EXHIBIT 10.19
NON-COMPETITION AGREEMENT
THIS AGREEMENT is made and entered into this ___ day of April 2004, by
and between XRG, Inc., a Delaware corporation (referred to herein as the
"Company"), RSV, INC., a Tennessee corporation ("RSV"), and XXXXXXX XXXXXXX
("Seller").
RECITALS
A. RSV, pursuant to an Agreement and Plan of Merger dated ______ April,
2004 (the "Merger Agreement"), has agreed that XRG ACQUISITION SUB II, INC., a
Tennessee corporation and a wholly-owned subsidiary of XRG, shall be merged with
and into RSV, Inc.
B. Seller is an officer and director of RSV.
C. The Company is engaged in truckload transportation, such businesses
referred to herein as the "Trucking Business."
D. The Seller has acquired knowledge concerning the business, affairs
and customers of the RSV's Trucking Business and RSV and the Company desire to
insure that the Seller will not use the knowledge he has gained in the Trucking
Business to the detriment of RSV or the Company.
E. Section 6 A (vi a) of the Merger Agreement requires that the Company
and Seller enter into a non-competition agreement in a form satisfactory to RSV
as a condition to consummating the merger and accordingly the parties desire to
enter into this Agreement to fulfill this stated condition of the Merger
Agreement.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and payments to Seller as described below, the parties agree as follows:
1. Seller covenants and agrees that, for a period of one (1) year after
the Effective Time (as defined in the Merger Agreement), he will not, directly
or indirectly (whether as sole proprietor, partner, stockholder, director,
officer, employee, investor, consultant, principal, agent or in any other
capacity), do any of the following:
a. compete in any capacity or manner anywhere in the world
with RSV, the Company or any other Company Affiliate (as defined below) in the
Trucking Business;
b. influence or attempt to influence any of the customers of
the Company, RSV or any other Company Affiliate to transfer or divert their
business or patronage from the Company, RSV or any other Company Affiliate to
any other person or company engaged in a similar business;
c. disclose to any person or entity the names, addresses or
requirements of, or other confidential information or trade secrets relating to
the customers referred to in subsection (b), the prices charged to such
customers or the practices used in serving such customers;
d. in any other manner interfere with, disrupt or attempt to
disrupt the relationship, contractual or otherwise, between the Company, RSV or
any other Company Affiliate and any customer, supplier or employee of the
Company, RSV or any other Company Affiliate;
e. make any statement or perform any act intended to advance
an interest of any existing or prospective competitor of the Company, RSV or any
other Company Affiliate in any way that will or may injure an interest of the
Company, RSV or any other Company Affiliate;
f. discuss with any existing or potential customer of the
Company, RSV or any other Company Affiliate the present or future availability
of services or products where such services or products are competitive with
services or products which the Company, RSV or any other Company Affiliate
provides;
g. make any statement or do any act intended to cause existing
or potential customers of the Company, RSV or any other Company Affiliate to
make use of the services or purchase the products of any competitive business;
h. hire, engage, send any work to, place orders with, or in
any manner be associated with any supplier, contractor, subcontractor or other
person or firm which renders services, or sold any products, to the Company, RSV
or any other Company Affiliate if such
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actions by him would have a material adverse affect on the business, assets or
financial condition of the Company, RSV or any other Company Affiliate;
i. recruit or solicit any employee of the Company, RSV or any
other Company Affiliate, or induce or attempt to induce any employee of the
Company, RSV or any other Company Affiliate to terminate his or her employment
with, or otherwise cease his or relationship with, the Company, RSV or any other
Company Affiliate.
For purposes of this Agreement, the term "Company Affiliate"
shall refer to any person or entity which would be an "affiliate" of the Company
as such term is defined in rule 12b-2 under the Securities Exchange Act of 1934,
as amended.
2. Section 1 shall not prohibit the ownership by Seller of stock of a
publicly-held corporation (a corporation which is subject to the periodic
reporting requirements of the Securities Exchange Act of 1934, as amended) so
long as such stock comprises less than one percent (1%) of the issued and
outstanding stock of the same class of the issuing corporation.
3. In consideration of the Seller entering into this Non-Competition
Agreement, the Company agrees that immediately prior to the Effective Time that
it shall pay the Seller, a cash payment equal to Fifty Thousand Dollars
($50,000) per month for the twelve-month term of the agreement.
4. In the event the merger is not consummated pursuant to the Merger
Agreement, the terms and conditions of this Non-Competition Agreement will
become null and void any payment that the Company may have made to the Seller
pursuant to this Agreement shall be promptly refunded by the Seller to the
Company.
5. The Company and Seller acknowledge that, but for the Seller's
agreement to be bound by the terms of this Non-competition Agreement, RSV would
not have entered into the Merger Agreement.
6. The parties hereto agree that the periods of restriction and the
geographical areas of restriction imposed by the provisions of Section 1 are
fair and reasonable and are reasonably required for the protection of RSV and
the Company, in whose favor such restrictions operate.
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In the event that any part of this Agreement shall be held to be unenforceable
or invalid, the remaining parts thereof shall nevertheless continue to be valid
and enforceable as though the invalid portions were not a part hereof. In the
event that any of the restrictions set forth in Section 1 of this Agreement
shall be found by any court of competent jurisdiction to be unenforceable
because it exceeds the maximum enforceable area, scope or period of time, the
geographic area, scope and time shall, for the purposes of this Agreement, be
deemed to be the maximum area, scope or time period as to which it may be
enforceable.
8. The parties hereby agree that any violation by any party of the
covenants contained in this Agreement will cause irreparable damage to the party
in whose favor such covenants operate and the parties hereby agree that the
Company and RSV, in addition to such other remedies which may be available,
shall be entitled to specific performance and other injunctive relief.
9. All terms of this Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective legal representative,
successors and assigns.
10. This Agreement shall be governed by and construed in accordance
with the internal laws (and not the law of conflicts) of the State of Florida.
Any action, suit or other legal proceeding, which is commenced to resolve any
matter arising under or relating to any provision of this Agreement shall be
commenced only in a court of the State of Florida (or, if appropriate, a federal
court located within Florida), and the parties each consent to the jurisdiction
of such a court. This Agreement shall be modified only through a written
agreement executed by all of the parties hereto.
11. In the event the terms of this Agreement are breached in any
manner, the breaching party shall be responsible for all reasonable attorneys'
fees (including those incurred at trial and appellate levels) and all other
related costs incurred by the other party or parties arising out of such breach.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
XRG, INC.
By:________________________________
Its:_______________________________
Attest:___________________________
Print Name:_______________________
Title_____________________________
___________________________________
By:________________________________
Attest:___________________________
Print Name:_______________________
Title_____________________________
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