NON-COMPETE AGREEMENT
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THIS AGREEMENT, made as of June __, 2000, by and between Brunswick
Technologies, Inc. a Maine corporation ("Corporation"), and
______________________, an individual residing in ____________, __________
County, Maine ("Covenantor").
WHEREAS, contemporaneously with the negotiation of the mutually
agreeable terms of this Agreement, VA Acquisition Corp., a Maine corporation
("Buyer"), has entered into a merger agreement under which Buyer would acquire
control over the Corporation ("Merger Agreement") and contemporaneously with the
negotiation of the mutually agreeable terms of this Agreement, Buyer has made
enhancements in its earlier tender offer to acquire all of the stock of the
Corporation ("Tender Offer").
WHEREAS, the Buyer desires to protect and preserve the business of,
and the value of the stock in, the Corporation being purchased by it.
WHEREAS, the Covenantor has been actively engaged in a primary role in
developing, expanding and managing various aspects of the business of the
Corporation.
WHEREAS, the Corporation and Covenantor are currently bound by an
existing Employment Agreement dated April 14, 2000 ("Employment Agreement").
WHEREAS, the Covenantor agrees that Buyer and Corporation are entitled
to the fullest protection at law and in equity against competition or
interference from Covenantor in the business of the Corporation in the
geographical area and for the period of time hereinafter provided.
NOW THEREFORE, in consideration of the respective promises and
agreements contained herein which have been negotiated at arm's length
separately, but incident to and within the context of the Merger Agreement and
the Tender Offer, Covenantor, intending to be legally bound hereby agrees as
follows:
1. Non-Competition Covenant. Provided that no material default in
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any substantial obligation owed by the Corporation, or any affiliate of the
Corporation, to Covenantor has occurred and has not been cured:
a. Covenantor expressly covenants, warrants and agrees that
for the separate consideration set forth in section 5 hereof he will
not, during the time he remains an employee of the Corporation and for
a period of eighteen months following the termination of his
employment by the Corporation for any reason and whether voluntary or
involuntary, directly or indirectly, individually or as an officer,
director, shareholder, employee, consultant, adviser, partner or co-
venturer of or on behalf of anyone else, in association with any
person, entity, firm or corporation, engage in any services for, or
acquire any financial or
beneficial interest in, the operation of any business substantially
similar to the business engaged in by the Corporation on the date of
his termination, including without limitation thereof, the designing,
manufacturing, distributing, marketing or selling of woven composite
materials involving fiber glass or carbon fibers and engineered
reinforcement fabrics used in the fabrication of composite materials,
within any geographic area in which the Corporation is then operating
its business; provided however, that this paragraph shall not be
construed or interpreted so as to prohibit Covenantor from passively
investing in a publicly-held company which may be engaged in such
business activity so long as Covenantor's investment therein does not
exceed more than 4.9% of such publicly-held company's outstanding debt
or equity securities.
b. Covenantor further expressly covenants, warrants and agrees
that for the same period of time he shall not directly or indirectly,
nor in association with any person, entity, firm or corporation (i)
divert or attempt to divert any business of, or any of the customers,
suppliers or licensors of the Corporation in any manner which would
create or constitute a breach under subsection (a) above, or (ii) hire
or attempt to hire for any position or employment relating to any
substantially similar business as engaged in by the Corporation on his
date of termination, or encourage the resignation, of any employees of
the Corporation for any reason.
c. The parties to this Agreement understand and agree, that if
any portion of the covenants set forth in this Section 1 above are
held to be unreasonable, arbitrary, against public policy or otherwise
unenforceable, then that portion of those covenants shall be
considered divisible as to their duration and geographic scope. The
parties to this Agreement agree that if any court of competent
jurisdiction determines that the specified duration or the specified
geographical area of application of any covenant is unreasonable,
arbitrary, against public policy or otherwise unenforceable, then a
lesser time period, geographical area or both that is determined to be
reasonable, non-arbitrary, not against public policy and enforceable
shall be substituted. The parties to this agreement acknowledge that
they are familiar with the present business of the Corporation and
believe that the covenants as set forth in this Section 1 are
presently reasonable with respect to their subject matter, duration
and geographical application. The provisions of this Section 1 shall
survive the termination or expiration of this Agreement.
2. Confidential and Proprietary Information. Covenantor
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recognizes and acknowledges that the business, operations, methods, customer
lists, licensing arrangements, trade secrets and other confidential or
proprietary information of the Corporation are valuable, special and unique to
the business of the Corporation. Covenantor expressly covenants, warrants and
agrees that for the same periods of time set forth in subsection 1(a) he shall
keep confidential any trade secrets, confidential or proprietary information of
the Corporation which are now known, or which hereafter may become known, to
Covenantor and he shall not, directly or
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indirectly, disclose any such information to any person, firm or corporation
other than the Corporation and its corporate affiliates. For purposes of this
Section 2, "trade secrets, confidential or other proprietary information" shall
mean information which is unique to the business of the Corporation and which
has a significant business purpose and is not known or generally available from
sources outside the Corporation or from typical industry practice, but shall not
include information lawfully obtained from a source other than the Corporation
or its corporate affiliates or otherwise in the public domain. The covenants and
other provisions of this Section 2 shall survive the termination or expiration
of this Agreement.
