement shall be given and deemed effective in the manner
set forth in Section 13.7 of the Merger Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above set forth.
SHAREHOLDER:
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XXXX XXXXXX
BUYER: NUTRITION FOR LIFE INTERNATIONAL, INC.,
a Texas corporation
By:____________________________________
Name:_______________________________
Title:______________________________
BPI (and after the BACTOLAC PHARMACEUTICAL INC.,
Merger, SURVIVING a Delaware corporation
CORPORATION):
By:____________________________________
Name:_______________________________
Title:______________________________
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