NON-COMPETITION AGREEMENT
NON-COMPETITION AGREEMENT, dated as of April 1, 1997, by and
between INTABEX S.A. (ZUG), a company organized under the laws of
Switzerland ("Intabex") (including its subsidiaries "Intabex"), and
FOLIUM INC., a company organized under the laws of the British Virgin
Islands (including its subsidiaries "Folium").
RECITALS
A. Pursuant to a Stock Purchase Agreement, dated as of
February 14, 1997 (the "Stock Purchase Agreement"), by and among DIMON
Incorporated, a Virginia corporation (including its subsidiaries
"DIMON"), Intabex, and the shareholders of Intabex, DIMON has purchased
all of the issued and outstanding shares of capital stock of Intabex.
B. To induce DIMON to enter into the Stock Purchase Agreement,
Folium has agreed not to compete, and has agreed to cause each other
member of Folium Group (hereinafter defined) not to compete, with Intabex
or any of its affiliates (the "Intabex Group") upon the terms and
conditions set forth herein; and
C. In consideration for such agreement not to compete, Intabex
has agreed to make certain payments to Folium as set forth herein.
NOW, THEREFORE, in consideration of the recitals and the mutual
covenants, conditions and agreements contained herein and for other good
and valuable consideration, the receipt and sufficiency of which hereby
are acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
1. Definitions. All capitalized terms used and not otherwise
defined herein shall have the meanings given such terms in the Stock
Purchase Agreement.
2. Term. This Agreement shall be effective beginning on the
date hereof and shall continue for a period of five (5) years; provided,
however, that in the event of any breach hereunder by Folium or any other
member of Folium Group, the term of this Agreement shall be extended for
a period equal to the period of such breach.
3. Noncompetition Agreement. Folium covenants and agrees that
during the term hereof Folium shall not, and that Folium shall cause each
affiliate designated by Intabex and agreed to by Folium (Folium and each
such affiliate being referred to herein as "Folium Group") not to,
directly or indirectly, engage in or accept employment with (as a
consultant or otherwise), own any interest in, or otherwise give
assistance to, whether or not for compensation, any person or entity
engaged in the ownership or management of any business involving the
purchase, sale or processing of leaf tobacco anywhere in the world
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outside of the United States of America and Zimbabwe and their respective
territories and possessions (which business the parties agree will not
include any business involving growing tobacco, warehousing tobacco or
the manufacture or sale of cigarettes); provided that this Section 3
shall not prevent any member of Folium Group from (i) owning any capital
stock or indebtedness of any member of Intabex Group, (ii) acting as a
consultant to or director of Intabex or any other member of Intabex
Group, (iii) owning, operating or selling the tobacco assets set forth on
Schedule 3 hereto in accordance with such schedule, or (iv) owning less
than 5% of the capital stock of any corporation that is publicly traded
on a generally recognized national securities exchange or inter-dealer
quotation system. In the event that any provision of this Section 3 is
determined to be invalid or overbroad by any court or other entity of
competent jurisdiction, the provisions of this Section 3 shall be deemed
to have been amended, and the parties hereto agree to execute all
documents necessary to evidence such amendment, so as to eliminate or
modify any such invalid or overbroad provision so as to carry out the
intent of this Section 3 as far as possible and to render the terms of
this Section 3 enforceable in all respects as so modified. Folium
acknowledges that a violation of this Section 3 by it or any other member
of Folium Group may cause irreparable harm to Intabex Group.
Accordingly, Folium hereby grants Intabex the right to seek and be
granted injunctive relief for any such violation, in addition to any
other legal remedies that may be available to Intabex.
4. Confidential Information. Except as specifically authorized
by Intabex in writing, from the date hereof and continuing forever,
Folium agrees not to, and to cause each other member of Folium Group not
to, (i) disclose any Confidential Information (as defined below) to any
individual or entity, or otherwise knowingly permit any person or entity
to obtain or disclose any Confidential Information, or (ii) use any
Confidential Information, whether individually or on behalf of another
individual or entity, except pursuant to the performance by any member of
Folium Group of its duties under any consulting agreement with a member
of Intabex Group or as a director of any member of Intabex Group. For
purposes hereof, "Confidential Information" means any and all information
relating to any part of the business of Intabex Group (including, without
limitation, Intabex), provided to Folium or to which Folium has had
access (whether before or after the date hereof), which information is
not a matter of public record or generally known to the tobacco industry,
including, without limitation: (i) financial and operating information
regarding Intabex Group; (ii) personnel data, including compensation
arrangements, relating to any employee of Intabex Group; (iii) internal
plans, practices and procedures of Intabex Group; (iv) the names,
addresses and requirements of any customers of Intabex Group; (v) the
terms and conditions of any supply agreements, customer or vendor
commitments and other agreements, documents and instruments to which any
member of Intabex Group is party; and (vi) any other information
expressly known by Folium to be confidential. Folium acknowledges that
it has had access to and has become familiar with or obtained
Confidential information in the course of its dealings with Intabex
Group, and that a violation of this Section 4 by it would cause
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irreparable harm to Intabex Group. Accordingly, Folium hereby grants
Intabex Group the right to seek and be granted injunctive relief for any
such violation, in addition to any other legal remedies that may be
available to Intabex Group.
