EXHIBIT 10.8
AMENDMENT TO
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
---------------------------------------------
AMENDMENT, dated as of March 25, 1993 by and between Xxx-Xxxx Co., Inc., a
Delaware corporation (successor by merger to Xxx-Xxxx Co., Inc., a Massachusetts
corporation, "Xxx-Xxxx"), and Xxxxxxxx and Xxxxxxx, Inc., a Delaware corporation
(the "Company").
WHEREAS, the Company and Xxx-Xxxx are parties to a Confidentiality and Non-
Competition Agreement dated as of September 4, 1990, a copy of which is attached
hereto as Exhibit A (the "Agreement"); and
---------
WHEREAS, in consideration of the execution and delivery by each of Xxxx X.
Xxxxxxx and Xxxxxx X. Xxxxxxxx of separate Amendments to Confidentiality and
Non-Competition Agreement dated as of the date hereof, the Company and Xxx-Xxxx
wish to amend certain provisions of the Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby covenant and agree as follows:
1. Defined Terms. Capitalized terms used and not defined in this
-------------
Amendment shall have the meanings assigned to such terms in the Agreement.
2. Amendment of Agreement. Section 4 of the Agreement is hereby amended
----------------------
and restated in its entirety as follows:
4. Term. The term of this Agreement (the "Term") shall commence on
---- ----
the date hereof and continue until September 4, 2000, provided, however,
that if there occurs a sale of substantially all the assets of the Company
or of Xxx-Xxxx or a "change in control" of the Company or Xxx-Xxxx, the
obligations of Xxx-Xxxx shall cease and be of no further effect. For
purposes of this Agreement, a "change in control" with respect to either
Xxx-Xxxx or the Company shall be deemed to occur if the stockholders of
Xxx-Xxxx or the Company, as the case may be, on the date of this Agreement
shall cease to own at least 51% of the issued and outstanding capital stock
of Xxx-Xxxx or the Company.
3. Survival of Agreement. Except as expressly amended hereby, the
---------------------
parties hereto hereby confirm that the Agreement shall continue in full force
and effect in accordance with its terms.
4. Counterparts. This Amendment may be executed in one or more
------------
counterparts, each of which is deemed to be an original and all of which shall
constitute one and the same instrument.
1
IN WITNESS WHEREOF, the parties hereto have each duly executed this
Amendment as of the date set forth above.
XXX-XXXX CO., INC.
/s/ Xxxxxx X. Xxxx, President
_________________________________________
Xxxxxx X. Xxxx, President
XXXXXXXX AND XXXXXXX, INC.
/s/
_________________________________________
Name:
Title:
2
EXHIBIT A
---------
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
---------------------------------------------
THIS CONFIDENTIALITY AND NON-COMPETITION AGREEMENT is made as of September
4, 1990 by and between XXXXXXXX AND XXXXXXX, INC., a Delaware corporation (the
"Company"), and XXX-XXXX CO., INC., a Massachusetts corporation ("Xxx-Xxxx");
------- --------
WHEREAS, the Company and Xxx-Xxxx have heretofore entered into that certain
Asset Purchase and Sale Agreement, dated as of July 18, 1990, as amended
September 4, 1990 (as so amended, the "Purchase Agreement"), providing for the
------------------
sale by Xxx-Xxxx and the purchase by the company of the Assets (as defined in
the Purchase Agreement); and
WHEREAS, the Company is unwilling to purchase the Assets and otherwise to
consummate the transactions contemplated by the Purchase Agreement unless Xxx-
Xxxx enters into an agreement on the terms and conditions set forth herein; and
WHEREAS, Xxx-Xxxx wishes to enter into this Agreement for the purpose of so
inducing the Company;
NOW, THEREFORE, in consideration of the foregoing premises, and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties covenant and agree as follows:
1. Confidential Information. During the Term (as defined below) of this
------------------------
Agreement, Xxx-Xxxx shall not, for its own benefit, or for the benefit of a
third person or entity, divulge, use, disclose, or make accessible to anyone,
any non-public confidential or proprietary information, gained by Xxx-Xxxx as a
result of its ownership of the Assets or its operation of the Business (as
defined in the Purchase Agreement) or otherwise, with respect to the Assets or
the Business, including without limitation, any business plans, financial
information, marketing or sales information, customer or supplier lists, pricing
or cost information, personnel or employment or benefits records or Intellectual
Property (collectively, the "Confidential Information". For purposes of this
------------------------
Agreement, "Intellectual Property" shall include, but not be limited to, all
---------------------
patentable or unpatentable information, research, discoveries, inventions,
designs, improvements, plans, trade secrets, systems, methods, know-how,
drawings, specifications, technical, manufacturing or engineering data or any
other confidential information or intellectual property of any type or nature
whatsoever, either owned by the Company or in which the Company has rights.
Confidential Information shall not include (i) information which is or becomes
publicly available (except as may be disclosed by a party in violation of this
Agreement; (ii) information acquired by Xxx-Xxxx from a source other than the
Company or any of its employees, agents, consultants or shareholders, which
source
3
legally acquired such information and is not bound by a confidentiality
obligation to the Company; (iii) information which is required to be disclosed
in a judicial proceeding; or (iv) information acquired by Xxx-Xxxx and utilized
by Xxx-Xxxx in connection with its operation of businesses similar to the
Business in jurisdictions other than those specified in paragraph (b) below.
Xxx-Xxxx represents and warrants that as of the date hereof, it has returned to
the Company all copies of Confidential Information in its possession.
