Exhibit 99.4
Exhibit 2.4(a)(iv)
Part 1
NONCOMPETITION AGREEMENT
This Noncompetition Agreement (this "Agreement") is made as of
September 29, 1999, by and between United Xxxxxxx Corporation, a
Colorado corporation ("Buyer"), and Xxxxx X. Xxxxxxxx, residing at
_________________ ("Seller").
RECITALS
Concurrently with the execution and delivery of this Agreement,
Buyer is purchasing all of the outstanding shares (the "Shares") of
common stock, no par value, of Pittsfield Mold & Tool, Inc. (the
"Company") pursuant to the terms and conditions of a Stock Purchase
Agreement made as of September 29, 1999, (the "Stock Purchase
Agreement", and certain real property and assets (the "Property")
pursuant to a Real Property Purchase Agreement made as of September
29, 1999 (the "Real Property Purchase Agreement").
Section 2.4(a)(iv) of the Stock Purchase Agreement requires that
noncompetition agreements be executed and delivered by each of
Seller and Xxxxxxx X. Xxxxxxxx ("BJK") as a condition to the
purchase of the Shares by Buyer.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
Capitalized terms not expressly defined in this Agreement shall have
the meanings ascribed to them in the Stock Purchase Agreement.
2. ACKNOWLEDGMENTS BY SELLER
Seller acknowledges that (a) Seller has occupied a position of trust
and confidence with the Acquired Companies prior to the date hereof
and has become familiar with the following, any and all of which
constitute confidential information of the Acquired Companies,
(collectively the "Confidential Information"): (i) any and all trade
secrets concerning the business and affairs of the Acquired
Companies, product specifications, data, know-how, formulae,
compositions, processes, designs, sketches, photographs, graphs,
drawings, samples, inventions and ideas, past, current and planned
research and development, current and planned manufacturing and
distribution methods and processes, customer lists, current and
anticipated customer requirements, price lists, market studies,
business plans, computer software and programs (including object
code and source code), computer software and database technologies,
systems, structures and architectures (and related processes,
formulae, compositions, improvements, devices, know-how, inventions,
discoveries, concepts, ideas, designs, methods and information, of
the Acquired Companies and any other information, however
documented, of the Acquired Companies that is a trade secret within
the meaning of applicable law; (ii) any and all information
concerning the business and affairs of the Acquired Companies (which
includes historical financial statements, financial projections and
budgets, historical and projected sales, capital spending budgets
and plans, the names and backgrounds of key personnel, personnel
training and techniques and materials, however documented; and
(iii) any and all notes, analysis, compilations, studies, summaries,
and other material prepared by or for the Acquired Companies
containing or based, in whole or in part, on any information
included in the foregoing, (b) the business of the Acquired
Companies is national in scope, (c) its products and services are
marketed throughout the United States; (d) the Acquired Companies
compete with other businesses that are or could be located in any
part of the United States; (e) Buyer has required that Seller make
the covenants set forth in Sections 3 and 4 of this Agreement as a
condition to the Buyer's purchase of the Shares owned by Seller and
BJK; (f) the provisions of Sections 3 and 4 of this Agreement are
reasonable and necessary to protect and preserve the Acquired
Companies' business, and (g) the Acquired Companies would be
irreparably damaged if Seller were to breach the covenants set forth
in Sections 3 and 4 of this Agreement.
3. CONFIDENTIAL INFORMATION
Seller acknowledges and agrees that all Confidential Information
known or obtained by Seller, whether before or after the date
hereof, is the property of the Acquired Companies. Therefore, Seller
agrees that Seller will not, at any time, disclose to any
unauthorized Persons or use for his own account or for the benefit
of any third party any Confidential Information, whether Seller has
such information in Seller's memory or embodied in writing or other
physical form, without Buyer's written consent, unless and to the
extent that the Confidential Information is or becomes generally
known to and available for use by the public other than as a result
of Seller's fault or the fault of any other Person bound by a duty
of confidentiality to Buyer or the Acquired Companies. Seller agrees
to deliver to Buyer at the time of execution of this Agreement, and
at any other time Buyer may request, all documents, memoranda,
notes, plans, records, reports, and other documentation, models,
components, devices, or computer software, whether embodied in a
disk or in other form (and all copies of all of the foregoing),
relating to the businesses, operations, or affairs of the Acquired
Companies and any other Confidential Information that Seller may
then possess or have under Seller's control.
