This NONCOMPETITION, NONSOLICITATION AND CONFIDENTIALITY AGREEMENT
(this "Agreement"), dated as of June 30, 1997, by and among XxxxxXxx
Technologies, Inc., a Delaware corporation ("GTI"), XxxxxXxx Acquisition Corp.,
a Delaware corporation ("GAC" and, together with GTI, the "Buyers"), and
Xxxxxxxx Xxxxxx Industries, Inc., a Delaware corporation ("BFI"),
Xxxxxxxx-Xxxxxx Industries of Minnesota, Inc., a Minnesota corporation ("BFIM")
and Xxxxxxxx-Xxxxxx Industries of Georgia, Inc., a Georgia corporation ("BFIG")
(BFIG together with BFI and BFIM, the "Sellers").
RECITALS
A. Buyers and Sellers are parties to a Purchase and Sale Agreement,
dated as of June 30, 1997 (the "Purchase Agreement"), pursuant to which GAC will
acquire all the issued and outstanding capital stock of BFI Tire Recyclers of
Minnesota, Inc., a Minnesota corporation ("BTM"), and BFI Tire Recyclers of
Georgia, Inc., a Georgia corporation ("BTG").
B. Buyers are unwilling to enter into and consummate the transactions
contemplated by the Purchase Agreement without assurances of a nature as
provided herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, and in consideration of Buyers'
proceeding with the consummation of the transactions contemplated by the
Purchase Agreement, the parties hereto do hereby covenant and agree as follows:
1. Noncompetition Agreement.
Each Seller agrees and warrants that, for a period of three (3) years
from the date hereof, it will not, within the states and provinces listed on
Exhibit A attached hereto, directly or indirectly own, sponsor, operate, join,
control or participate in, or be connected as a partner, officer, director,
employee, consultant, adviser, sponsor or otherwise with, or permit its or his
name to be used in connection with, any business engaged in the collecting,
processing, treating, recovering, transporting, shredding, marketing, brokering,
reselling, disposal or recycling of tires or the sale and marketing of products
obtained from such processing (except such collecting and transporting of tires
as may be incidental to the collecting and transporting of nonhazardous solid
waste generally); provided, however, that nothing herein shall prevent the
Sellers and their affiliates from engaging in such businesses in the State of
Illinois as are required to fulfill their contractual obligations under those
contracts and other agreements listed on Exhibit B attached hereto.
2. Nonsolicitation Agreement.
Each Seller agrees and covenants that it will not, unless acting with
the Buyers' express written consent, directly or indirectly, for a period of
three (3) years from the date hereof, actively solicit or endeavor to entice
away any dealer, distributor, sales representative, officer or employee of
either Buyer, including without limitation those former employees of BTM or BTG
hired by the Buyer following the Closing under the Purchase Agreement.
If at any time any of the foregoing agreements or covenants shall be
deemed invalid or unenforceable by the laws of the jurisdiction wherein it is to
be enforced, by reason of being vague or unreasonable as to duration, or
geographic scope, or scope of activities restricted, or for any other reason,
such agreements or covenants shall be considered divisible as to such portion
and shall become and be immediately amended and reformed to include only such
agreements or covenants as are enforceable by the court or other body having
jurisdiction of this Agreement; and the parties agree that such agreements or
covenants, as so amended and reformed, shall be valid and binding as though the
invalid or unenforceable portion had not been included herein.
3. Confidentiality Agreement.
Each Seller agrees and warrants that, for a period of three (3) years
from the date hereof, it will not, unless acting with the Buyers' express prior
written consent, directly or indirectly, at any time divulge, furnish, or make
accessible to anyone, or appropriate to its own use, or to the use of any third
party, any knowledge or information with respect to secret, confidential or
proprietary methods, processes, formulae, designs, equipment, plans, projects,
material, information, business, operations, techniques or customer lists of BTM
or BTG; provided, however, that the foregoing restriction shall not apply to
information that (i) is in the public domain or becomes part of the public
domain through no fault of any Seller, (ii) is used by Sellers in businesses
other than businesses in which BTM and BTG are engaged, or (iii) such Seller is
required to disclose by order of a court of competent jurisdiction in any legal
proceeding, provided that such Seller shall notify Buyer before so disclosing
such information.
4. Remedies.
Each Seller acknowledges that Buyers do not have an adequate remedy at
law in the event that any Seller breaches any of the foregoing provision of this
Agreement and agrees that Buyers, in addition to any other available rights and
remedies, whether existing under this Agreement or at law or in equity, shall be
entitled to injunctive relief and specific performance to the extent permitted
by law.
