Exhibit 99.5
Exhibit 2.4(a)(iv)
Part 2
NONCOMPETITION AGREEMENT
This Noncompetition Agreement (this "Agreement") is made as of
September 29, 1999, by and between United Xxxxxxx Corporation, a
Colorado corporation ("Buyer"), and Xxxxxxx X. Xxxxxxxx, residing
at _________________ ("Seller").
RECITALS
Concurrently with the execution and delivery of this Agreement,
Buyer is purchasing all of the outstanding shares (the "Shares")
of common stock, no par value, of Pittsfield Mold & Tool, Inc.
(the "Company") pursuant to the terms and conditions of a Stock
Purchase Agreement made as of September 29, 1999, (the "Stock
Purchase Agreement"), and certain real property and assets (the
"Property") pursuant to a Real Property Purchase Agreement made as
of September 29, 1999 (the "Real Property Purchase Agreement").
Section 2.4(a)(iv) of the Stock Purchase Agreement requires that
noncompetition agreements be executed and delivered by each of
Seller and Xxxxx X. Xxxxxxxx ("HJK") as a condition to the
purchase of the Shares by Buyer.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
Capitalized terms not expressly defined in this Agreement shall
have the meanings ascribed to them in the Stock Purchase
Agreement.
2. ACKNOWLEDGMENTS BY SELLER
Seller acknowledges that (a) Seller has occupied a position of
trust and confidence with the Acquired Companies prior to the date
hereof and has become familiar with the following, any and all of
which constitute confidential information of the Acquired
Companies, (collectively the "Confidential Information"): (i) any
and all trade secrets concerning the business and affairs of the
Acquired Companies, product specifications, data, know-how,
formulae, compositions, processes, designs, sketches, photographs,
graphs, drawings, samples, inventions and ideas, past, current and
planned research and development, current and planned
manufacturing and distribution methods and processes, customer
lists, current and anticipated customer requirements, price lists,
market studies, business plans, computer software and programs
(including object code and source code), computer software and
database technologies, systems, structures and architectures (and
related processes, formulae, compositions, improvements, devices,
know-how, inventions, discoveries, concepts, ideas, designs,
methods and information, of the Acquired Companies and any other
information, however documented, of the Acquired Companies that is
a trade secret within the meaning of applicable law; (ii) any and
all information concerning the business and affairs of the
Acquired Companies (which includes historical financial
statements, financial projections and budgets, historical and
projected sales, capital spending budgets and plans, the names and
backgrounds of key personnel, personnel training and techniques
and materials, however documented; and (iii) any and all notes,
analysis, compilations, studies, summaries, and other material
prepared by or for the Acquired Companies containing or based, in
whole or in part, on any information included in the foregoing,
(b) the business of the Acquired Companies is national in scope,
(c) its products and services are marketed throughout the United
States; (d) the Acquired Companies compete with other businesses
that are or could be located in any part of the United States;
(e) Buyer has required that Seller make the covenants set forth in
Sections 3 and 4 of this Agreement as a condition to the Buyer's
purchase of the Shares owned by Seller and HAK; (f) the provisions
of Sections 3 and 4 of this Agreement are reasonable and necessary
to protect and preserve the Acquired Companies' business, and
(g) the Acquired Companies would be irreparably damaged if Seller
were to breach the covenants set forth in Sections 3 and 4 of this
Agreement.
3. CONFIDENTIAL INFORMATION
Seller acknowledges and agrees that all Confidential Information
known or obtained by Seller, whether before or after the date
hereof, is the property of the Acquired Companies. Therefore,
Seller agrees that Seller will not, at any time, disclose to any
unauthorized Persons or use for his own account or for the benefit
of any third party any Confidential Information, whether Seller
has such information in Seller's memory or embodied in writing or
other physical form, without Buyer's written consent, unless and
to the extent that the Confidential Information is or becomes
generally known to and available for use by the public other than
as a result of Seller's fault or the fault of any other Person
bound by a duty of confidentiality to Buyer or the Acquired
Companies. Seller agrees to deliver to Buyer at the time of
execution of this Agreement, and at any other time Buyer may
request, all documents, memoranda, notes, plans, records, reports,
and other documentation, models, components, devices, or computer
software, whether embodied in a disk or in other form (and all
copies of all of the foregoing), relating to the businesses,
operations, or affairs of the Acquired Companies and any other
Confidential Information that Seller may then possess or have
under Seller's control.
