Exhibit 2.4
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT is made and entered into as of the __
day of April, 1996, by and between Newpark Resources, Inc., a Delaware
corporation ("Newpark"), and Uni-Mat International, Inc., a Texas corporation
("Covenantor"), with reference to the following facts:
A. Newpark, JPI Acquisition Corp. ("Newco"), a Texas corporation and
a wholly-owned subsidiary of Newpark, X. Xxxxxx Interests, Inc., a Texas
corporation (the "Company"), Covenantor and Xxxxxx X. Xxxxxx, an individual (the
"Shareholder"), have entered into an Agreement and Plan of Reorganization, dated
April 8, 1996 and as amended April 8, 1996 and April 17, 1996 (the "Plan"),
which provides for the merger of the Company with and into Newco (the "Merger")
and the conversion of all of the outstanding shares of capital stock of the
Company into cash and shares of Common Stock of Newpark. The Shareholder owns
beneficially and of record all of the outstanding capital stock of the Company
and Covenantor.
B. The Company owns the exclusive right to use certain patents and
other intellectual property rights in connection with the use, sale and lease in
the United States of prefabricated mats for the construction of temporary roads
and worksites (other than for sale or lease to any department, bureau or agency
of the United States). Prior to the date hereof, Covenantor has been engaged in
the business of manufacturing, selling and leasing prefabricated mats which
incorporate the foregoing intellectual property rights.
C. Concurrently herewith, the parties thereto are consummating the
Merger and the other transactions contemplated by the Plan. This Agreement is
delivered as an incident to the continued goodwill of the business of the
Company and is a material inducement to the consummation by Newpark of the
transactions contemplated by the Plan.
D. Capitalized terms used herein that are not defined herein have the
meanings attributed to them in the Plan.
NOW, THEREFORE, in consideration of the foregoing and in order to
satisfy a condition precedent to the obligations of Newpark under the Plan, the
parties agree as follows:
1. Subject to the provisions of paragraph 3, Covenantor hereby agrees
that it will not, during the term of this Agreement, directly or indirectly,
engage in, or own any interest in any corporation, partnership, limited
liability company, proprietorship, joint venture, firm, trust or other entity
which engages in, the business of (a) providing, using, selling or leasing any
products, services, materials or supplies incorporating or using any of the
Technology, or (b) providing, using, selling or leasing prefabricated mats for
the construction of temporary roads or worksites for the site preparation
industry or otherwise providing, using, selling or
leasing temporary roads or worksites or any materials, supplies, products or
services related thereto or used in connection therewith, regardless, in the
case of clause (b), of whether such business involves any use of the Technology.
(All such entities other than the parties hereto are hereinafter referred to as
"Competitors", and the businesses described in the first sentence of this
paragraph are hereinafter collectively referred to as the "Business".) Anything
in this Agreement to the contrary notwithstanding, ownership of not more than
one percent (1%) of the capital stock of any corporation which has at least one
class of capital stock registered under Section 12 of the Securities Exchange
Act of 1934 shall not constitute a breach of this paragraph.
2. Covenantor hereby further agrees that it will not, during the term
of this Agreement, directly or indirectly: (a) operate, control or otherwise
participate in any Competitor; (b) lend credit or money for the purpose of
assisting another to establish or operate any Competitor; (c) request or advise
any present or future customer or supplier of the Business, as conducted by
Newpark and its Affiliates, to withdraw, curtail or cancel its business with
Newpark and its Affiliates; or (d) induce or influence (or attempt to induce or
influence) any person who is engaged (as an employee, agent, independent
contractor or otherwise) by Newpark or any of its Affiliates to terminate his or
her employment or engagement with Newpark or such Affiliate.
