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Exhibit 10.24
NONCOMPETITION AGREEMENT
AGREEMENT DATED AS OF OCTOBER 31, 1995 BETWEEN XXXX TECHNOLOGIES, INC. AND
XXXX XXXXXXX.
The parties agree as follows:
1. THE PARTIES
(a) The parties to this agreement are Xxxx Technologies, Inc. and Xxxx
XxXxxxx.
(b) Xxxx Technologies, Inc. is a Delaware corporation. It has an office at
000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000. It is referred to below as
"Xxxx".
(c) Xxxx XxXxxxx is an individual person. His address is 0 Xxxxxxxxxxx
Xxxxx, Xxxxxxxx, X 07405. He is referred to below as "Former Employee".
2. ACKNOWLEDGEMENTS
(a) Before the effective date of this agreement, Former Employee was a
senior officer and a director of Xxxx. Former Employee acknowledges that during
the course of his employment with Xxxx, he gained extensive knowledge concerning
several aspects of Dawn's business. In addition, Former Employee acknowledges
that he gained information of a confidential and proprietary nature relating to
Xxxx and its business.
(b) In consideration of the payments and other consideration provided for
herein, Former Employee shall be bound by the covenants set forth herein.
3. COVENANT NOT TO COMPETE
(a) During the term of this agreement, Former Employee shall not do any of
the following:
(i) Former Employee shall not conduct any business involving the
manufacture, assembly or sale of any product actually or proposed to be
manufactured, assembled or sold by Xxxx or any of its subsidiaries during his
employment by Xxxx.
(ii) Former Employee shall not directly or indirectly render any services
of any nature, including advisory services, to any manufacturer or seller of any
product actually or proposed to be manufactured or sold by Xxxx or any of its
subsidiaries at any time during his employment by Xxxx.
(iii) Former Employee shall not invest in, solicit others to invest in or
otherwise render financial assistance to any manufacturer or seller of any
product actually or proposed to be manufactured or sold by Xxxx or any of its
subsidiaries during his employment by Xxxx.
(b) During the term of this agreement and for two years thereafter, Former
Employee shall not do any of the following:
(i) Former Employee shall not disclose any information reasonably known
to him to be proprietary or confidential information belonging to Xxxx or any of
its subsidiaries.
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(ii) Former Employee shall not hire or solicit the employment of any
person who was employed by Xxxx or any of its subsidiaries at any time during
the calendar year preceding the hiring or solicitation.
(c) The prohibitions set forth in subsections (a) and (b) shall apply to
the acts of Former Employee individually or the acts of Former Employee through
any corporation, partnership or other entity with which he may be associated.
Former Employee shall be deemed to be associated with any entity of which he is
an officer, director, consultant, agent, employee, stockholder, partner or
owner.
(d)(i) The prohibitions set forth in subsections (a), (b) and (c) shall not
apply to actions taken at the request, or with the consent of or for the benefit
of Xxxx.
(ii) The prohibitions set forth in subsections (a), (b) and (c) shall not
prohibit Former Employee from owning publicly traded investment securities in
any corporation or other entity if he owns no more than five (5%) percent of the
total outstanding securities of any class of that corporation or other entity or
no more than five (5%) percent of the total voting securities of that
corporation or other entity.
4. REMEDIES
Former Employee acknowledges that the rights of Xxxx under this agreement
are of a specialized and unique character and that a breach, or threatened
breach of this agreement by Former Employee, will cause Xxxx irreparable injury
and damage which cannot be reasonably or adequately compensated in damages or in
action at law. In the event of a violation of the terms of this agreement, Xxxx
shall, in addition to any other relief, be entitled to injunctive relief in any
court of competent jurisdiction.
5. PROVISIONS CONCERNING REMEDIES
(a) The failure of either party to require performance by the other party
of any provision of this agreement shall in no way affect the right of that
party to enforce that provision at any other time, nor shall it affect the
party's right to enforce any other provision of this agreement. The waiver by
any party of a breach of any provision of this agreement shall not be taken or
held to be a waiver of any subsequent breach of the provision or as a waiver of
the provision itself.
(b) If it is determined that any provision of this agreement is too broad
or otherwise unenforceable for any reason, Former Employee expressly agrees that
any court of competent jurisdiction may narrow the terms of the provision so as
to render them enforceable according to their intent and purpose.
6. COMPENSATION
(a) As full compensation for his compliance with his covenants contained
herein, Xxxx shall provide Former Employee with the consideration set forth
below in this subsection.
(i) Xxxx shall pay Former Employee his salary at the rate previously
paid to him during calendar year 1995 through October 31, 1995.
(ii) Xxxx shall pay Former Employee Sixty Thousand ($60,000.00)
Dollars on or before March 31, 1996. At least Fifteen Thousand ($15,000.00)
Dollars of the foregoing Sixty Thousand ($60,000.00) Dollars has been paid to
Former Employee.