4. NONCOMPETITION
As an inducement for Buyer to enter into the Stock Purchase
Agreement and Real Property Purchase Agreement and as additional
consideration for the consideration to be paid to Seller under the
Stock Purchase Agreement and Real Property Purchase Agreement,
Seller agrees that:
(a) For a period of six years after the Closing:
(i) Seller will not, directly or indirectly, engage or invest in,
own, manage, operate, finance, control, or participate in the
ownership, management, operation, financing, or control of, be
employed by, associated with, or in any manner connected with,
lend Seller's name or any similar name to, lend Seller's credit
to, or render services or advice to, any business whose products
or activities compete in whole or in part with the products or
activities of the Company, anywhere within the United States;
provided, however, that Seller may purchase or otherwise acquire
up to (but not more than) one percent of any class of securities
of any enterprise (but without otherwise participating in the
activities of such enterprise) if such securities are listed on
any national or regional securities exchange or have been
registered under Section 12(g) of the Securities Exchange Act of
1934. Seller agrees that this covenant is reasonable with respect
to its duration, geographical area, and scope.
(ii) Seller will not, directly or indirectly, either for himself
or any other Person, (A) induce or attempt to induce any employee
of an Acquired Company to leave the employ of such Acquired
Company, (B) in any way interfere with the relationship between an
Acquired Company and any employee of such Acquired Company,
(C) employ, or otherwise engage as an employee, independent
contractor, or otherwise, any employee of an Acquired Company, or
(D) induce or attempt to induce any customer, supplier, licensee,
or business relation of an Acquired Company to cease doing
business with such Acquired Company, or in any way interfere with
the relationship between any customer, supplier, licensee, or
business relation of an Acquired Company.
(iii) Seller will not, directly or indirectly, either for himself
or any other Person, solicit the business of any Person known to
Seller to be a customer of an Acquired Company, whether or not
Seller had personal contact with such Person, with respect to
products or activities which compete in whole or in part with the
products or activities of the Company;
(b) In the event of a breach by Seller of any covenant set forth
in Subsection 4(a) of this Agreement, the term of such covenant
will be extended by the period of the duration of such breach;
(c) Seller will not, at any time during or after the six year
period, disparage Buyer or the Acquired Companies, or any of their
shareholders, directors, officers, employees, or agents; and
(d) Seller will, for a period of six years after the Closing,
within ten days after accepting any employment, advise Buyer of
the identity of any employer of Seller. Buyer or an Acquired
Company may serve notice upon each such employer that Seller is
bound by this Agreement and furnish each such employer with a copy
of this Agreement or relevant portions thereof.
5. REMEDIES
If Seller breaches the covenants set forth in Sections 3 or 4 of
this Agreement, Buyer and the Acquired Companies will be entitled
to the following remedies:
(a) Damages from Seller;
(b) To offset against any and all amounts owing any Seller under
the Stock Purchase Agreement, Real Property Purchase Agreement, or
Promissory Note any and all amounts which Buyer or the Acquired
Companies claim under Subsection 5(a) of this Agreement; and
(c) In addition to its right to damages and any other rights it
may have, to obtain injunctive or other equitable relief to
restrain any breach or threatened breach or otherwise to
specifically enforce the provisions of Sections 3 and 4 of this
Agreement, it being agreed that money damages alone would be
inadequate to compensate the Buyer and the Acquired Companies and
would be an inadequate remedy for such breach.
6. BUYER'S DEFAULT
Notwithstanding any other provisions of this Agreement, in the
event there is a "USC Default" as that term is defined in a
certain Cross-Default and Cross-Collateral Agreement of even date
executed by Buyer, Xxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx,
then, and in such a case, said USC Default shall constitute a
default of Buyer's obligations under this Agreement which shall
release Seller of all restrictive covenants described herein.