3. The provisions of this Agreement shall not be construed to in any
way limit the ability of Covenantor to: (a) directly sell or lease products or
services (including products or services incorporating or using the Technology)
to any department, bureau or agency of the United States; (b) perform its
obligations under the Manufacturing Agreement or the contracts listed on
Schedule 3.8(b) of the Plan; or (c) use, manufacture, sell or lease products or
services pursuant to the Excluded Rights; provided, however, anything herein to
the contrary notwithstanding, Covenantor may not sell or lease any products,
services, materials or supplies comprising a part of the Business to any state
or local government, or any department, bureau or agency thereof, or to any non-
governmental person for resale, directly or indirectly, to any department,
bureau or agency of the United States.
4. This Agreement shall commence on the date hereof and shall
continue until the later of December 28, 2010 or the latest expiration date of
any of the Patents licensed to the Company as part of the Intellectual Property
Assets, as the same may be extended from time to time.
5. In consideration of the obligations of Covenantor under this
Agreement, concurrently with the execution of this Agreement, Newpark has paid
to Covenantor the sum of $300,000, receipt of which is hereby acknowledged.
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6. The provisions of this Agreement shall cover competition
throughout the United States (the "Territory"), Covenantor hereby acknowledging
that (a) the Company and its Affiliates have sold products and services subject
to this Agreement to customers located in various localities throughout the
Territory, and (b) Newpark presently intends to continue to use, sell and lease
such products and services to customers located throughout the Territory.
7. Covenantor hereby stipulates and agrees that any breach by it of
this Agreement cannot be reasonably or adequately compensated by damages in an
action at law and that, in the event of any such breach, Newpark shall be
entitled to injunctive relief in addition to any other available remedies.
8. This Agreement shall be construed as a separate agreement covering
competition in each of the counties and states of the Territory, and, to the
extent that it shall be illegal or unenforceable in any one of said geographic
areas or after a term shorter than that set forth above, this Agreement shall
not be affected with respect to each other county and state for the maximum
period of time for which it may be enforced, this Agreement with respect to each
such geographic area being construed as severable and independent. If any
restriction contained in this Agreement is held by any court of competent
jurisdiction to be unenforceable, a lesser restriction as determined by such
court to be enforceable shall be severable therefrom and enforced in its place,
and the remaining restrictions contained herein shall be enforceable
independently therefrom.
9. Covenantor acknowledges and agrees that the provisions of this
Agreement are necessary to protect the interests of Newpark and the continued
goodwill of the business acquired by Newpark pursuant to the Plan and that the
restrictive covenants set forth herein are reasonable in scope and duration.
Covenantor further acknowledges and agrees that it has a material financial
interest in the consummation of the transactions contemplated by the Plan.
10. Unless the context indicates otherwise, all references to Newpark
herein shall be deemed to also include each and every person, corporation or
other entity which is in control of, controlled by or under common control with
it.
11. This Agreement shall inure to the benefit of and be binding upon
Newpark and its successors and assigns, including, without limitation, any
person, partnership, corporation or other entity which may succeed to the
business acquired by Newpark pursuant to the Plan, and shall inure to the
benefit of and be binding upon Covenantor and its successors.
12. All notices, requests or other communications provided for in or
to be given under this Agreement shall be in writing, may be delivered in
person, by telegraphic or other electronic means, by overnight air courier or by
mail, and shall be deemed to have been duly given and to have become effective
(a) upon receipt if delivered in person or by telegraphic
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or other electronic means, (b) one business day after having been delivered to
an overnight air courier or (c) three business days after having been deposited
in the mails as certified or registered matter, all fees prepaid, directed to
the parties at the following addresses (or at such other address as shall be
given in writing by a party hereto):
If to the Newpark:
Newpark Resources, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxx
If to Covenantor:
Uni-Mat International, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx
13. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, whether oral or written, between them relating to
the subject matter hereof. 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 by Newpark 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. All of Newpark's remedies are cumulative and
not alternative. Terms used herein in any number or gender include other
numbers or genders, as the context may require.
14. This Agreement shall be construed and governed by, and enforced
in accordance with, the internal laws of the State of Texas without reference to
its laws governing choice of law.
15. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Newpark Resources, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name:____________________
Title:___________________
Uni-Mat International, Inc.
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
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