NON COMPETE AGREEMENT
THIS AGREEMENT is made as of January 6, 1998 between Xxxx Xxxxxxxxx and
Xxx Xxxxx, individuals who maintain a business at Sagamon Spring Water of
Vermont, Inc.("SSW") X.X. Xxx 000, Xxxxxxx, XX 00000 ("Sellers") and Vermont
Pure Springs, Inc., a corporation with its principal place of business on Xxxxx
00, Xxxxxxxx, XX 00000, (the "Company").
Background
A. The Company is a company engaged in the bottling and sale of
natural spring water with its manufacturing facility and principal place of
business in Xxxxxxxx Center, VT and
B. SSW is a company, engaged in the sale of natural spring water
with its principal place of business in Rutland, VT, and
C. The Company and SSW, of which Xxxx Xxxxxxxxx and Xxx Xxxxx are
principals, are parties to an existing Asset Purchase Agreement whereby the
Company is purchasing substantially all of the assets of SSW. Xxxx Xxxxxxxxx and
Xxx Xxxxx have had considerable experience in the business of producing and
marketing natural spring water, and are familiar with operations similar to
those to be conducted by the Company.
D. The Company requires that Xxxx Xxxxxxxxx and Xxx Xxxxx enter
this Non Compete as a condition to closing on the aforementioned Asset Purchase
Agreement.
Terms
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties agree as follows:
1. Term. Subject to Section 9 of this agreement, the term of
this Agreement shall be from January 6, 1998 through January 6, 2003.
2. Compensation. As compensation and consideration for Seller's
agreement and consent to the terms of this Agreement and his assumption of the
responsibilities under this Agreement, the Company agrees to pay Xxxx Xxxxxxxxx
and Xxx Xxxxx and they agree to accept the following compensation:
2.1 The Company will pay Xxxx Xxxxxxxxx and Xxx Xxxxx an
annual fee of $8,000 commencing on January 5, 1998 and ending on January 5, 2002
(5 payments totaling $40,000).
3. Applicable Law. This Agreement shall be construed in
accordance with the laws of the State of Vermont, without giving effect to
principles of conflict of law.
4. Nondisclosure of Confidential Information.
4.1 Xxxx Xxxxxxxxx and Xxx Xxxxx shall not, during the term of
this Agreement or at any time for a period of five (5) years following closing,
unless authorized to do so in writing by the Company, directly or indirectly
disclose or permit to be known to, or used for the benefit of, any person,
corporation or other entity (outside of the employ of the Company), or itself,
any confidential information. For the purposes of this Section 4, the term
confidential information shall include, but not be limited to, confidential or
proprietary knowledge or information with respect to the conduct or details of
the Seller's business including, but not limited to, lists of customers of the
Buyer's business, pricing strategies, or marketing methods. Confidential
information does not include matters which are generally known outside of the
Buyer, public knowledge or in the public domain.
4.2 All confidential information described in Section 4 shall
be the exclusive property of the Company, and Xxxx Xxxxxxxxx and Xxx Xxxxx shall
use their best efforts to prevent any publication or disclosure thereof.
5. Restrictive Covenant. In order to protect the Company in its full
beneficial use and enjoyment of the goodwill, assets, business relationships,
marketing techniques and other know-how acquired as a result of an Asset
Purchase Agreement between the Company and SSW, for a period of five (5) years
after the closing of this Agreement, Xxxx Xxxxxxxxx and Xxx Xxxxx will not,
within the States of New York, Vermont, New Hampshire, Maine, Connecticut,
Massachusetts, and/or Rhode Island, directly or indirectly compete with the
Company in the home/office distribution of: distilled water, spring or
carbonated water, and will not either (i) solicit any persons or entities known
to be customers of the Buyer to purchase any of the aforementioned products; or
(ii) solicit or induce any employee of the Buyer to leave such employment to
take a position with Xxxx Xxxxxxxxx and Xxx Xxxxx or with any company for which
Xxxx Xxxxxxxxx and Xxx Xxxxx then works. During the aforesaid period, Xxxx
Xxxxxxxxx and Xxx Xxxxx shall not make any statements or commit any acts
(including contacting any of the Buyer's customers that would in any way be
tortiously injurious or detrimental to the Company's image, business or customer
relations. The provisions of this Section 5 shall survive the termination, for
any reason, of this Agreement and shall continue for the five year period
contemplated by this Section 5.