7. SUCCESSORS AND ASSIGNS
This Agreement will be binding upon Buyer, the Acquired Companies
and Seller and will inure to the benefit of Buyer and the Acquired
Companies and their affiliates, successors and assigns and Seller
and Seller's assigns, heirs and legal representatives.
8. WAIVER
The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay
by any party in exercising any right, power, or privilege under
this Agreement will operate as a waiver of such right, power, or
privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of
such right, power, or privilege or the exercise of any other
right, power, or privilege. To the maximum extent permitted by
applicable law, (a) no claim or right arising out of this
Agreement can be discharged by one party, in whole or in part, by
a waiver or renunciation of the claim or right unless in writing
signed by the other party; (b) no waiver that may be given by a
party will be applicable except in the specific instance for which
it is given; and (c) no notice to or demand on one party will be
deemed to be a waiver of any obligation of such party or of the
right of the party giving such notice or demand to take further
action without notice or demand as provided in this Agreement.
9. GOVERNING LAW
This Agreement will be governed by the laws of the State of Ohio
without regard to conflicts of laws principles.
10. JURISDICTION; SERVICE OF PROCESS
Any action or proceeding seeking to enforce any provision of, or
based on any right arising out of, this Agreement may be brought
against any of the parties in the courts of the State of Ohio,
County of Xxxxxxxx, or, if it has or can acquire jurisdiction, in
the United States District Court for the Southern District of
Ohio, and each of the parties consents to the jurisdiction of such
courts (and of the appropriate appellate courts) in any such
action or proceeding and waives any objection to venue laid
therein. Process in any action or proceeding referred to in the
preceding sentence may be served on any party anywhere in the
world.
11. SEVERABILITY
Whenever possible each provision and term of this Agreement will
be interpreted in a manner to be effective and valid but if any
provision or term of this Agreement is held to be prohibited by or
invalid, then such provision or term will be ineffective only to
the extent of such prohibition or invalidity, without invalidating
or affecting in any manner whatsoever the remainder of such
provision or term or the remaining provisions or terms of this
Agreement. If any of the covenants set forth in Section 4 of this
Agreement are held to be unreasonable, arbitrary, or against
public policy, such covenants will be considered divisible with
respect to scope, time, and geographic area, and in such lesser
scope, time and geographic area, will be effective, binding and
enforceable against Seller.
12. 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.
13. SECTION HEADINGS, CONSTRUCTION
The headings of Sections in this Agreement are provided for
convenience only and will not affect its construction or
interpretation. All references to "Section" or "Sections" refer to
the corresponding Section or Sections of this Agreement unless
otherwise specified. All words used in this Agreement will be
construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word
"including" does not limit the preceding words or terms.
14. NOTICES
All notices, consents, waivers, and other communications under
this Agreement must be in writing and will be deemed to have been
duly given when (a) delivered by hand (with written confirmation
of receipt), (b) sent by facsimile (with written confirmation of
receipt), provided that a copy is mailed by registered mail,
return receipt requested, or (c) when received by the addressee,
if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and
facsimile numbers set forth below (or to such other addresses and
facsimile numbers as a party may designate by notice to the other
parties):
Seller:
Xxxxx X. Xxxxxxxx
_________________
_________________
with a copy to:
Xxxxxx & Xxxxxxxx, LLP
000 Xxxxx Xxxxxx, # 000
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Xx.
Facsimile No.: _______________
Buyer:
United Xxxxxxx Corporation
000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: President
Facsimile No.: 000-000-0000
with a copy to:
Xxxxxxxx & Shohl LLP
1900 Chemed Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Xx., Esq.
Facsimile No.: (000) 000-0000
14. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the
parties with respect to the subject matter of this Agreement and
supersedes all prior written and oral agreements and
understandings between Buyer and Seller with respect to the
subject matter of this Agreement. This Agreement may not be
amended except by a written agreement executed by the party to be
charged with the amendment.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
Buyer:
UNITED XXXXXXX CORPORATION
By: /s/Xxxxxx X. Xxxxxxxxx, Xx.
Xxxxxx X. Xxxxxxxxx, Xx.
Its: President
Seller:
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
