EXHIBIT 2.2
NONCOMPETITION AGREEMENT
This Noncompetition Agreement (the "Agreement") is made and entered
into this 28th day of May, 1997, by and between _____________________
("Covenantor") and NEWPARK RESOURCES, INC., a Delaware corporation ("Newpark"),
ancillary to and as required by the Agreement and Plan of Reorganization (the
"Exchange Agreement") dated May 28, 1997, by and among Newpark, EXCALIBAR
MINERALS INC., a Texas corporation (the "Company"), and the "Stockholders" so
identified in the Exchange Agreement (including Covenantor), pursuant to which
Newpark will exchange 166,667 shares of the Common Stock of Newpark, $.01 par
value (the "Common Stock") for 100% of the capital stock of the Company (the
"Exchange"). Unless otherwise provided herein all terms used in this Agreement
that are defined in the Exchange Agreement shall have the same meanings herein
as in the Exchange Agreement.
In consideration of the foregoing, and in order to satisfy a condition
precedent to the consummation of the Exchange, Covenantor and Newpark hereby
agree and covenant as follows:
1. Certain Definitions. The following terms
used herein shall have the following meanings:
Affiliate or affiliate - a Person that directly or indirectly through
one or more intermediaries, controls, is controlled by or is under common
control with the Person specified. For purposes of this definition, "control"
(including the terms "controlling," "controlled by" and "under common control
with") of a Person means the possession, directly or indirectly, of the power to
(a) vote 50% or more of the voting interests in such Person or (b) direct or
cause the direction of the management and policies of such Person, whether by
contract or otherwise.
Business - Any one or more of the following activities: grinding and
milling of barite and other industrial minerals and selling, marketing, or
dealing in or with or otherwise soliciting orders for such services or the
output therefrom.
Competitor - Any Person that, directly or indirectly, engages in any
aspect of the Business within any portion of the Territory.
Person or person - Any individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or any agency or instrumentality thereof.
The Territory - All or any part of the following: the States of
Louisiana, Texas, Mississippi and Alabama and the Gulf of Mexico.
2. Noncompetition. Covenantor hereby agrees that he will not, during
the term of this Agreement, directly or indirectly, or through one or more
Affiliates, do any one or more of the following: (a) engage in any aspect of the
Business anywhere in the Territory, whether as an employee, agent, independent
contractor or otherwise ; (b) own any interest in any Competitor; (c) operate,
join, control or otherwise participate in any Competitor; (d) lend credit or
money for the purpose of assisting another to establish or operate any
Competitor; (e) request or advise any present or future customer or supplier of
the Company to withdraw, curtail or cancel its business in the Territory with
any of them; or (f) induce or influence (or attempt to induce or influence) any
person who is engaged (as an employee, agent, independent contractor or
otherwise) by the Company or any subsidiary in the Territory to terminate his or
her employment or engagement, perform any services for a Competitor or do
anything contrary to the best interests of the Company; provided, that nothing
herein shall prohibit Covenantor from holding an equity interest of less than 2%
of the outstanding capital stock of any Competitor whose equity securities are
traded on a national stock exchange or are quoted on Nasdaq.
3. Term. The term of this Agreement commences on the date hereof and
shall continue throughout the term of that certain Employment Agreement dated as
of May 28, 1997, by and between the Company and Covenantor, including any
amendments thereto and extensions thereof (the "Employment Agreement"), plus
twelve (12) months commencing upon the termination of the Employment Agreement.
Covenantor hereby acknowledges the receipt and sufficiency of full consideration
for this Agreement.
4. Injunctive Relief. Covenantor hereby stipulates and agrees that
any breach by him of this Agreement cannot be reasonably or adequately
compensated by damages in an action at law and that, in the event of such
breach, Newpark shall be entitled to injunctive relief, which may include but
shall not be limited to restraining Covenantor from engaging in any activity
that would constitute a breach of this Agreement.
5. Severability. Covenantor acknowledges that he has carefully read
and considered the provisions of Paragraphs 1 through 3 of this Agreement and,
having done so, agrees that the restrictions set forth therein (including but
not limited to the time periods of restriction and the geographical areas of
restriction) are fair and reasonable and are reasonably required to protect the
interests of Newpark and its stockholders. In the event that, notwithstanding
the foregoing, any of the provisions of Paragraphs 1 through 3 shall be held to
be invalid or unenforceable, the remaining provisions thereof shall nevertheless
continue to be valid and enforceable, as though the invalid or unenforceable
parts had not been included therein. In the event that any provision of
Paragraphs 1 through 3 hereof relating to time periods or areas of restriction
or both shall be declared by a court of competent jurisdiction to exceed the
maximum time periods or areas (or both) that such court deems reasonable and
enforceable, said time periods or areas of restriction or both shall be
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deemed to become and thereafter shall be the maximum time periods and areas
which such court deems reasonable and enforceable.
6. Entire Agreement. This Agreement constitutes the entire agreement
of Covenantor and Newpark with respect to the subject matter hereof and
supersedes all prior and contemporaneous oral agreements, understandings,
negotiations and discussions of the parties. No supplement, modification or
waiver of this Agreement shall be binding unless executed in writing by the
party to be bound thereby. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision hereof
(whether or not similar), nor shall such waiver constitute a continuing waiver
unless otherwise expressly provided. Any failure to insist on strict compliance
with any of the terms and conditions of this Agreement shall not be deemed a
waiver of any such terms or conditions.
7. Nature of Obligations. All covenants and obligations of
Covenantor hereunder shall be binding on Covenantor, his assigns, successors and
legal representatives and shall inure to the benefit of Newpark and all of its
Affiliates that engage in any aspect of the Business in any part of the
Territory.
8. Law Governing. The provisions of this Agreement and all rights
and obligations hereunder shall be governed by and construed in accordance with
the internal laws of the State of Texas applicable to contracts made and to be
wholly performed within the State of Texas.
9. Attorneys' Fees. In any litigation relating to this Agreement,
including litigation with respect to any supplement, modification or waiver of
this Agreement or any of its provisions, the prevailing party shall be entitled
to recover its costs and reasonable attorneys' fees.
10. Notices. Any and all notices, demands, requests or other
communications hereunder shall be in writing and shall be deemed duly given when
personally delivered to or transmitted by overnight express delivery or by
facsimile to and received by the party to whom such notice is intended, or in
lieu of such personal delivery or overnight express delivery or facsimile
transmission, 48 hours after deposit in the United States mail, first-class,
certified or registered, postage prepaid, return receipt requested, addressed to
the applicable party at the address provided below. Either party may change its
address for the purpose of this Paragraph 10 by giving notice of such change to
the other party in the manner which is provided in this Xxxxxxxxx 00.
Xxxxxxxxxx: ___________________________
___________________________
___________________________
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Newpark: Newpark Resources, Inc.
0000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Attention: Secretary
Facsimile No.: (000) 000-0000
11. Captions. The captions in this Agreement are included for
convenience of reference only, do not constitute a part hereof and shall be
disregarded in the interpretation or construction hereof.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
COVENANTOR NEWPARK RESOURCES, INC.
By /s/ Xxxxx X. Xxxx
________________________________ -------------------------
Xxxxx X. Xxxx, President
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