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EXHIBIT 10.35
NONCOMPETITION AGREEMENT
NONCOMPETITION AGREEMENT, dated as of the 30th day of June,
1996 (the "Agreement"), by and between Tractor Supply Company, a Delaware
corporation (the "Company"), and Xxxxxx X. Xxxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive is the former Vice President -
Marketing of the Company and has been actively involved in, and has been
instrumental in the success of, the business of the Company;
WHEREAS, the Executive resigned from his position effective
June 30, 1996, but continues to serve on the Company's Board of Directors; and
WHEREAS, the Company desires that the Executive not compete
with the Company, for a limited period of time, upon the terms and conditions
hereinafter provided.
NOW, THEREFORE, for and in consideration of the premises,
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
.A.1. Noncompetition. During the period commencing on June 30,
1996 and ending on June 30, 2001 (the "Noncompetition Term"), the Executive
shall not, directly or indirectly, be associated with any entity whose primary
business is that of, or personally engage, whether as a director, officer,
employee, agent, consultant, partner, owner, independent contractor or
otherwise, in the business of, selling to the public on a retail basis goods of
the type then sold by the Company in any geographical area in which the Company
is then engaged in such business; provided, however, that notwithstanding the
foregoing, the Executive may own stock representing an aggregate of up to two
and one-half percent (2 1/2%) of the total equity of any corporation engaged in
such business in such geographical area whose securities are listed on a
national securities exchange or are traded in an over-the-counter market.
.A.2. Health Benefits.
(a) Coverage. During the Noncompetition Term, the Company
shall, at its option, provide, or reimburse the Executive or the Executive's
Eligible Dependents (as hereinafter defined) for the cost of, health insurance
coverage for the Executive and the Executive's Eligible Dependents comparable to
that provided by the Company to its senior executives from time to time ("Health
Benefits"). Notwithstanding the foregoing, in the event that any person eligible
for Health Benefits pursuant to this Section 2(a) shall also be entitled to
Medicare or other government or private third party health insurance coverage
("Other Coverage"), such person shall promptly notify the Company in writing of
the terms of such Other Coverage. The Company's obligations with respect to such
person under this
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Section 2(a) may, at the Company's option, be limited to (i) reimbursing such
person for any premiums payable by such person with respect to such Other
Coverage, and (ii) providing, or reimbursing such person for the cost of, any
supplementary health insurance coverage necessary to provide such person with
aggregate health insurance coverage comparable to the Health Benefits otherwise
required by this Section 2(a).
(b) Eligible Dependents. For purposes of this Agreement,
an Eligible Dependent shall mean the Executive's spouse and any other dependent
of the Executive who would be eligible for coverage under any health insurance
plan maintained by the Company from time to time for its senior executives if
the Executive were then employed by the Company in a senior executive position.
.A.3. Other Covenants.
(a) Confidentiality.
(i) The Executive acknowledges and understands that
the Confidential Information (as hereinafter defined) of the Company is
valuable, special and unique to the business of the Company, that such
business depends on such Confidential Information and that the Company
desires to protect such Confidential Information by keeping it
confidential for the use and benefit of the Company. Based on the
foregoing, the Executive shall undertake the following obligations with
respect to such Confidential Information during the Noncompetition
Term: (A) the Executive shall keep any and all Confidential Information
in trust for the use and benefit of the Company, (B) except as required
by applicable law or as authorized in writing by the Board, the
Executive shall not disclose, directly or indirectly, any Confidential
Information of the Company, (C) the Executive shall use his best
efforts to ensure that all Confidential Information is kept
confidential for the use and benefit of the Company, and (D) upon
termination of this Agreement or at any other time that the Company may
in writing so request, the Executive shall promptly deliver to the
Company all materials constituting Confidential Information (including
all copies thereof) that are in his possession or under his control.
(ii) For purposes of this Agreement, "Confidential
Information" shall mean any and all information developed by or for the
Company or any of its affiliates of which the Executive gains knowledge
during the Noncompetition Term (or gained knowledge prior to the
Noncompetition Term by reason of his employment with the Company) that
is (x) not generally known in any industry in which the Company or any
of its affiliates is or may become engaged, or (y) not publicly
available. Confidential Information includes, but is not limited to,
any information developed by or for the Company or any of its
affiliates concerning plans, marketing and sales methods, materials,
processes, business forms, procedures, devices, management information
services, computer programs and software, plans for development of
products or services or for expansion into new areas or markets,
internal operations and any trade secrets and proprietary information
of any type owned by the Company or any of its
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affiliates, together with all written, graphic and other materials
relating to all or any part thereof.