In the event that Folium or any other member of Folium Group is
requested or required (by oral question or request for information or
documents in any legal proceeding, interrogatory, subpoena, civil
investigative demand or similar process) to disclose any Confidential
Information, Folium will, and will cause such other member of Folium
Group to, notify Intabex promptly of the request or requirement and
cooperate with Intabex in seeking an appropriate protective order or
waive compliance with the provisions of this Section 4; provided, if
prior to the issuance of a protective order or the receipt of a waiver
hereunder, Folium or such other member of Folium Group is, on the advice
of counsel, compelled to disclose any Confidential Information to any
tribunal or else stand liable for contempt, Folium or such other member
of Folium Group shall be permitted to make such disclosure without any
responsibility or liability to Intabex Group but shall use its best
efforts to obtain, at the request of and at the expense of Intabex Group,
an Order or other assurance that confidential treatment will be accorded
to such portion of the Confidential Information required to be disclosed
as Intabex Group shall designate.
5. Transition. Folium agrees that it will use, and that it
will cause each other member of Folium Group to use, its commercially
reasonable efforts to assist Intabex Group in preserving and retaining
all business relationships between Intabex Group and its customers,
suppliers and employees. Folium will not take, and will cause each other
member of Intabex Group not to take, any action that is designed or
intended to have the effect of discouraging any lessor, licensor,
customer, supplier or other business associate of Intabex Group from
maintaining the same business relationships with Intabex Group after the
Closing as it maintained with Intabex Group prior to the Closing.
6. Payment. In consideration of the agreements of Folium
contained in this Agreement, Intabex hereby delivers to Folium the sum of
U.S. $17,000,000 by wire transfer of immediately available funds and
Folium hereby acknowledges receipt of such payment.
7. Miscellaneous.
(a) Governing Law; Jurisdiction and Venue; Waiver of Jury Trial.
(i) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York without regard to the conflicts
of law rules or principles thereof.
(ii) Each party hereto consents to submit to the exclusive
jurisdiction of the United States District Court for the Southern
District of New York or in the event (but only in the event) such court
does not have subject matter jurisdiction, of the State Courts of New
York sitting in New York City, for any actions, suits or proceedings
arising out of or relating to this Agreement and the transactions
contemplated hereby. Each party hereto agrees not to commence any
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action, suit or proceeding relating thereto except in such courts. Each
party hereto unconditionally waives any objection to the laying of venue
of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby, in such courts, and waives and agrees
not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient
forum.
(iii) EACH PARTY HERETO IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON
ANY CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY OR IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
(b) Remedies. Folium acknowledges that a violation of this
Agreement may cause irreparable harm to the business of Intabex and
Intabex Group. Accordingly, Folium hereby grants Intabex the right to
seek and be granted injunctive relief for any such violation, in addition
to any other legal remedies that may be available to Intabex. Folium
shall not in any event be liable or responsible to Intabex Group for any
indirect or consequential damages to Intabex Group (including lost
profits).
(c) Agent for Service of Process. Folium hereby irrevocably
designates, appoints, and empowers CT Corporation System, at 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other address where such
representative office may be located in New York City, and its successors
and assigns, as its true and lawful agent for service of process to
receive and accept on its behalf service of process in any actions, suits
or proceedings arising out of or relating to this Agreement and the
transactions contemplated hereby. Folium agrees that the failure of such
process agent to give any notice of any service of process to it shall
not impair or affect the validity of service upon such agent or of any
judgment based thereon.
(d) Severability. If any provision, clause or part of this
Agreement, or the application thereof under certain circumstances is held
invalid or unenforceable for any reason, the remainder of this Agreement,
or the application of such provision, clause or part under other
circumstances shall not be affected thereby.
(e) Entire Agreement; Amendment. This Agreement contains all of
the understandings and representations between the parties hereto
pertaining to the subject matter hereof and supersedes all undertakings
and agreements, whether oral or in writing, if any, previously entered
into by them with respect thereto. This Agreement may not be amended
otherwise than by a writing signed by the parties hereto.
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(f) Notices. All communications, notices and disclosures required
or permitted by this Agreement shall be in writing and shall be deemed to
have been given when delivered personally or by messenger or by overnight
delivery service, or when received via telecopy, telex or other
electronic transmission, in all cases addressed to the person for whom it
is intended at the address set forth on the signature page hereof or to
such other address as a party shall have designated by notice in writing
to the other party in the manner provided by this Section.
(g) Counterparts; Headings. This Agreement may be executed in two
counterparts, each of which shall be deemed to be an original, but both
of which together shall constitute one and the same instrument. The
Article and Section headings in this Agreement are inserted for
convenience of reference only and shall not constitute a part hereof.
(h) Successors and Assigns. Folium acknowledges that Intabex may
assign this Agreement, in whole or in part, to any of its subsidiaries or
affiliates, without its consent, and agrees that this Agreement shall be
binding upon, inure to the benefit of and be enforceable by Intabex and
its successors and assigns. At the request of Intabex, Folium will cause
each other member of Folium Group to execute and deliver to Intabex a
written agreement pursuant to which such member of Folium Group agrees
that it is bound by the terms of this Agreement as if such member were
expressly named as a party hereto.
(i) Confidentiality. Except for information that is otherwise
publicly available, each party agrees to keep confidential and not to
disclose, and to cause each of its affiliates not to disclose, this
Agreement or any terms hereof, except as required by law.
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IN WITNESS WHEREOF, the parties hereto have executed, or caused
this Agreement to be executed by their duly authorized officers, all as
of the day and year first above written.
INTABEX S.A. (ZUG)
By: /s/ X. X. Xxxxxx
Its: Director
Address: Xxxxxxxxx Xxxxxxx 00/00
XX-0000 Xxxxx
Xxxxxxxxxxx
FOLIUM, INC.
By: /s/ P. M. Xxxxxxxxx
Its: Authorized Agent
Address: Maitland & Co.
00 xxx Xx Xxxxxx
Xxxxx, Xxxxxx 00000
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