EXHIBIT 6.3
NON-COMPETITION AGREEMENT
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THIS NON-COMPETITION AGREEMENT ("Agreement") is dated as of the last day of
March, 2000, between XXXX PLASTIC ENTERPRISES, INC., an Ohio corporation (the
"Company"); and OURPET"S COMPANY and XX. XXXXXX XXXXXXX (collectively "the
Seller").
RECITALS
A. Pursuant to the terms of a certain Asset Purchase Agreement (the
"Asset Purchase Agreement") dated as of March 31, 2000 by and among the Seller
and, XXXX PLASTIC ENTERPRISES, INC., an Ohio corporation, (the "Company"), the
Company has agreed to purchase substantially all of the Sanar assets and Sanar
business from the Seller.
B. Xx. Xxxxxx Xxxxxxx is a shareholder of, and has heretofore been
employed in a management capacity by the Seller. In such capacity, the Xx.
Xxxxxxx has gained valuable experience and expertise in the business operations
of the Seller and has contributed to the commercial success of the Seller.
C. As a condition for Company to enter into the Asset Purchase Agreement
and the consummation of the transactions contemplated thereby (the "Closing"),
Company has required that Seller execute this Agreement.
D. In recognition of the foregoing and in order to otherwise ensure an
effective transfer of the business and goodwill of the Seller to the Company and
protect the interests of the Company in the assets and business acquired
pursuant to the Asset Purchase Agreement, the Company desires to enter into this
Agreement with the Seller.
NOW, THEREFORE, the parties hereto, for valuable consideration the
sufficiency of which is herein acknowledged and the covenants herein contained
and intending to be legally bound hereby, agree as follows:
Section 1. Definitions. Unless otherwise defined in this Agreement, all
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capitalized terms used herein shall have the meaning assigned to them in the
Asset Purchase Agreement. As used in this Agreement, the following terms shall
have the following respective meanings:
"Company Affiliate" shall mean any Person which directly or indirectly,
through one or more intermediaries, controls, or is controlled by or is under
common control with, the Company. For the purposes of this Agreement, "control"
when used with respect to any specified entity means the legal power to direct
the management and policies of such entity, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings relative to the foregoing.
"Competitive Activity or Business" shall mean any activity or business
involving (A) the
manufacture, processing, sale or distribution of blow molded plastics in any
manner or any market during the term of this Agreement, which compete with any
business operations of the Company or any Company Affiliate engaged in the above
described business of blow molded plastics, or (B) the supply, procurement,
sourcing or purchase of raw material for use in the manufacture or processing of
blow molded plastics in a manner which impairs the ability of the Company or any
Company Affiliate to secure adequate supplies of raw material.
"Customer" shall mean any person with whom the Company or the Seller has a
contract or purchase order pursuant to which the Company or Seller has shipped
goods within the previous 60-month period, provided services within the previous
60-month period, or has received an order to produce goods within the previous
60-month period. Upon written request by Seller to the Company as to whether a
particular Person is a Customer, the Company will notify the Seller whether that
Person is a Customer as herein defined.
"Person" shall mean any individual person, corporation, joint venture,
partnership or other business entity.
Section 2. Covenant Not to Compete.
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2.1. Activities Prohibited. Unless acting pursuant to the express
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written directions of the Board of Directors of the Company, the Seller agrees
that it will not at any time for a period of five years after the signing of the
Asset Purchase Agreement:
2.1.1. Engage or participate, directly or indirectly, in any Competitive
Activity or Business.
2.1.2. Serve as, act as or be an employee, agent, consultant,
representative, officer, director or investor (other than as an investor owning
not more than 1% of the voting securities of any publicly-traded corporation)
with or of, or receive any payment, directly or indirectly, in the way of
remuneration from, any person, firm, company or other business entity,
including, without limitation, an entity owned by a relative, which engages or
becomes engaged in any Competitive Activity or Business.
2.1.3. Attempt to induce or influence (a) any Customer or supplier of the
Company to cease doing business with the Company for any reason or (b) any
employee to leave the employ of the Company.
2.2. Reformation. In the event that the provisions of Section 2.1
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should ever be deemed to exceed the time, geographic or other limitations
permitted by applicable law, then such provisions shall be deemed reformed to
the maximum limitations permitted by applicable law.
2.3. Injunctive Relief. Seller specifically acknowledges and agrees that
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any remedy at law for any breach of the provisions of Section 2.1 will be
inadequate and that the Company, in addition to all other relief available to
it, shall be entitled to temporary and permanent injunctive relief without the
necessity of proving actual damage or any requirement to post any bond or other
security therefor.
2.4. Continued Effectiveness. Seller acknowledges and agrees that,
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notwithstanding any other provision to the contrary contained herein, the
provisions of this Section 2 shall survive the termination of this Agreement.
Section 3. Contents of Agreement, Parties in Interest, Assignment, etc.
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This Agreement sets forth the entire understanding of the parties hereto with
respect to the subject matter hereof. All of the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective heirs, representatives, successors and assigns of the parties
hereto. This Agreement shall not be amended except by written instrument duly
executed by the Company and Seller.
Section 4. Severability. If any provision of this Agreement is held to be
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unenforceable, by reason of any rule of law or public policy, the enforceable
provision which most nearly conforms to the unenforceable provision shall be
deemed to be in effect between the parties, and all other provisions of this
Agreement shall remain in full force and effect.
Section 5. Governing Law. This Agreement shall be construed and
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interpreted in accordance with the laws of the State of Ohio relating to
contracts to be performed in the State of Ohio.
Section 6. Notices. All notices, requests, demands and other
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communications to be given under this Agreement shall be in writing and shall be
deemed to have been duly given on the date of service if served personally on
the party to whom notice is to be given, or on the third business day after
mailing, if mailed to the party to whom notice is to be given, by certified or
registered mail, return receipt requested, postage prepaid and properly
addressed as follows:
If to the Company:
Xxxx Plastic Enterprises, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxx
With a copy to:
Xxxxxx X. Xxxx
Xxxx Xxxxxxxxxx Xxxxxxx Co., L.P.A.
000 Xxxxx Xxxx Xxxxxx
Xxxxx, Xxxx 00000
If to Seller:
OURPET'S COMPANY
0000 Xxxx Xxxxxx
Xxxxxxxx Xxxxxx, Xxxx 00000
Attn: Xxxxxx Xxxxxxx, President
With a copy to:
Xxxxxx, Xxxxxxx & Xxxxxx
800 Bank One Center
000 Xxxxxxxx Xxxxxx, Xxxx
Xxxxxxxxx, Xxxx 00000-0000
Section 7. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original but all of which shall
together constitute but one instrument, which may be sufficiently evidenced by
any counterpart.
The parties hereto have set their hands as of the day and year first above
written.
Xxxx Plastic Enterprises, Inc.
/s/ Xxxxx X. Xxxxxx. President
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Xxxxx X. Xxxxxx, President
Ourpet's Company
/s/ Xxxxxx Xxxxxxx
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Xx. Xxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx
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