5. Waivers and Further Agreements.
Any waiver of any terms and conditions of this Agreement shall not
operate as a waiver of any other breach of such terms or conditions or any other
term or condition, nor shall any failure to enforce any provision hereof operate
as a waiver of such provision or of any other provision hereof; provided,
however, that no such waiver, unless it, by its own terms, explicitly provides
to the contrary, shall be construed to effect a continuing waiver of the
provision being waived, and no such waiver in any instance shall constitute a
waiver in any other instance or for any other purpose or impair the rights of
the party against whom such waiver is claimed in all other instances or for all
other purposes to require full compliance with such provision. Each of the
parties hereto agrees to execute all such further instruments and documents and
to take
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all such further action as the other parties may reasonably require in order to
effectuate the terms and purpose of this Agreement.
6. Amendments; Entire Agreement.
This Agreement may not be amended, nor shall any waiver, change,
modification, consent or discharge be effected, except by an instrument in
writing executed by or on behalf of the party or parties against whom
enforcement of any amendment, waiver, change, modification, consent or discharge
is sought. The parties hereto agree that this Agreement and all other agreements
of even date or approximate even date herewith constitute the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings among them as to such subject matter; and
there are no restrictions, agreements, arrangements, oral or written, between
the parties relating to the subject matter hereof that are not fully expressed
or referred to herein.
7. Severability.
If any provision of this Agreement shall be determined by a court of
competent jurisdiction to be inoperative or unenforceable as applied to any
particular case in any jurisdiction or jurisdictions, or in all jurisdictions or
in all cases, because of the conflict of any provision with any constitution or
state or rule of public policy or for any other reason, such circumstance shall
not have the effect of rendering the provision or provisions in question,
invalid, inoperative or unenforceable to the extent that such other provisions
are not themselves actually in conflict with such constitution, statute or rule
of public policy, but this Agreement shall be reformed and construed in any such
jurisdiction or case as if such invalid, inoperative or unenforceable provision
had never been contained herein and such provision reformed so that it would be
valid, operative and unenforceable to the maximum extent permitted in such
jurisdiction or in such case.
8. Notices.
Any notices or other communications required or permitted hereunder
shall be sufficiently given if delivered personally or sent by telex, federal
express, registered or certified mail, postage prepaid, addressed as follows or
to such other address of which the parties may have given notice:
To either Buyer, at:
XxxxxXxx Technologies, Inc.
0 Xxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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With a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
To any Seller, at:
Xxxxxxxx Xxxxxx Industries, Inc.
000 Xxxxx Xxxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Secretary
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
Xxxxxxxx Xxxxxx Industries, Inc.
000 Xxxxx Xxxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxx, Xx., Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Unless otherwise specified herein, such notices or other communications shall be
deemed received (i) on the date delivered, if delivered personally, or (ii)
three business days after being sent, if sent by registered or certified mail,
postage prepaid and properly addressed as set forth above.
9. Successors and Assigns.
This Agreement shall not be assignable by any Seller. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, and is not intended and shall not be
construed to create in any rights in or to be enforceable by any third person.
10. Counterparts.
This Agreement may be executed in two or more counterparts (none of
which need be executed by all the parties), each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument, and in pleading or proving any provision of this Agreement it shall
not be necessary to produce more than one such counterpart.
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11. Headings.
The headings contained in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
12. Governing Law.
This Agreement shall be governed by and construed and enforced in
accordance with the law (other than the law governing conflict of law questions)
of the State of Delaware.
13. Massachusetts Courts.
Any action to enforce, arising out of, or relating in any way to, any
of the provision of this Agreement may be brought and proscribed in such court
or courts located in The Commonwealth of Massachusetts as is provided by law;
and the parties consent to the jurisdiction of said court or courts located in
The Commonwealth of Massachusetts, and to service or process by first-class,
registered or certified mail, or by any other manner provided by law.
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IN WITNESS WHEREOF, the parties have executed or caused to be executed
this Agreement as a sealed instrument as of the date first above written.
XXXXXXXX TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
XXXXXXXX ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
Title: President
XXXXXXXX XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Vice President
XXXXXXXX-XXXXXX INDUSTRIES
OF MINNESOTA, INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Vice President
XXXXXXXX-XXXXXX INDUSTRIES
OF GEORGIA, INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Vice President
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Exhibit A
Alabama
Arkansas Tennessee
Florida Texas
Georgia Virginia
Illinois Wisconsin
Indiana Manitoba
Iowa Saskatchewan
Kentucky
Louisiana
Maryland
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
North Carolina
North Dakota
Ohio
South Carolina
South Dakota
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Exhibit B
Fuel Stockpile Management Agreement dated as of April 15, 1995 by and between
CGE Ford Heights, L.L.C. ("CGE") and Xxxxxxxx-Xxxxxx Industries of Illinois,
Inc. ("BFII").
First Amended and Restated Tire Supply Agreement dated March 22, 1994 by and
between CGE and BFII
Tire Recycling Waste Disposal Agreement Dated September 13, 1995, by and between
CGE Xxxxxx, LLC and BFII
Fuel Stockpile Management Agreement Dated September 13, 1995, by and between CGE
Xxxxxx, LLC and BFII
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