2. Covenant Not to Compete. During the Term of this Agreement, Xxx-Xxxx
-----------------------
will not at any time compete, directly or indirectly, with Seller by engaging in
any business involving commercial laundry equipment services or concessions
within the states of Virginia, Maryland, West Virginia or Tennessee or the
District of Columbia (sometime hereinafter referred to as the "Restricted
Area"), including without limitation, by (a) participating as a stockholder or
partner of, or having any direct or indirect financial interest (including
without limitation the interest of a creditor) in, any enterprise which engages
in such business in the Restricted Area; or (b) participating as an agent,
representative or consultant in which such entity's or person's responsibility
is related to such business in the Restricted Area.
3. Restrictions on Solicitation. During the Term of this Agreement, Mac-
----------------------------
Xxxx will not, directly or indirectly:
(a) recruit, solicit or induce or attempt to divert or take
away any employees of the Company to terminate their employment
with or otherwise cease their relationship with the Company; or
(b) solicit, divert or take away or attempt to take away the
business or patronage of any of the customers or accounts or
prospective customers or accounts of the Company which are
located in the Restricted Area.
4. Term. The term of this Agreement (the "Term") shall be for a period
---- ----
of five (5) years from the date hereof, provided, however, that if there occurs
a sale of substantially all the assets of the Company or of Xxx-Xxxx or a
"change in control" of the Company or Xxx-Xxxx, the obligations of Xxx-Xxxx
shall cease and be of no further effect. For purposes of this Agreement, a
"change in control" with respect to either Xxx-Xxxx or the Company shall be
deemed to occur if the stockholders of Xxx-Xxxx or the Company, as the case may
be, on the date of this Agreement shall cease to own at least 51% of the issued
and outstanding capital stock of Xxx-Xxxx or the Company.
5. Waiver. No delay or failure in exercising any right, power or
------
privilege under this Agreement or under any other instrument or document given
in connection with or pursuant to this Agreement shall impair any such right,
power or privilege or be construed as a waiver of any default or any
acquiescence therein. No single or partial exercise of any such right, power or
privilege shall preclude the further exercise of such right, power or privilege,
or the exercise of any other right, power or privilege.
4
6. Benefit and Assignment. This Agreement shall be binding upon and
----------------------
shall inure to the benefit of the parties hereto and their respective successors
and assigns, provided, however, that neither this Agreement nor any rights
hereunder shall be assignable by Xxx-Xxxx without the prior written consent of
the Company.
7. Specific Performance; Other Rights and Remedies. Xxx-Xxxx recognizes
-----------------------------------------------
and agrees that he Company's remedy at law for any breach of the provisions this
Agreement would be inadequate, and he agrees that, for breach of such
provisions, the Company shall, in addition to such other remedies as may be
available to it at law or in equity or as provided in this Agreement, be
entitled to injunctive relief and to enforce its rights by an action for
specific performance to the extent permitted by law. Without limiting the
generality of the foregoing, in the event of a breach or threatened breach by
Xxx-Xxxx of the provisions of this Agreement, the Company shall be entitled to
an injunction restraining Xxx-Xxxx from soliciting employers, customers or
suppliers, or from disclosing, in whole or in part, any Confidential
Information, or from rendering any services to any third person or entity to
whom such information has been disclosed, or is threatened to be disclosed from
engaging, participating or otherwise being in connection with any business
described in this Agreement hereof or from otherwise violating the terms of this
Agreement. Nothing herein contained shall be construed as prohibiting the
Company from pursuing any other remedies available to it for such breach or
threatened breach, including without limitation the recovery of damages from
Xxx-Xxxx, and the legal fees incurred by Seller. Should Xxx-Xxxx engage in any
activities prohibited by this Agreement, he agrees to pay over to the Company
all compensation, remunerations or monies or property of any sort received in
connection with such activities, and such payment shall not impair any rights or
remedies of the Company hereto or the obligations or liabilities of Xxx-Xxxx
under this Agreement.
8. Entire Agreement; Amendment. This Agreement constitutes the entire
---------------------------
agreement among the parties hereto with respect to the subject matter hereof,
and supersedes all prior oral and written agreements, commitments or
understandings with respect to the matters provided herein. This Agreement may
not be changed orally, but only by an instrument in writing signed by the party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
9. Severability. The restrictions set forth in Sections 1, 2 and 3 shall
------------
be construed as independent covenants, and the existence of any claim or cause
of action against the Company, whether predicated upon this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
the restrictions contained in Sections 1, 2 or 3. If at any time any covenant
herein shall be deemed invalid or unenforceable by the laws of the jurisdiction
wherein it is to be enforced, by reason of being vague or unreasonable as to
duration, or geographic scope, or scope of activities restricted, or for any
other reason, this Agreement shall be considered divisible as to such portion
and such covenant shall become and be immediately amended and reformed to
include only such covenants as are enforceable by the court or other body having
jurisdiction of this Agreement; and Xxx-Xxxx and the Company
5
agree that such covenant, as so amended and reformed, shall be valid and binding
as though the invalid or unenforceable portion has not been included herein.
10. Headings. The headings of the sections contained in this Agreement
--------
are inserted for convenience only and do not form a part of or affect the
meaning, construction or scope thereof.
11. Counterparts. This Agreement may be executed in separate
------------
counterparts, none of which need contain the signatures of all parties, each of
which is deemed to be an original, and all of which taken together constitute
one and the same instrument. It shall not be necessary in making proof of this
Agreement to produce or account for more than the number of counterparts
containing the respective signatures of, or on behalf of, all the parties
hereto.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement,
or has caused this Agreement to be duly executed under seal and delivered in its
name and on its behalf, all as of the day and year first above written.
XXX-XXXX CO., INC.
By: /s/
-------------------------
Title:
XXXXXXXX AND XXXXXXX, INC.
By: /s/
-------------------------
Title:
6
