Exhibit 2.3
NONCOMPETITION AGREEMENT
This Noncompetition Agreement (the "Agreement") is made and entered into
this 28th day of February, 1997, by and between ____________________________
("Covenantor") and NEWPARK RESOURCES, INC., a Delaware corporation ("Newpark"),
ancillary to and as required by Merger Agreement and Plan of Reorganization
("the Merger Agreement") dated February 18, 1997, by and among Newpark, SBM
ACQUISITION CORPORATION ("Newco"), a Delaware corporation which is a wholly-
owned subsidiary of Newpark, XXXXXX XXXXX XXXXXX DRILLING FLUIDS MANAGEMENT,
INC., a Texas corporation (the "Company"), and the "Stockholder Parties" so
identified in the Merger Agreement (including Covenantor), pursuant to which
Newco is merging into the Company, and the Company is surviving as a wholly-
owned subsidiary of Newpark. Unless otherwise provided herein all terms used in
this Agreement that are defined in the Merger Agreement shall have the same
meanings herein as in the Merger Agreement.
In consideration of the foregoing, and in order to satisfy a condition
precedent to the obligations of Newpark and Newco under the Merger Agreement,
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: selling, providing,
installing, recycling, renting, marketing, or dealing in or with or otherwise
soliciting orders for any of the Products and Services or any products,
services, materials, supplies or support activities that compete with or may be
used to replace any Products and Services.
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.
Products and Services - All products, services, materials, supplies and
support activities which, as of the date hereof or within twelve months prior to
the date hereof, are or have been provided, sold, installed, recycled, rented,
marketed or dealt in or with by the Company, and all competitive products,
services, materials, supplies and support activities.
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, 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 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 to
terminate his or her employment or engagement or to perform any services for a
Competitor; 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. Confidentiality. Covenantor shall keep secret and retain in
confidence, and shall not use for the benefit of Covenantor or others, any
confidential information concerning the business of the Company or its
affiliates ("Confidential Information") including, without limitation, "know-
how," trade secrets, customer lists, details of client or consultant contracts,
pricing policies, operational methods, marketing plans or strategies, business
acquisition plans, technical processes and designs and design projects of the
Company and its affiliates relating to the business of the Company learned by
Covenantor as a result of prior and current business relationships with the
Company or its predecessors. Confidential Information shall not include
information which (a) is or becomes generally available to the public other than
as a result of a disclosure by Covenantor, (b) was available to Covenantor on a
non-confidential basis prior to its disclosure to the Covenantor by the Company
or (c) becomes available to Covenantor on a non-confidential basis from a source
other than the Company, provided that such source is not bound by a
confidentiality agreement with the Company known to Covenantor.
4. Term. The term of this Agreement commences on the date hereof and
shall continue for sixty months thereafter. Covenantor hereby acknowledges the
receipt and sufficiency of full consideration for this Agreement.
5. 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.
6. Severability. Covenantor acknowledges that he has carefully read and
considered the provisions of Paragraphs 1 through 4 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,
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any of the provisions of Paragraphs 1 through 4 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
4 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 deemed to become and thereafter
shall be the maximum time periods and areas which such court deems reasonable
and enforceable.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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 11 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
12. 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__________________________
Xxxxx X. Xxxx, President
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