6. Remedies. Xxxx Xxxxxxxxx and Xxx Xxxxx acknowledges that their
promises with respect to the agreement not to compete and to maintain the
confidentiality of information in accordance with this agreement are promises of
a special, unique, unusual, extraordinary and intellectual character, which give
them peculiar value the loss of which cannot be reasonably or adequately
compensated in an action of law, and that, in the event there is a breach hereof
by Xxxx
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Xxxxxxxxx and/or Xxx Xxxxx, the Company may suffer irreparable harm, the amount
of which will be impossible to ascertain. Accordingly, the Company shall be
entitled, if it so elects, to institute and prosecute proceedings in any court
of competent jurisdiction, either at law or in equity, to obtain damages for any
breach or to enforce specific performance of the provisions or to enjoin Xxxxxx
form committing any such act in breach of this Agreement. The remedies granted
to the Company in this Agreement are cumulative and are in addition to remedies
otherwise available to the Company at law or in equity. If the Company is
obliged to resort to the courts for the enforcement of a covenant of Xxxx
Xxxxxxxxx and Xxx Xxxxx contained in Section 4 or 5, such covenant shall be
extended for a period of time equal to the period of such breach which extension
shall commence on the later of (I) the date on which the original (unextended)
term of such covenant is scheduled to terminate or (ii) the date of the final
court order (without further right of appeal) enforcing such covenant.
7. Waiver of Breach. The waiver by the Company or Xxxx Xxxxxxxxx
and Xxx Xxxxx of a breach of any provision of this Agreement by the other shall
not operate or be construed as a waiver of any other or subsequent breach of
such or any other provision.
8 Notices. Any notice required or permitted to be given under this
agreement shall be in writing and shall be delivered by hand or sent by
certified mail addressed to Xxxx Xxxxxxxxx and Xxx Xxxxx at the address set
forth in the first paragraph of this Agreement (or such subsequent address as is
noted on Company's records), with a copy to Xxxxxxx X Xxxxxx, III, Esq. at Xxxx
Xxxxx & Carbine, Ltd., X.X. Xxx 000, Xxxxxxx, XX, 00000-0000 and to the Company
at Xxxxx 00, Xxxxxxxx, XX 00000, with a copy to Xxxxx X. Xxxxx, Esq., Ledgewood
Law Firm, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, or to such other
address as either of such parties may designate in a written notice served upon
the other party in the manner provided herein. Any such notice shall become
effective upon receipt.
9. Severability. If any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be held
invalid or unenforceable by a court of competent jurisdiction, the remainder of
this Agreement or the application of any such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Agreement
shall be valid and enforceable to the fullest extent permitted by law. If any of
the provisions contained in this Agreement shall for any reason be held to be
excessively broad as to duration, scope, activity or subject, it shall be
construed by limiting and reducing it, so as to be valid and enforceable to the
extent compatible with the applicable law or the determination by a court of
competent jurisdiction.
10. Binding Effect and Assignability. The rights and obligations of
both parties under this Agreement shall inure to the benefit of and shall be
binding upon their heirs, successors and assigns, but it shall not be assigned
without the written consent of both parties.
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11. Entire Agreement. This instrument constitutes the entire agreement
with respect to the subject matter hereof between the parties hereto and
replaces and supersedes as of the date hereof any and all prior oral or written
agreements and understandings between the parties hereto. This Agreement may
only be modified by an agreement in writing executed by Xxxx Xxxxxxxxx, Xxx
Xxxxx and the Company.
IN WITNESS WHEREOF, the undersigned have executed this Agreement the
date and year written above.
Vermont Pure Springs Company
By: /S/ Xxxxxxx X. Xxxxxx /S/ Xxxx Xxxxxxxxx
Xxxxxxx X. Xxxxxx Xxxx Xxxxxxxxx
President & CEO
/s/ Xxx Xxxxx
Xxx Xxxxx
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