3. Specific Remedies. The parties acknowledge that a breach of
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this Agreement, and particularly a breach by Covenantor under Section 1 and/or 2
hereof, may cause substantial injury to the Corporation which may be irreparable
and/or in amounts which are difficult or impossible to ascertain. Therefore,
Covenantor covenants and agrees that in the event that he breaches this
Agreement, and particularly Section 1 and/or 2 hereof, the Corporation shall
have, in addition to all other remedies, the right to injunctive and other
equitable relief. The provisions of this Section 3 shall survive the
termination or expiration of this Agreement.
4. Fees and Cost of Enforcement. In the event that either party
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hereto shall be required to engage the services of an attorney at law to enforce
such party's rights hereunder as a result of the breach of this Agreement by the
other, then the party prevailing in such enforcement proceedings, as determined
in the discretion of the Court, shall be entitled to recover from the other all
costs of such proceeding including reasonable attorneys' fees and such
prevailing party's expert witness fees whether or not such experts may have
testified in any such proceedings.
5. Consideration. In consideration for the covenants contained
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in Sections 1 and 2 hereof, the Corporation has paid to Covenantor, in cash,
receipt of which is hereby acknowledged, the sum of $25,000, less withholding
taxes (if applicable).
6. Governing Law. This Agreement shall be governed and construed
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in accordance with the laws of the State of Maine.
7. No Third Party Rights. The parties hereto do not intend, and
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nothing in this Agreement shall be construed, to give any person other than the
parties hereto and their respective successors and permitted assigns, any legal
or equitable benefit, right, remedy or claim, and no person other than the
parties hereto and their respective successors and permitted assigns shall have
standing to assert the same.
8. Entire Agreement. This Agreement constitutes the entire
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understanding of the parties hereto with respect to any and all obligations
between the parties with respect to the matters referred to herein. Further,
with respect to the matters referred to herein except as expressly set forth
herein, the parties make no representation, warranty, covenant or agreement,
whether express or implied, of any kind whatsoever. In all other respects, the
provisions of the Employment Agreement, to the extent not in conjunction with
this Agreement, are ratified and confirmed. Notwithstanding the foregoing, this
Agreement shall not supersede or affect any
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Employee Confidentiality Agreement (Proprietary Data & Trade Secrets) by the
Covenantor in favor of the Corporation, which shall continue in full force and
effect.
9. Assignment. Covenantor specifically acknowledges and agrees
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that Corporation may assign this Agreement to one or more of its successors in
interest, subsidiaries, parents, affiliates or any other person or organization
controlling, controlled by or under common control with it, or to any other
entity acquiring ownership of the Corporation or its business, and such
assignment shall be binding upon Covenantor and enforceable against him by such
assignee. Subject to the foregoing, the covenants and agreements contained
herein shall enure to the benefit of and be binding upon the heirs, personal
representatives, successors and permitted assigns of the parties hereto.
10. Notices. All notices, disclosures or other communications which
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are required or permitted hereunder shall be deemed sufficiently given by one
party to another party only if in writing and if and when actually received if
hand delivered personally or by a nationally recognized overnight delivery
service, or international courier, which provides for a signed receipt, or by
telecopy or telex when transmitted to the number specified in this Section and
the appropriate answerback is received, or as of five business days after
deposit in the United States mail in a sealed envelope, registered or certified,
with postage prepaid, addressed as follows:
If to the Corporation:
Brunswick Technologies, Inc.
00 Xxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxx 00000
Attention:
Telephone:
Telecopy:
With required copies to:
VA Acquisition Corporation
000 X. Xxxxxxxxxx Xxxx
Xxxxxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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Xxxxx X. Xxxxxx, Esquire
Xxxxxx Xxxxxxxx LLP
3000 Two Xxxxx Square
00xx xxx Xxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Covenantor:
_______________________
_______________________
_______________________
Telephone: ____________
Telecopy: _____________
or to such other address or telecopy/telex number as shall have been previously
designated by written notice in accordance with this Section.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement by affixing their hands (and in the case of a corporate party the hand
of its duly authorized officer) and seal the day and year first above written.
Brunswick Technologies, Inc.
By: _______________________________
Title: ____________________________
Witness: [Covenantor]
_________________________ _____________________________(SEAL)
Name
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