EXHIBIT 10.09
NON-COMPETITION AGREEMENT
THIS AGREEMENT, by and between Falcon Building Products, Inc. (the
"Company") and Xxxxxxx X. Xxxxx (the "Shareholder/Employee") effective as of
March 31, 1997 (the "Effective Date"),
WITNESSETH THAT:
WHEREAS, the Shareholder/Employee is an officer and shareholder of the
Company; and
WHEREAS, as a condition and inducement to an Agreement and Plan of Merger
between the Company and [Merger Co.] (the "Merger Agreement") and as a condition
to the Employment Agreement entered into on this date between the Company and
the Shareholder/Employee the Company and the Shareholder/Employee desire to
enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and agreements set forth
herein and for other good and valuable consideration the receipt of which is
hereby acknowledged, it is agreed by the Shareholder/Employee and Company as
follows:
1. PAYMENT BY COMPANY. The Company hereby agrees to pay the
Shareholder/Employee $275,000 on the date as of which the merger is effective
under the terms of the Merger Agreement (the "Merger Date").
2. NONCOMPETITION. Until the later of three years after the Merger Date
or one year after the date on which the Shareholder/Employee's employment with
the Company and its affiliates is terminated for any reason, the
Shareholder/Employee covenants and agrees that, except to the extent agreed to
in writing by the Company, he will not, directly or indirectly, engage in,
assist, perform services for, plan for, establish or open, or have any financial
interest (other than (i) ownership of 1% or less of the outstanding stock of
any corporation listed on the New York or American Stock Exchange or included in
the National Association of Securities Dealers Automated Quotation System or
(ii) ownership of securities in any entity affiliated with the Company) in any
person, firm, corporation, or business entity (whether as an owner, joint
venturer, employee, officer, director, consultant or otherwise) that engages in
an activity which is materially competitive with any business engaged in by the
Company during the period of the Employee/Shareholder's employment with the
Company.
3. CONFIDENTIAL INFORMATION. Except as may be required by the lawful
order of a court or agency of competent jurisdiction, or except to the extent
that the Shareholder/Employee has express authorization from the Company, the
Shareholder/Employee agrees to keep secret and confidential
indefinitely all non-public information concerning the Company or any
affiliate of the Company which was acquired by or disclosed to the
Shareholder/Employee during the course of his employment with the Company or
its affiliates, including but not limited to customer lists, price lists,
customer services requirements, costs of providing services, supplier
information, and other data of or pertaining to the Company or to any
affiliate of the Company which are not a matter of public knowledge, and not
to disclose such confidential information, either directly or indirectly, to
any other person, firm or business entity or to use it in any way.
Shareholder/Employee agrees that promptly upon termination of his employment
with the Company for any reason, he shall deliver to the Company all papers,
documents and materials containing confidential information regarding the
Company and its affiliates in whatever form, including computer-readable
storage devices, and wherever located, obtained by him during the course of
employment by the Company or its affiliates.
4. NONSOLICITATION. Until the later of three years after the Merger Date
or one year after the date on which the Shareholder/Employee's employment with
the Company and its affiliates terminates for any reason, the
Shareholder/Employee covenants and agrees that he will not, whether for himself
or for any other person, business, partnership, association, firm, company or
corporation, directly or indirectly, call upon, solicit, divert or take away or
attempt to solicit, divert or take away, any of the employees of the Company.
5. REMEDIES. The Shareholder/Employee acknowledges that the Company
would be irreparably injured by a violation of paragraph 2, 3 or 4, and he
agrees that the Company, in addition to any other remedies available to it for
such breach or threatened breach, shall be entitled to an injunction, temporary
restraining order or other equivalent relief, restraining Shareholder/Employee
from any actual or threatened breach of any such paragraph, without any bond or
other security being required.
6. SEVERABILITY AND ENTIRE AGREEMENT. The invalidity or unenforceability
of any provision of this Agreement will not affect the validity or
enforceability of any other provision of this Agreement, and this Agreement will
be construed as if such invalid or unenforceable provision were omitted (but
only to the extent that such provision cannot be appropriately reformed or
modified). The Agreement is intended to be the entire agreement between the
parties regarding the subject matter hereof and shall supersede any prior
agreements to the contrary.
7. APPLICABLE LAW. The provisions of this Agreement shall be construed in
accordance with the laws of the State of Illinois.
8. SUCCESSORS. This Agreement shall be binding upon, and operate for the
benefit of, the Company and its successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
FALCON BUILDING PRODUCTS, INC. SHAREHOLDER/EMPLOYEE
By: /s/ Xxx Xxxxx /s/ Xxxxxxx X. Xxxxx
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Senior Vice-President
