AGREEMENT NOT TO COMPETE
THIS AGREEMENT NOT TO COMPETE (hereinafter "the Agreement"), made this
17th day of November, 1997, is by and between Xxxxx Xxxxxxx ("Xxxxx "), and
All American Bottling Corporation, a Delaware Corporation, hereinafter referred
to as "AABC".
WHEREAS, pursuant to an Purchase Agreement ("thePA") Xxxxx has agreed to
resign from all positions with AABC and;
WHEREAS, the parties desire to enter into this agreement.
NOW, THEREFORE, in consideration of the respective covenants and
agreements herein contained, the parties hereto, do hereby covenant and agree
as follows:
1. Term of Agreement: This Agreement shall commence on the date
hereof and continue thereafter for a period of three (3) years until the 17th
day of November, 2007
2. Agreement Not to Compete. Xxxxx agrees that he will not, for
himself, or on behalf of any other person, partnership, corporation or any
other entity, either as a principal, owner, agent, stockholder, partner or in
any other corporate or individual capacity whatsoever, within the States of
Kansas and Colorado where AABC currently conducts it's business, ("xxx
xxxxxxxxx") (a) interfere with AABC's, or any successor in interest's,
conduct of the Business by soliciting in the franchise area any customer that
was a customer of AABC, or potential customer on the date hereof, to sell or
produce products of types offered by AABC, (b) interfere with AABC's, or any
successor in interest's conduct of the business by persuading any Customer to
discontinue it's business with AABC, or any successor in interest thereto, (c)
interfere with AABC's, or any successor in interest's conduct of the business
by persuading any customer to do business with any other person, firm,
corporation, partnership, association in competition, with the Business as
conducted by AABC, or any successor in interest thereto, employees to work for,
or on behalf of, any person, firm, corporation, partnership, association or
entity other than AABC or otherwise to violate this covenant. This covenant
shall not prohibit Xxxxx from engaging in consulting work for others in the
beverage industry so long as such firms are not engaged in, or planning to be
engaged in, DSD operations within the territory. In addition this covenant
shall not prohibit Xxxxx from working for any franchise companies, within the
territory, so long as such work does not involve contact with the "trade" as
that term is commonly used in the industry, on behalf of any competitor of AABC
in the territory. The term "business" as used in this section is the
manufacture, sale and distribution of various non alcoholic drinks pursuant to
franchise or license agreements and distributor agreements within certain
defined territories within the States of Colorado and Kansas. Nothing in this
agreement shall prohibit the ownership of a minority interest in a publicly
traded company engaged in the same business as AABC.
3. Consideration. In consideration of this Agreement AABC shall pay
Xxxxx the sum of $231,200 with interest at the rate of 6.25% per annum, in
33 monthly installments as set forth on the schedule attached hereto. In the
event any payment is not made within 30 days of it's due date, at the option of
Xxxxx, the entire remaining amount may be declared due and payable. The first
monthly payment shall be made on the closing of the purchase agreement. In
exchange for writing off the receivable due from Xxxxx to FSB, Xxxxx agrees
that the last payment due under this covenant will not be made.
4. Waiver of Breach. The failure of either party to prosecute, or
the waiver by either party of, any breach of any provision of this Agreement
by either party shall not operate as, or be construed, as a waiver of any
subsequent breach of this Agreement whether or not of the same or of a similar
nature.
5. Successors and Assigns. This Agreement shall inure to the benefit
of, and be binding upon, AABC and Xxxxx, and their successors, personal
representatives, heirs and assigns.
6. Applicable Law. This Agreement shall be governed and construed in
accordance with, the laws of the State of Oklahoma or the States of Kansas
and/or Colorado as may be selected by AABC.
7. Asset Purchase Agreement. At all times this Agreement shall be
construed in connection with the APA between Xxxxx and All American Bottling
Corporation. The terms and provisions of the APA are hereby incorporated by
reference.
8., 9., Intentionally omitted.
10. Miscellaneous.
10.1 Expenses. Each party hereto shall bear its or his own
expenses incurred pursuant to this Agreement.
10.2 Entire Agreement. This Agreement, together with any
documents referred to herein which are incorporated herein by reference, shall
constitute the entire agreement between the parties hereto with respect to the
transactions contemplated hereby.
10.4 Number and Gender of Words. When the context so requires in
this Agreement, words of gender shall include either or both of the other
genders and the singular number shall include the plural.
10.5 Assignment. This Agreement shall be binding upon the parties
hereto, their successors and assigns, and may not be assigned by either party
without the other parties express written consent, provided that this
prohibition against assignment shall not apply to any transfer as the result of
the death of any party. Any permitted assignment of this agreement shall at
all times be subject to the terms and conditions of the purchase agreement.
10.6 Amendments. This Agreement may be amended only by a written
agreement executed by all of the parties hereto.
