1
EXHIBIT 2.7
AGREEMENT NOT TO COMPLETE
THIS AGREEMENT NOT TO COMPETE (the "Agreement"), is made and effective
as of the "Closing," as defined below, by and among ALTERNATIVE MATERIALS
TECHNOLOGY, a Nevada corporation ("AMT"), U.S. CELLULOSE CO., a California
corporation ("USCC"), and XXXXXXXXX XXXXXXXXX, an individual ("Xxxxxxxxx"), with
reference to the following facts:
RECITALS
1. AMT is engaged in the business of development, production and sale
of water-based and other coatings to industrial users (the "Business").
2. At the Closing (the "Closing"), as defined in that certain Stock
Purchase Agreement, dated October 15, 1999, by and among USCC, Xxxxxxxxx, and
AMT (the "Stock Purchase Agreement"), AMT will acquire from Xxxxxxxxx all of the
outstanding shares of capital stock of USCC.
3. In consideration of the covenants set forth in the Stock Purchase
Agreement, and as a material inducement to AMT to enter into the Stock Purchase
Agreement, AMT has required Xxxxxxxxx to enter into an agreement not to compete
with AMT and USCC, on the terms more particularly set forth below.
AGREEMENTS
NOW, THEREFORE, as a material inducement to AMT to enter into and close
the transaction contemplated by the Stock Purchase Agreement, and for other good
and valuable consideration, the value and receipt of which is hereby
acknowledged, the parties hereby agree as follows:
1. NON-COMPETITION. Subject to the limitations set forth below,
Xxxxxxxxx shall not, directly or indirectly, whether as an employee, consultant,
director, shareholder, member, partner, officer, investor, joint venturer,
and/or agent, or otherwise, engage in, have any interest in, lend Xxxxxxxxx'x
name or any similar name to, provide any finances or credit to, provide any
services or advice to, or otherwise participate in the management, ownership,
operation or control of, or be employed by or connected in any manner, with any
person, corporation, partnership (general or limited), limited liability
company, proprietorship, firm, association or other type of business or
enterprise which is engaged in any business in competition with the actual
Business of USCC or AMT, including but not limited to the development,
production and sale of water-based and other coatings to industrial or
commercial users, or with that business which USCC and/or AMT presently conducts
within Arizona, California, Nevada, Oregon, and Washington (the "Restriction
Area"). For the purposes of this Agreement, the term "USCC" shall be deemed to
include subsidiaries and parents of USCC. Nothing in this Agreement shall
restrict Xxxxxxxxx from investing in publicly-traded stock, bonds, mutual funds
or other securities or investment vehicles of companies in direct or indirect
competition with USCC and/or AMT.
-1-
2
2. DURATION. This Agreement shall continue for a period of five (5)
years from the Closing (the "Term"); provided however if Xxxxxxxxx breaches any
covenant set forth in this Agreement, the term of this Agreement shall be
extended by the duration of such breach.
3. REASONABLENESS. The parties have consulted with legal and other
counsel, and after such consultation, agree that the covenants contained in this
Agreement are reasonable and proper in all respects, including without
limitation, the substantive and geographic scope and duration. Without
limitation, the parties agree and intend that the covenants contained in this
Agreement shall be deemed to be a series of separate covenants and agreements,
one for each and every county of each state and political subdivision of the
United States. If, in any judicial proceeding, a court shall refuse to enforce
any part of the separate covenants deemed included herein, then at the option of
AMT, the covenant shall be deemed eliminated or revised to the extent necessary
to permit maximum enforceability of the remaining separate covenants in such a
proceeding, and the parties agree to amend the provisions of this Agreement
accordingly, without expanding the substantive or geographic scope or duration
thereof.
4. NON-SOLICITATION.
(1) During the Restriction Period, Xxxxxxxxx shall not either for
himself, or any other entity or person, (i) induce or attempt to induce any
customer, supplier, licensee or business relationship of AMT or USCC to cease
doing business with AMT or USCC, or in any way interfere with the relationship
between any customer, supplier, licensee or business relation of AMT or USCC;
(ii) use the mailing lists and marketing materials provided to AMT or USCC for
any competing business; (iii) encourage, solicit or offer incentives of any
kind, directly or indirectly, to any employees of AMT or USCC (1) to promote any
product or service which may be offered from time to time by Xxxxxxxxx, or (2)
to leave the employment of AMT or USCC for any reason except as may be required
in any bona fide termination decision regarding any AMT or USCC employee; (iv)
in any way interfere with the relationship between AMT or USCC and any such
employee of AMT or USCC; or (v) employ, or otherwise engage as an employee,
independent contractor or otherwise, any employee of AMT or USCC.
(2) As a separate and independent covenant, Xxxxxxxxx agrees that
during the Restriction Period, unless specifically approved by AMT, Xxxxxxxxx
shall not either for himself, or any other entity or person, in any way,
directly or indirectly, (i) call upon, solicit, advise or otherwise do, or
attempt to do, business which is competitive with AMT's or USCC's business with
any former customers of USCC or AMT, irrespective of whether USCC and/or
Xxxxxxxxx had any dealings with such customers prior to the Closing; or (ii)
take away or interfere or attempt to interfere with any custom, trade, business
or patronage of AMT or USCC; or (iii) interfere with or attempt to interfere
with any officers, employees, representatives or agents of AMT or USCC; or (iv)
induce or attempt to induce any officer, employee, representative or agent of
AMT or USCC to leave the employ of AMT or USCC, or violate the terms of their
contracts, or any employment arrangements, with AMT or USCC.
5. BREACH OF AGREEMENTS BY AMT OR USCC. Any material breach by AMT or
USCC of the Stock Purchase Agreement or any related agreement shall relieve
Xxxxxxxxx of any obligations under this Agreement.
