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EXHIBIT 10.2
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (this "Agreement") made as of the
____day of February, 1997, by and between SUN COAST HOLDINGS, INC., a Nevada
corporation ("Sun Coast"), and PLASTICS MANUFACTURING COMPANY, a Nevada
corporation ("PMC") (Sun Coast and PMC are sometimes referred to herein,
collectively, as the "Sun Coast Parties"), and Carlisle FoodService Products
Incorporated, a Delaware corporation ("Carlisle");
W I T N E S S E T H
WHEREAS, pursuant to that certain Agreement for Purchase and Sale of
Assets dated as of February 25, 1997, between the Sun Coast Parties and
Carlisle (the "Asset Agreement"), Carlisle is acquiring from the Sun Coast
Parties certain assets on the terms and conditions specified in the Asset
Agreement; and
WHEREAS, as a mutual condition of the obligations of the Sun Coast
Parties and Carlisle to consummate the transactions contemplated under the
Asset Agreement and as an integral part of the Asset Agreement, the Sun Coast
Parties have agreed to enter into this Agreement; and
WHEREAS, the protections afforded by this Agreement are necessary in
order for Carlisle to protect its business interests and the value of the
assets acquired pursuant to the Asset Agreement; and
WHEREAS, the Sun Coast Parties acknowledge and agree that this
Agreement places on them limitations as to the business or investment
activities they may pursue as well as the time during which and the geographic
area over which such limitations will remain in effect, which limitations are
deemed by the Sun Coast Parties and Carlisle to be reasonable and no greater
than are necessary under the circumstances to protect their business interests
and the value of the assets acquired pursuant to the Asset Agreement;
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NOW, THEREFORE, in consideration of the premises, the mutual promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally
bound, the parties hereto do hereby agree as follows:
1. Defined Terms. Capitalized terms that are used but not
defined herein shall have the respective meanings assigned to such terms in the
Asset Agreement.
2. Noncompetition: Sun Coast Parties.
(a) In consideration of the benefits to Sun Coast Parties under,
and as an integral part of, the Asset Agreement, the Sun Coast Parties agree
that during the three-year period commencing on the date hereof (the
"Restricted Period"), the Sun Coast Parties shall not, directly or indirectly,
and regardless of the reason for engaging in any such activities:
(i) in North America, own, manage, operate, control, invest
or acquire an interest in, or otherwise engage or participate in
(whether as an owner, member, partner, stockholder, consultant, joint
venture, investor, representative or other participant) any business
or entity that conducts a business or operation that is the same or
substantially similar to the Business as defined in the Asset
Agreement (the "Business"); provided, however, that the forgoing
provisions shall not prohibit the Sun Coast Parties from being a
passive investor in any publicly traded entity that conducts a
business or operation the same or substantially similar to the
Business as long as any such investment does not exceed five percent
of the outstanding equity securities of such entity; and provided
further, however, that notwithstanding the foregoing restrictions the
Sun Coast Parties shall be permitted to own, manage, operate, control,
invest or acquire an interest in, or otherwise engage or participate
in any business or entity that conducts a business or operation of the
type described on Exhibit A attached hereto, generally described as
the retail
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tableware business (such permitted business hereinafter referred to as
the "Permitted Activity");
(ii) except with respect to the Permitted Activity, attempt
in any manner to solicit from any customer or other business
relationship of Carlisle business of the type performed by Carlisle
for such party in the Business or to persuade any such party to cease
to do such business or to reduce the amount of such business which any
such party contemplates doing with Carlisle, whether or not the
relationship between Carlisle and any such party was originally
established in whole or in part through the efforts of the Sun Coast
Parties; or
(iii) except with respect to the Permitted Activity, render
to or for any customer or other business relationship of Carlisle any
services of the type rendered by Carlisle using the assets acquired
pursuant to the Asset Agreement; or.
(iv) employ, solicit, encourage, entice or induce any person
who is an employee of or to the Business at any time on or after the
date hereof to terminate his or her relationship with the Business.
(b) If the Sun Coast Parties commit a breach or are about to
commit a breach of any of the provisions of the Section 2(a), Carlisle shall
have the right to have the provisions of this Agreement specifically enforced
by any court having equity jurisdiction without being required to post bond or
other security and without having to prove the inadequacy of any other
available remedies, it being acknowledged and agreed that any such breach will
cause irreparable injury to Carlisle and that money damages will not provide an
adequate remedy to Carlisle. In addition, Carlisle may take all such other
actions and remedies available to it or them in law or in equity and shall be
entitled to such damages as it or they can show it or they have sustained by
reason of such breach.