4. NONCOMPETITION
As an inducement for Buyer to enter into the Stock Purchase
Agreement and Real Property Purchase Agreement and as additional
consideration for the consideration to be paid to Seller under the
Stock Purchase Agreement and Real Property Purchase Agreement Seller
agrees that:
(a) For a period of six years after the Closing:
(i) Seller will not, directly or indirectly, engage or invest in,
own, manage, operate, finance, control, or participate in the
ownership, management, operation, financing, or control of, be
employed by, associated with, or in any manner connected with, lend
Seller's name or any similar name to, lend Seller's credit to, or
render services or advice to, any business whose products or
activities compete in whole or in part with the products or
activities of the Company, anywhere within the United States;
provided, however, that Seller may purchase or otherwise acquire up
to (but not more than) one percent of any class of securities of any
enterprise (but without otherwise participating in the activities of
such enterprise) if such securities are listed on any national or
regional securities exchange or have been registered under Section
12(g) of the Securities Exchange Act of 1934. Seller agrees that
this covenant is reasonable with respect to its duration,
geographical area, and scope.
(ii) Seller will not, directly or indirectly, either for himself or
any other Person, (A) induce or attempt to induce any employee of an
Acquired Company to leave the employ of such Acquired Company,
(B) in any way interfere with the relationship between an Acquired
Company and any employee of such Acquired Company, (C) employ, or
otherwise engage as an employee, independent contractor, or
otherwise, any employee of an Acquired Company, or (D) induce or
attempt to induce any customer, supplier, licensee, or business
relation of an Acquired Company to cease doing business with such
Acquired Company, or in any way interfere with the relationship
between any customer, supplier, licensee, or business relation of an
Acquired Company.
(iii) Seller will not, directly or indirectly, either for himself or
any other Person, solicit the business of any Person known to Seller
to be a customer of an Acquired Company, whether or not Seller had
personal contact with such Person, with respect to products or
activities which compete in whole or in part with the products or
activities of the Company;
(b) In the event of a breach by Seller of any covenant set forth in
Subsection 4(a) of this Agreement, the term of such covenant will be
extended by the period of the duration of such breach;
(c) Seller will not, at any time during or after the six year
period, disparage Buyer or the Acquired Companies, or any of their
shareholders, directors, officers, employees, or agents; and
(d) Seller will, for a period of six years after the Closing, within
ten days after accepting any employment, advise Buyer of the
identity of any employer of Seller. Buyer or an Acquired Company
may serve notice upon each such employer that Seller is bound by
this Agreement and furnish each such employer with a copy of this
Agreement or relevant portions thereof.
5. REMEDIES
If Seller breaches the covenants set forth in Sections 3 or 4 of
this Agreement, Buyer and the Acquired Companies will be entitled to
the following remedies:
(a) Damages from Seller;
(b) To offset against any and all amounts owing any Seller under the
Stock Purchase Agreement, Real Property Purchase Agreement, or
Promissory Note any and all amounts which Buyer or the Acquired
Companies claim under Subsection 5(a) of this Agreement; and
(c) In addition to its right to damages and any other rights it may
have, to obtain injunctive or other equitable relief to restrain any
breach or threatened breach or otherwise to specifically enforce the
provisions of Sections 3 and 4 of this Agreement, it being agreed
that money damages alone would be inadequate to compensate the Buyer
and the Acquired Companies and would be an inadequate remedy for
such breach.
6. BUYER'S DEFAULT
Notwithstanding any other provisions of this Agreement, in the event
there is a "USC Default" as that term is defined in a certain Cross-
Default and Cross-Collateral Agreement of even date executed by
Buyer, Xxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx, then, and in such
a case, said USC Default shall constitute a default of Buyer's
obligations under this Agreement which shall release Seller of all
restrictive covenants described herein.