-2-
3
6. BREACH BY XXXXXXXXX. The parties acknowledge and agree that the
covenants of the parties set forth in this Agreement are an essential element of
the Stock Purchase Agreement and that, but for the agreement of the parties to
comply with these covenants, AMT would not have entered into the Stock Purchase
Agreement. The parties further acknowledge and agree that any violation of this
Agreement by Xxxxxxxxx would cause immediate irreparable damage to AMT, and that
it would be extremely difficult or impossible to determine the amount of such
damage caused to AMT. The parties further acknowledge and agree that the remedy
at law for any breach of the Agreement will be inadequate and that, in addition
to any other relief to which AMT may be entitled, AMT shall be entitled to
injunctive or other equitable relief to restrain any breach or threatened breach
or otherwise to specifically enforce the provisions of this Agreement.
7. SEVERABILITY. If any of the provisions of this Agreement shall
contravene or be invalid under the laws of any state or other jurisdiction where
it is enforceable but for such contravention or invalidity, such contradiction
or invalidity shall not invalidate all of the provisions of this Agreement, but
rather, it shall be construed, insofar as the laws of that state or jurisdiction
are concerned, as not containing the provisions contravening or invalid under
the laws of that state or jurisdiction, and the rights and obligations created
hereby shall be construed and enforced accordingly. If, however, any such
contravening provision relates to the term of the covenants contained herein or
the geographic area or areas to which they apply, then such covenants shall be
construed as providing for the maximum time period and the widest geographic
area or areas which the laws of that state or jurisdiction permit; provided,
that such time period and geographic area shall never exceed the time period or
geographic area provided for herein.
8. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall inure
to the benefit of, and shall be binding upon, the parties' respective heirs,
successors and assigns, and as to Xxxxxxxxx, the personal representative of his
estate and his heirs and legatees.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and complete understanding of the parties hereto with respect to the subject
matter of this Agreement and supersedes all prior and contemporaneous written
and oral agreements and understandings between the parties with respect to the
subject matter of this Agreement.
10. AMENDMENTS; WAIVER. This Agreement may not be amended,
supplemented, canceled or discharged except by written instrument executed by
the party or parties affected thereby. Any and all prior agreements,
understandings or representations relating to Xxxxxxxxx'x agreement not to
compete with AMT are hereby terminated and canceled in their entirety and are of
no further force or effect. No failure to exercise and no delay in exercising,
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude the exercise of any other right, power or privilege (hereunder or
otherwise). No waiver of any breach of any agreement hereunder or any other
agreement shall be deemed to be a waiver of any preceding or succeeding breach
of the same or any other agreement.
11. REMEDIES CUMULATIVE. No remedy conferred upon any party by this
Agreement is intended to be exclusive of any other remedy, and each and every
such remedy shall be cumulative
-3-
4
and shall be in addition to any other remedy given hereunder or now or hereafter
existing at law or in equity.
12. SECTION HEADINGS. The section headings used herein are inserted for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws (and not the laws of conflicts) of the State
of California.
14. ATTORNEYS' FEES. If any party to this Agreement shall bring any
action, suit, counterclaim, appeal, or arbitration for any relief against the
other, declaratory or otherwise, to enforce the terms hereof or to declare
rights hereunder (collectively, an "Action"), the losing party shall pay to the
prevailing party a reasonable sum for attorneys' fees and costs incurred in
bringing and prosecuting such Action and/or enforcing any judgment, order,
ruling or award (collectively, a "Decision") granted therein, all of which shall
be deemed to have accrued on the commencement of such Action and shall be paid
whether or not such Action is prosecuted to a Decision. Any Decision entered in
such Action shall contain a specific provision providing for the recovery of
attorneys' fees and costs incurred in enforcing such Decision. The court or
arbitrator may fix the amount of reasonable attorneys' fees and costs on the
request of either party. For the purposes of this paragraph, attorneys' fees
shall include, without limitation, fees incurred in the following: (a)
postjudgment motions and collection actions; (b) contempt proceedings; (c)
application for temporary or preliminary injunctive relief; (d) discovery; and
(e) bankruptcy litigation. "Prevailing party" within the meaning of this
paragraph includes, without limitation, a party who agrees to dismiss an Action
on the other party's payment of the sums allegedly due or performance of the
covenants allegedly breached, or who obtains substantially the relief sought by
it.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-4-
5
16. DRAFTING. The parties to this Agreement agree that this Agreement
is the product of joint draftsmanship and negotiation and that should any of the
terms be determined by a court, or in any type of quasi-judicial or other
proceeding, to be vague, ambiguous and/or unintelligible, that the same
sentences, phrases, clauses or other wordage or language of any kind shall not
be construed against the drafting party in accordance with California Civil Code
Section 1654, and that each such party to this Agreement waives the effect of
such statute.
IN WITNESS WHEREOF, the parties have executed this Agreement as set
forth below.
AMT:
ALTERNATIVE MATERIALS TECHNOLOGY, a
Nevada corporation
Date: October 18, 1999 By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
President
Date: October 18, 1999 By: /s/ X. Xxxxxxxx Xxxxxxxx
---------------------------------------
X. Xxxxxxxx Xxxxxxxx
Assistant Secretary/Treasurer and Director
USCC:
U.S. CELLULOSE CO., a California corporation
Date: October 18, 1999 By: /s/ Xxxxxxxxx Xxxxxxxxx
---------------------------------------
Xxxxxxxxx Xxxxxxxxx
President
XXXXXXXXX:
Date: October 18, 1999 By: /s/ Xxxxxxxxx Xxxxxxxxx
---------------------------------------
Xxxxxxxxx Xxxxxxxxx
-5-