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3. Reasonableness of Limitations. The Sun Coast Parties
acknowledge that the type and required for the protection of Carlisle and the
Business and the value of the assets acquired by Carlisle pursuant to the Asset
Agreement. Further, the time, scope, geographic area and other provisions of
Section 2 have been specifically negotiated by sophisticated parties and are
given as an integral part of the Asset Agreement. If any of the covenants in
Section 2, or any part thereof, is hereafter construed to be invalid or
unenforceable, it is the intention of the parties that the same shall not
affect the remainder of the covenant or covenants, which shall be given full
effect, without regard to the invalid portions. If any of the covenants
contained in Section 2, or any part thereof, is held to be unenforceable
because of the duration of such provision or the area covered thereby, the
parties agree that the court making such determination shall reduce the
duration and/or areas of such provision such that, in its reduced form, said
provision shall then be enforceable.
4. Notices. All notices, request, demands and other
communications required or permitted to be given or made hereunder by any party
hereto shall be in writing and shall be deemed to have been duly given or made
if (i) delivered personally, (ii) transmitted by first class registered or
certified mail, postage prepaid, return receipt requested, (iii) sent by
prepaid overnight courier service or (iv) sent by telecopy or facsimile
transmission, answer back requested, to the parties at the following addressees
(or at such other addresses as shall be specified by the parties by like
notice):
If to Carlisle:
Carlisle FoodService Products, Incorporated
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxx
Telefax: 000-000-0000
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Copy to:
Carlisle FoodService Products, Incorporated
00 X. X. 00xx Xxxxxx
Xxxxxxxx Xxxx, XX 00000-0000 (FedEx)
Attention Xxxxx X. Xxxxxxx, Xx.
Telefax: 000-000-0000
Carlisle Companies Incorporated
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Secretary and General Counsel
Telefax: 000-000-0000
If to the Sun Coast Parties:
c/o Sun Coast Holdings, Inc.
0000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention Xxxxx X. Xxxxx
Telefax: 000-000-0000
Such notices, requests, demands and other communications shall be
effective (i) if delivered personally or sent by courier service, upon actual
receipt by the intended recipient, (ii) if mailed, upon the earlier of five
days after deposit in the mail or the date of delivery as shown by the return
receipt therefor, or (iii) if sent by telecopy or facsimile transmission, when
the answer back is received.
5. Severability. Every provision in this Agreement is intended
to be severable. In the event that any provisions of this Agreement shall be
held to be invalid, the same shall not affect in any respect whatsoever the
validity of the remaining provisions of this Agreement.
6. Headings. The headings of this Agreement are for convenience
and shall not by themselves determine the interpretation of this Agreement.
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7. No Waiver. The failure of any party to insist upon strict
performance of a covenant hereunder or of any obligation hereunder,
irrespective of the length of time for which such failure continues, shall not
be a waiver of such party's right to demand strict compliance in the future.
No consent or waiver, express or implied, to or of any breach or default in the
performance of any obligation hereunder shall constitute a consent or waiver to
or of any other breach or default in the performance of the same or any
obligation hereunder.
8. Amendment. This Agreement may be changed, modified or amended
only by an instrument in writing duly executed by all of the parties hereto.
Any such amendment shall be effective as of such date as may be determined by
the parties hereto.
9. Choice of Law; The terms and provisions of Section 10.2
(regarding choice of law) of the Asset Agreement shall be applicable to this
Agreement and are incorporated herein for such purpose.
10. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which shall constitute
one and the same instrument.
11. Successors and Assigns. The parties hereto acknowledge that
the Sun Coast Parties on the one hand, Carlisle on the other, acting in
concert, shall have the right to assign any or all of their rights and
obligations under this Agreement to any affiliates, successors and assigns, and
this agreement will inure to the benefit of, and be binding upon, such
respective affiliates, successors and assigns, in the same manner and to the
same extent as if such affiliates, successors and assigns were original parties
hereto provided that no such assignment shall relieve any party of its
obligations hereunder.
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IN WITNESS WHEREOF, each of Sun Coast, PMC, and Carlisle FoodService
Products, Incorporated has caused this Agreement to be executed on its behalf
by its duly authorized officer as of the date first above written.
"Sun Coast"
Sun Coast Holdings, Inc.
By
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Name:
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Title:
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"PMC"
Plastics Manufacturing Company
By
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Name:
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Title:
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"Carlisle"
Carlisle FoodService Products, Incorporated
By
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Name:
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Title:
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EXHIBIT A
PERMITTED ACTIVITY
Manufacture, marketing and sale of plastic and melamine tableware to customers
for resale to the public, for use in the premium business and in the business
of children's art work known as Small Fry.