(iii) Xxxx shall provide Former Employee with health insurance
coverage to the same extent previously provided to him by Xxxx until the
earlier to occur of his eligibility to participate in a new employer's health
insurance plan or December 31, 1996.
(iv) Xxxx has previously issued to Former Employee 237,500 shares of
its Common Stock pursuant to Dawn's Stock Bonus Plan which have, as of the date
hereof, not become vested. The foregoing 237,500 shares of Common Stock of Xxxx
are deemed vested and the property of Former Employee. Xxxx waives any rights
pursuant to its Stock Bonus Plan to repurchase said shares.
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(v) (1) Xxxx shall pay Former Employee an amount (the "Commission")
equal to one-half of one percent (1/2 of 1%) of "CBU Revenues" for any calendar
quarter if the net profits on sales of CBU's for that quarter were at least ten
(10%) percent, or one-quarter of one percent (1/4 of 1%) of "CBU Revenues" if
the net profits on sales of CBU's for that calendar quarter were at least five
(5%) percent. A "CBU" is a collection box unit which was the subject of the
agreement made the 16th day of May, 1995 by and among Xxxx and Xxxxxx Xxxxx,
Inc. Commissions shall not be payable on CBU Revenues in excess of Twenty-five
Million ($25,000,000.00) Dollars.
(2) "Revenues" mean all cash compensation actually received by
Xxxx on a cumulative basis from all sales, leases, licenses and other
conveyances of all CBU's hereafter manufactured by, or under authority of, Xxxx
and/or any of its subsidiaries, less sales taxes, shipping costs, and actual
returns for which refunds or credits have been given.
(3) The Commission shall be payable quarterly within twenty (20)
days after the end of each calendar quarter with respect to Revenues received by
Xxxx and/or any of its subsidiaries during the preceding quarter, less an amount
equal to the aggregate refunds or credits actually given by Xxxx for returned
items. Payment of the Commission shall be accompanied by a written report
setting forth sufficient information to permit the calculation by Former
Employee of the Commission due hereunder.
(b) Except as provided in subsection (a), this agreement shall not entitle
Former Employee to receive any benefits made available by Xxxx to any of its
officers or other employees.
7. TERM
(a) The term of this agreement shall continue until the third anniversary
of the date hereof.
(b) This agreement shall terminate automatically upon the death of Former
Employee. However, Xxxx shall be required to pay Former Employee's estate any
amounts payable to him hereunder which accrue before that date.
8. CHOICE OF LAW
This agreement shall be governed by and construed in accordance with the
laws of the State of New York, without regard to principles of conflicts of law.
9. NOTICES
Notices given under this agreement shall be valid only if in writing and
properly mailed. A notice shall be properly mailed only if mailed by certified
or registered mail, postage prepaid, and if the notice is properly addressed. A
notice to a party shall be properly addressed only if addressed to the address
of the party set forth in Article 1 or to any other address as the party may
designate by giving notice to the other party. A notice shall be deemed given
when it is properly mailed.
10. INTERPRETATION
(a) Captions and headings used in this agreement are for reference only.
(b) A male or female person may be referred to in this agreement by a
neuter pronoun. A person other than an individual person may be referred to in
this agreement by a personal pronoun. The singular includes the plural and the
plural includes the singular.
(c) A provision of this agreement which requires a party to perform an
action shall be construed so as to require the party to perform the action or to
cause the action to be performed. A provision of this agreement which prohibits
a party from performing an action shall be construed so as to prohibit the party
from performing the action or permitting others to perform the action on the
party's behalf.
(d) "Including" means "including but not limited to". "Any" means "any and
all". "May" means "may but shall not be obligated to".
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For purposes of this agreement, Former Employee's employment by Xxxx shall be
deemed to have continued through the term of this agreement.
(e) This agreement may not be changed or cancelled orally.
11. BINDING EFFECT
This agreement shall be binding upon the parties and their respective
successors and assigns. The submission of any unexecuted copy of this agreement
shall not constitute an offer to be legally bound by the provisions of the
document submitted, and no party shall be bound by this agreement until it is
executed by all of the parties designated in Article 1. This instrument has been
executed in counterparts and each counterpart constitutes an original document.
12. SEVERABILITY
If any provision of this agreement or the application of any provision to
any person or circumstance shall be invalid or unenforceable, neither the
balance of this agreement nor the application of the provision to other persons
or circumstances shall be affected. Each provision of this agreement shall be
valid and shall be enforced to the full extent permitted by law.
To signify their agreement to the foregoing, Xxxx has caused this agreement
to be executed and attested to by its duly authorized officers and Former
Employee has signed this agreement.
Witness: Xxxx Technologies, Inc.
By: /s/ XXXXXXXX XXXXXXX
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Xxxxxxxx Xxxxxxx,
Chief Financial Officer
/s/ XXXX XxXXXXX
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Xxxx XxXxxxx
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