(b) Non-Solicitation of Employees and Customers. During
the Noncompetition Term, the Executive shall not, and shall use his best
efforts to cause each business or entity with which he shall become associated
not to, (i) solicit for employment or employ any person who is then employed or
during the previous six months was employed in an executive or management
position by the Company, or (ii) solicit then-existing customers of the Company.
.A.4. Remedies.
(a) Injunctive Relief. The Executive acknowledges that
the covenants and obligations of the Executive contained in Sections 1 and 3
hereof relate to special, unique and extraordinary matters and are reasonable
and necessary to protect the legitimate interests of the Company, that a breach
of any of the terms of such covenants or obligations will cause the Company
irreparable injury for which adequate remedies at law are not available, and
that the Company shall be entitled to an injunction, restraining order or other
equitable relief from any court of competent jurisdiction restraining the
Executive from any such breach.
(b) Remedies Cumulative. The rights and remedies of the
Company under this Section 4 are cumulative and are in addition to any other
rights and remedies the Company may have at law or in equity.
.A.5. Notices.
(a) All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
(including telefax, telegraphic, telex or cable communication) and mailed,
telefaxed, telegraphed, telexed, cabled or delivered:
(i) If to the Executive, to:
19 Northumberland
Xxxxxxxxx, Xxxxxxxxx 00000
(ii) If to the Company, to:
Tractor Supply Company
000 Xxxx Xxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
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(b) All notices and other communications required or
permitted under this Agreement which are addressed as provided in this Section 5
(i) if delivered personally against proper receipt or by confirmed telefax or
telex, shall be effective upon delivery, and (ii) if delivered (A) by certified
or registered mail with postage prepaid, (B) by Federal Express or similar
courier service with courier fees paid by the sender, or (C) by telegraph or
cable, shall be effective two business days following the date when mailed,
couriered, telegraphed or cabled, as the case may be. Either party hereto may
from time to time change its address for the purpose of notices to that party by
a similar notice specifying a new address, but no such change shall be deemed to
have been given until it is actually received by the party sought to be charged
with its contents.
.A.6. Assignment.
(a) The Company. This Agreement and all of the terms and
provisions hereof shall be binding upon and inure to the benefit of the Company
and its successors and permitted assigns. The Company may not assign this
Agreement or any of its rights, interests or obligations hereunder without the
prior written consent of the Executive, except that it may make such an
assignment to any of its affiliates or to any successor to its business without
such consent.
(b) The Executive. This Agreement shall be binding upon
and inure to the benefit of the Executive, his Eligible Dependents, and their
respective heirs, beneficiaries, executors, administrators and legal
representatives; provided, however, that neither this Agreement nor any of the
rights, interests or obligations hereunder may be assigned by any such person
without the prior written consent of the Company.
.A.7. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Tennessee,
without giving effect to the conflict of laws principles thereof.
.A.8. Miscellaneous.
(a) Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which when taken together shall constitute one and the same instrument.
(b) Headings. The headings contained in this Agreement
are for convenience of reference only and shall not constitute a part hereof or
define, limit or otherwise affect the meaning or interpretation of any of the
terms or provisions hereof.
(c) Entire Agreement. This Agreement embodies the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements, commitments,
arrangements or understandings, whether oral or written, between the parties
with respect thereto. There are no agreements,
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covenants, undertakings, representations or warranties with respect to the
subject matter of this Agreement other than those expressly set forth or
referred to herein.
(d) Severability. Each term and provision of this
Agreement constitutes a separate and distinct undertaking, covenant, term and
provision hereof. In the event that any term or provision of this Agreement
shall be determined to be unenforceable, invalid or illegal in any respect, such
unenforceability, invalidity or illegality shall not affect any other term or
provision of this Agreement, but this Agreement shall be construed as if such
unenforceable, invalid or illegal term or provision had never been contained
herein. Moreover, if any term or provision of this Agreement shall for any
reason be held to be excessively broad as to time, duration, scope, activity or
subject, it shall be construed, by limiting and reducing it, so as to be
enforceable to the extent permitted under applicable law as it shall then exist.
(e) Amendment; Waiver. Neither this Agreement, nor any
of the terms or provisions hereof, may be amended, modified, supplemented or
waived, except by an instrument in writing signed by the parties hereto (or, in
the case of a waiver, by the party granting such waiver). 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. No failure of either party hereto to insist upon
strict compliance by the other party with any obligation, covenant, agreement or
condition contained in this Agreement shall operate as a waiver of, or estoppel
with respect to, any subsequent or other failure.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
TRACTOR SUPPLY COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Vice President - Controller
and Secretary
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
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