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EXHIBIT 99.8
NON-COMPETITION AGREEMENT
THIS AGREEMENT, dated as of October ____, 1999, between The UniMark
Group, Inc. ("UNIMARK"), Simply Fresh Fruit, Inc. ("SIMPLY FRESH") and SFFI
Company, Inc., a California corporation (the "BUYER").
W I T N E S S E T H:
WHEREAS, UniMark has sold substantially all of the assets of Simply
Fresh to the Buyer, pursuant to that certain Asset Purchase Agreement dated
effective as of October 2, 1999 (the "ASSET PURCHASE AGREEMENT") by and among
Buyer, Xxx Xxxxxxxxx, the Xxx Xxxxxxxxx Children's Trust - 1972, UniMark and
Simply Fresh;
WHEREAS, pursuant to the terms of the Asset Purchase Agreement,
UniMark, Simply Fresh and Buyer have agreed to enter into this Agreement;
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereto agree as follows:
1. Covenant Not to Compete. UniMark acknowledges and agrees that
for four (4) years from the effective date hereof (the
"TERM"), UniMark and Simply Fresh will not engage in a
Restricted Activity in the United States without the prior
written consent of Buyer. For the purposes of this Agreement,
a "RESTRICTED ACTIVITY" shall mean either:
(a) the marketing and sale of "Fresh-cut Fruit." For
purposes of this Agreement "Fresh-cut Fruit" shall
mean fruit that (i) has been cut and (ii) has not
been processed, treated or packaged in any manner
that extends the natural shelf life, appearance or
taste of the freshly cut fruit; and
(b) the marketing and sale of fruit packed in "pails" for
exclusive sale to "food service" customers.
2. Customer Standstill. For a period of one year from the
effective date of this Agreement, UniMark agrees to refrain
from soliciting business from any existing customers of Simply
Fresh, and likewise, Buyer agrees to refrain from soliciting
business from any existing customers of UniMark or its
subsidiaries.
3. Termination. Notwithstanding anything to the contrary herein,
this Agreement shall be null and void and shall have no
further force and effect with respect to the applicable
Restricted Activity, if:
(a) any person or entity (an "ACQUIRING PERSON") acquires,
directly or indirectly, a beneficial ownership position of 51%
of the voting securities of UniMark or all or substantially
all of the assets of UniMark (a "SALE TRANSACTION") and such
Acquiring
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Person is engaged, directly or indirectly, in a Restricted
Activity at the time of such Sale Transaction; or
(b) an Event of Default under either the 90 Day Note (as defined
in the Asset Purchase Agreement) or the Four Year Note (as
defined in the Asset Purchase Agreement) occurs.
4. General.
(a) It is the desire and intent of the parties that the provisions
of this Agreement shall be enforced to the fullest extent
permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. If any particular
provisions or portion of this Agreement shall be adjudicated
to be invalid or unenforceable, this Agreement shall be deemed
amended to delete therefrom such provision or portion
adjudicated to be invalid or unenforceable, such amendment to
apply only with respect to the operation of this Agreement in
the particular jurisdiction in which such adjudication is
made.
(b) This Agreement is entered into under and in subject to the
terms and provisions of the Asset Purchase Agreement. The
obligations of the parties hereto are subject to their
obligations under the Asset Purchase Agreement.
(c) This Agreement shall be construed in accordance with the laws
of the State of California. The parties hereto agree that any
dispute pertaining to this Agreement and the transactions
contemplated hereby must be submitted for binding arbitration
in Los Angeles, California, to the exclusion of courts of law,
in accordance with commercial arbitration rules in force at
the time of this Agreement.
IN WITNESS WHEREOF, each of the undersigned has by its appropriate
officer signed this Agreement on and as of the date first above written.
THE UNIMARK GROUP, INC.,
A Texas corporation
By:
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Soren Bjorn
President, Chief Executive Officer
and Secretary
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SIMPLY FRESH FRUIT, INC.,
A California corporation
By:
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Soren Bjorn
President
SFFI COMPANY, INC.,
A California corporation
By:
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Name:
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Title:
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