10.7 Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be delivered in person,
by facsimile transmission, overnight cheerier, or by registered or certified
mail, return receipt requested, postage and fees prepaid, first class mail:
Xxxxx Xxxxxxx
Cherry Creek Tower # 1106
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxxx, President
All American Bottling Corporation
00 X. Xxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Any party hereto may change the address or telecopy number designated for
mailing by written notice to the other party. All such notices shall be deemed
to be given when delivered in person or by facsimile transmission (with
confirmation of receipt), or if placed in the mail as aforesaid, then two (2)
days thereafter.
10.8 Authority. Each party executing this Agreement warrants his
authority to execute this Agreement.
10.9 Counterparts. This Agreement may be executed in several
counterparts and it shall not be necessary for each party to execute each of
such counterparts, but when both of the parties have executed and delivered one
of such counterparts, the counterparts, when taken together, shall be deemed to
constitute one and the same instrument, enforceable against each party in
accordance with its terms.
10.10 Severability. If any provision of this agreement shall be
held to be void or unenforceable under the laws of any place governing its
construction or enforcement, this agreement shall not be void, but shall be
construed to be in force with the same effect as though such provisions were
omitted. In addition no partial invalidity will affect the obligation of AABC
to make the payments to Xxxxx.
IN WITNESS WHEREOF, AABC and Xxxxx have executed this Agreement on the
date first stated herein.
"Xxxxx "
BY XXXXX XXXXXXX
Xxxxx Xxxxxxx
"AABC" All American Bottling Corporation
BY XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx, President
Guaranty of Performance
For good and valid consideration, the receipt and sufficiency of which is
hereby acknowledged, and in order to induce Xxxxx Xxxxxxx ("Xxxxx") to enter
into the above and foregoing Agreement not to Compete (the "Agreement") and in
consideration thereof, Xxxxxxx X. Xxxxxx ("Xxxxxx") hereby unconditionally
guarantees to Xxxxx the full and prompt performance by All American Bottling
Corporation ("AABC" of all the covenants, conditions, and agreements of AABC
contained in the Agreement, including, without limitation, the prompt payment
of the monthly payments provided for therein. The guaranty obligations of
Xxxxxx hereunder is an absolute and unconditional guaranty of payment (and not
of collection) and of performance. This guaranty shall be enforceable against
Xxxxxx without necessity of any suit or proceeding whatsoever against AABC or
any other person and without the necessity of any noticeof acceptance of this
Guaranty or any other notice, proof, of demand to which Xxxxxx might otherwise
be entitled, all of which Xxxxxx hereby expressly waives. Provided however
that Xxxxx is required to provide notice of non-payment to Xxxxxx prior to the
time that Xxxxx has the right to declare the entire balance due and payable.
Xxxxxx agrees that the validity and enforceability of his obligations under
this Guaranty shall in no way be terminated, affected, diminished, or impaired
by reason of (a) the assertion or the failure to assert by Xxxxx against AABC
of any of the rights or remedies of Xxxxx under the Agreement, any non-
liability of AABC under the Agreement on account of insolvency or bankruptcy,
or (b) the partial or total invalidity of the Agreement. It is agreed that the
failure of Xxxxx to insist in any one or more instances upon the strict
performance or observance of any of the terms, provisions, or covenants of the
Agreement or to exercise any right therein contained shall not be construed or
deemed to be a waiver or relinquishment for the future of such term,
provisions, or covenant, or right, but the same shall continue and remain in
full force and effect. Notwithstanding anything herein to the contrary,
should Xxxxx to be obligated by any bankruptcy or other law to repay to AABC or
to Xxxxxx, or to any trustee, receiver, or other representative of either of
them, any preferential payments or other similar amounts previously paid, this
Guaranty shall be reinstated in the amounts of such repayments. No waiver or
modification of any provision of this Guaranty shall be effective unless in
writing signed by Xxxxx; nor shall any such waiver be applicable except in the
specific instance for which given. This Guaranty shall be binding upon Xxxxxx
and his executors, administrators, heirs and beneficiaries and shall inure to
the benefit of, and may be enforced by Xxxxx and his executors, administrators,
personal representatives, heirs, beneficiaries, and assigns. Xxxxxx
acknowledges that he has a substantial economic interest in All-American
Bottling Corporation so as to anticipate deriving a substantial economic
benefit from the execution and delivery by Xxxxx of the Agreement. This
Guaranty Agreement shall be governed by the laws of the State of Kansas.
Notices to Xxxxxx may be personally delivered or mailed, by registered or
certified mail, return receipt requested, to 00 Xxxxx Xxxxxxxx, Xxxxxxxx Xxxx,
Xxxxxxxx 00000 or to such other address as he may have previously furnished to
Xxxxx.
DATED: November 17, 1997 XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
"Xxxxxx"