7. SUCCESSORS AND ASSIGNS
This Agreement will be binding upon Buyer, the Acquired Companies
and Seller and will inure to the benefit of Buyer and the Acquired
Companies and their affiliates, successors and assigns and Seller
and Seller's assigns, heirs and legal representatives.
8. WAIVER
The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by
any party in exercising any right, power, or privilege under this
Agreement will operate as a waiver of such right, power, or
privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of
such right, power, or privilege or the exercise of any other right,
power, or privilege. To the maximum extent permitted by applicable
law, (a) no claim or right arising out of this Agreement can be
discharged by one party, in whole or in part, by a waiver or
renunciation of the claim or right unless in writing signed by the
other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given;
and (c) no notice to or demand on one party will be deemed to be a
waiver of any obligation of such party or of the right of the party
giving such notice or demand to take further action without notice
or demand as provided in this Agreement.
9. GOVERNING LAW
This Agreement will be governed by the laws of the State of Ohio
without regard to conflicts of laws principles.
10. JURISDICTION; SERVICE OF PROCESS
Any action or proceeding seeking to enforce any provision of, or
based on any right arising out of, this Agreement may be brought
against any of the parties in the courts of the State of Ohio,
County of Xxxxxxxx, or, if it has or can acquire jurisdiction, in
the United States District Court for the Southern District of Ohio,
and each of the parties consents to the jurisdiction of such courts
(and of the appropriate appellate courts) in any such action or
proceeding and waives any objection to venue laid therein. Process
in any action or proceeding referred to in the preceding sentence
may be served on any party anywhere in the world.
11. SEVERABILITY
Whenever possible each provision and term of this Agreement will be
interpreted in a manner to be effective and valid but if any
provision or term of this Agreement is held to be prohibited by or
invalid, then such provision or term will be ineffective only to the
extent of such prohibition or invalidity, without invalidating or
affecting in any manner whatsoever the remainder of such provision
or term or the remaining provisions or terms of this Agreement. If
any of the covenants set forth in Section 4 of this Agreement are
held to be unreasonable, arbitrary, or against public policy, such
covenants will be considered divisible with respect to scope, time,
and geographic area, and in such lesser scope, time and geographic
area, will be effective, binding and enforceable against Seller.
12. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and
all of which, when taken together, will be deemed to constitute one
and the same agreement.
13. SECTION HEADINGS, CONSTRUCTION
The headings of Sections in this Agreement are provided for
convenience only and will not affect its construction or
interpretation. All references to "Section" or "Sections" refer to
the corresponding Section or Sections of this Agreement unless
otherwise specified. All words used in this Agreement will be
construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including"
does not limit the preceding words or terms.
14. NOTICES
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of
receipt), (b) sent by facsimile (with written confirmation of
receipt), provided that a copy is mailed by registered mail, return
receipt requested, or (c) when received by the addressee, if sent by
a nationally recognized overnight delivery service (receipt
requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile
numbers as a party may designate by notice to the other parties):
Seller:
Xxxxx X. Xxxxxxxx
_________________
_________________
with a copy to:
Xxxxxx & Xxxxxxxx, LLP
000 Xxxxx Xxxxxx, # 000
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Xx.
Facsimile No.: _______________
Buyer:
United Xxxxxxx Corporation
000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: President
Facsimile No.: 000-000-0000
with a copy to:
Xxxxxxxx & Shohl LLP
1900 Chemed Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Xx., Esq.
Facsimile No.: (000) 000-0000
14. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties
with respect to the subject matter of this Agreement and supersedes
all prior written and oral agreements and understandings between
Buyer and Seller with respect to the subject matter of this
Agreement. This Agreement may not be amended except by a written
agreement executed by the party to be charged with the amendment.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
Buyer:
UNITED XXXXXXX CORPORATION
By: /s/Xxxxxx X. Xxxxxxxxx, Xx.
Xxxxxx X. Xxxxxxxxx, Xx.
Its: President
Seller:
/s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
