EXHIBIT NO. 10.45
NON-COMPETITION AND NON-SOLICITATION AGREEMENT
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THIS AGREEMENT dated as of the 28th day of May, 1999
A M O N G:
NIEMAND INDUSTRIES, INC., a corporation incorporated under the laws of
the State of Delaware
(hereinafter referred to as "Seller")
OF THE FIRST PART
- and -
GIBRALTAR PACKAGING GROUP, INC., a corporation incorporated under the
laws of the State of Deleware
(hereinafter referred to as "Gibraltar")
OF THE SECOND PART
- and -
XXXXXXXX JDM LTD., a corporation incorporated under the laws of the
Province of Ontario
(hereinafter referred to as the "Buyer")
OF THE THIRD PART
WHEREAS:
I. Pursuant to an asset purchase agreement made between the Buyer
and the Seller dated as of February 25, 1999, as amended (the "Purchase
Agreement"), the Buyer has purchased certain assets of the Seller which
the Seller has used in connection with the Container Business (as
hereinafter defined);
II. Gibraltar is the sole shareholder of the Seller and will derive
substantial benefit from the transaction described in the foregoing
recital; and
III. Pursuant to the Purchase Agreement, the Seller covenanted to
execute and deliver, and to cause Gibraltar to execute and deliver, a
non-competition and non-solicitation agreement with the Buyer;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the sum
of Ten Dollars ($10.00) and other good and valuable consideration (the receipt
and sufficiency of which the Seller and Gibraltar hereby acknowledge) the
parties hereto covenant and agree as follows:
1. DEFINITIONS. Where used in this agreement, unless the context or
subject matter otherwise requires, the following words and phrases have the
meaning set forth below:
(a) "AFFILIATE" of any party means any other entity that, directly or
indirectly, controls, is under common control with or is controlled by
that party. For purposes of this definition and this agreement,
"CONTROL" (including, with correlative meaning, the terms "CONTROLLED
BY" and "UNDER COMMON CONTROL WITH"), as used with respect to any
entity, shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of such
entity, whether through the ownership of voting securities or by
contract or otherwise;
(b) "CONTAINER BUSINESS" means the business of manufacturing and/or selling
any spiral wound paper container, except (i) those currently produced
and filled at the Niemand facility, (ii) the vaginal applicator tube
(Applicade), and (iii) the patented Entherm tube;
(c) "CUSTOMER" means any Person who is at the date hereof, or who was at
any time during the 2 years prior to the date hereof, a customer of the
Seller in the Container Business;
(d) "PERSON" means an individual, partnership, unincorporated association,
organization, syndicate, corporation, limited liability company,
trustee, executor, administrator, or other legal or personal
representative;
(e) "TERRITORY" means North America; and
(f) "TIME PERIOD" means the period of 2 years commencing on the date of
this agreement.
2. NON-COMPETITION. Each of the Seller and Gibraltar covenants and
agrees that it will not at any time during the Time Period, anywhere within the
Territory, individually or in partnership or jointly or in conjunction with any
Person, whether as principal, agent, shareholder, consultant, trustee or in any
other manner whatsoever, whether directly or indirectly, invest in, undertake,
carry on or be engaged in or concerned with the Container Business or have a
financial interest in or advise, lend money to, guarantee the debts or
obligations of, or permit its name or any part thereof to be used or employed by
or associated with, any Person, which is, directly or indirectly through an
Affiliate or otherwise, engaged in, concerned with or interested in the
Container Business.
3. NON-SOLICITATION. Each of the Seller and Gibraltar covenants and
agrees with the Buyer that it shall not, at any time during the Time Period,
directly or indirectly, in
any way:
(a) persuade or attempt to persuade any Customer to restrict, limit or
discontinue purchasing any products of the Container Business supplied
by the Buyer or any of its Affiliates to such Customer or to reduce the
amount of business which any such Customer has customarily done or
contemplates doing with the Buyer in the Container Business or
endeavour to entice away from the Buyer any of its Customers in the
Container Business; or
(b) solicit, hire or engage the services of any employee of the Buyer, or
pursuade or attempt to persuade any such individual to terminate his or
her employment with the Buyer.
4. RESTRICTIONS REASONABLE. Each of the Seller and Gibraltar
acknowledges that the provisions hereof are reasonable in order to protect the
business and proprietary interests of the Buyer both as to the duration of time
and any geographic limitation herein provided.
5. ENFORCEMENT AND SEVERABILITY. If any provision of this agreement as
applied to any party or to any circumstance shall be adjudged by a court of
competent jurisdiction to be invalid or unenforceable, the same shall not affect
any other provision of this agreement, the application of such provision in any
other circumstances, or the validity or enforceability of this agreement. The
parties hereto agree that the provisions hereof are reasonable and intend this
agreement to be enforced as written. However, if any provision, or part thereof
is held to be unenforceable because of the duration thereof, the area covered
thereby, or the types of activities restricted thereby, the parties hereto agree
that a court of competent jurisdiction making such determination shall have the
power to reduce the duration of the provision, the geographic area of the
provision, the types of activities specified and to delete specific words or
phrases and in its reduced form, such provision shall then be enforceable.
6. REMEDIES. Each of the Seller and Gibraltar acknowledges that a
breach or threatened breach by it or the non-performance of certain of the
covenants or promises contained herein by it may cause serious and irreparable
harm to the Buyer and that any remedy at law, including any award of money
damages, may be inadequate. Accordingly, each of the Seller and Gibaltar agrees
and accepts that the Buyer may, in addition to any other claim for relief,
enforce the provisions of this agreement by injunction, restraining order or
other equitable relief and the Seller and Gibraltar agree not to plead
sufficiency of damages as a defense in any proceeding for injunctive or other
equitable relief and agree that such equitable relief may be sought in any
proceedings to enforce the provisions of this agreement.
7. NON-WAIVER. The failure of the Buyer to require the performance of
any term or condition of this agreement, or the waiver by the Buyer of any
breach of this
agreement, shall not prevent a subsequent enforcement of such term or any other
term and shall not be deemed to be a waiver of any subsequent breach.
8. SURVIVAL. The covenants of the Seller and Gibraltar contained in
this agreement shall survive the closing of the Purchase Agreement and shall
continue in full force and effect for the benefit of the Buyer until the
termination of the Time Period.
9. ENTIRE AGREEMENT. This agreement shall constitute the entire
agreement between the parties with respect to the subject matter hereof, and may
not be amended or modified except by written instrument signed by each of the
parties.
10. GOVERNING LAW. This agreement shall be interpreted and construed in
accordance with, and the rights and obligations of the parties hereunder shall
be governed by, the laws of the Province of Ontario.
11. SUCCESSORS AND ASSIGNS. The provisions of this agreement shall
enure to the benefit of the Buyer and its successors and assigns and shall be
binding upon the Seller and Gibraltar, and their respective successors and
assigns.
IN WITNESS WHEREOF the parties hereto have duly executed this
agreement.
NIEMAND INDUSTRIES, INC.
Per: /s/ Xxxx X. Xxxxx c/s
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Xxxx X. Xxxxx, Secretary
I have authority to bind the Corporation.
GIBRALTAR PACKAGING GROUP INC.
Per: /s/ Xxxx X. Xxxxx c/s
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Xxxx X. Xxxxx, Vice President
I have authority to bind the Corporation.
XXXXXXXX JDM LTD.
Per: /s/ Xxx Xxxxxx c/s
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Xxx Xxxxxx, President
I have authority to bind the Corporation.
