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Exhibit 22
NON-COMPETE AGREEMENT
THIS AGREEMENT, made as of June __, 2000, by and between
Brunswick Technologies, Inc. a Maine corporation ("Corporation"), and
______________________, an individual residing in ____________, __________
County, Maine ("Covenantor").
WHEREAS, contemporaneously with the negotiation of the
mutually agreeable terms of this Agreement, VA Acquisition Corp., a Maine
corporation ("Buyer"), has entered into a merger agreement under which Buyer
would acquire control over the Corporation ("Merger Agreement") and
contemporaneously with the negotiation of the mutually agreeable terms of this
Agreement, Buyer has made enhancements in its earlier tender offer to acquire
all of the stock of the Corporation ("Tender Offer").
WHEREAS, the Buyer desires to protect and preserve the
business of, and the value of the stock in, the Corporation being purchased by
it.
WHEREAS, the Covenantor has been actively engaged in a primary
role in developing, expanding and managing various aspects of the business of
the Corporation.
WHEREAS, the Corporation and Covenantor are currently bound by
an existing Employment Agreement dated April 14, 2000 ("Employment Agreement").
WHEREAS, the Covenantor agrees that Buyer and Corporation are
entitled to the fullest protection at law and in equity against competition or
interference from Covenantor in the business of the Corporation in the
geographical area and for the period of time hereinafter provided.
NOW THEREFORE, in consideration of the respective promises and
agreements contained herein which have been negotiated at arm's length
separately, but incident to and within the context of the Merger Agreement and
the Tender Offer, Covenantor, intending to be legally bound hereby agrees as
follows:
1. NON-COMPETITION COVENANT. Provided that no material default
in any substantial obligation owed by the Corporation, or any affiliate of the
Corporation, to Covenantor has occurred and has not been cured:
a. Covenantor expressly covenants, warrants and
agrees that for the separate consideration set forth in
section 5 hereof he will not, during the time he remains an
employee of the Corporation and for a period of eighteen
months following the termination of his employment by the
Corporation for any reason and whether voluntary or
involuntary, directly or indirectly, individually or as an
officer, director, shareholder, employee, consultant, adviser,
partner or co-venturer of or on behalf of anyone else, in
association with any person, entity, firm or corporation,
engage in any services for, or acquire any financial or
beneficial interest in, the operation of any business
substantially similar to the business
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engaged in by the Corporation on the date of his termination,
including without limitation thereof, the designing,
manufacturing, distributing, marketing or selling of woven
composite materials involving fiber glass or carbon fibers and
engineered reinforcement fabrics used in the fabrication of
composite materials, within any geographic area in which the
Corporation is then operating its business; provided however,
that this paragraph shall not be construed or interpreted so
as to prohibit Covenantor from passively investing in a
publicly-held company which may be engaged in such business
activity so long as Covenantor's investment therein does not
exceed more than 4.9% of such publicly-held company's
outstanding debt or equity securities.
b. Covenantor further expressly covenants, warrants
and agrees that for the same period of time he shall not
directly or indirectly, nor in association with any person,
entity, firm or corporation (i) divert or attempt to divert
any business of, or any of the customers, suppliers or
licensors of the Corporation in any manner which would create
or constitute a breach under subsection (a) above, or (ii)
hire or attempt to hire for any position or employment
relating to any substantially similar business as engaged in
by the Corporation on his date of termination, or encourage
the resignation, of any employees of the Corporation for any
reason.
c. The parties to this Agreement understand and
agree, that if any portion of the covenants set forth in this
Section 1 above are held to be unreasonable, arbitrary,
against public policy or otherwise unenforceable, then that
portion of those covenants shall be considered divisible as to
their duration and geographic scope. The parties to this
Agreement agree that if any court of competent jurisdiction
determines that the specified duration or the specified
geographical area of application of any covenant is
unreasonable, arbitrary, against public policy or otherwise
unenforceable, then a lesser time period, geographical area or
both that is determined to be reasonable, non-arbitrary, not
against public policy and enforceable shall be substituted.
The parties to this agreement acknowledge that they are
familiar with the present business of the Corporation and
believe that the covenants as set forth in this Section 1 are
presently reasonable with respect to their subject matter,
duration and geographical application. The provisions of this
Section 1 shall survive the termination or expiration of this
Agreement.
2. CONFIDENTIAL AND PROPRIETARY INFORMATION. Covenantor
recognizes and acknowledges that the business, operations, methods, customer
lists, licensing arrangements, trade secrets and other confidential or
proprietary information of the Corporation are valuable, special and unique to
the business of the Corporation. Covenantor expressly covenants, warrants and
agrees that for the same periods of time set forth in subsection 1(a) he shall
keep confidential any trade secrets, confidential or proprietary information of
the Corporation which are now known, or which hereafter may become known, to
Covenantor and he shall not, directly or indirectly, disclose any such
information to any person, firm or corporation other than the Corporation and
its corporate affiliates. For purposes of this Section 2, "trade secrets,
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confidential or other proprietary information" shall mean information which is
unique to the business of the Corporation and which has a significant business
purpose and is not known or generally available from sources outside the
Corporation or from typical industry practice, but shall not include information
lawfully obtained from a source other than the Corporation or its corporate
affiliates or otherwise in the public domain. The covenants and other provisions
of this Section 2 shall survive the termination or expiration of this Agreement.
3. SPECIFIC REMEDIES. The parties acknowledge that a breach of
this Agreement, and particularly a breach by Covenantor under Section 1 and/or 2
hereof, may cause substantial injury to the Corporation which may be irreparable
and/or in amounts which are difficult or impossible to ascertain. Therefore,
Covenantor covenants and agrees that in the event that he breaches this
Agreement, and particularly Section 1 and/or 2 hereof, the Corporation shall
have, in addition to all other remedies, the right to injunctive and other
equitable relief. The provisions of this Section 3 shall survive the termination
or expiration of this Agreement.
4. FEES AND COST OF ENFORCEMENT. In the event that either
party hereto shall be required to engage the services of an attorney at law to
enforce such party's rights hereunder as a result of the breach of this
Agreement by the other, then the party prevailing in such enforcement
proceedings, as determined in the discretion of the Court, shall be entitled to
recover from the other all costs of such proceeding including reasonable
attorneys' fees and such prevailing party's expert witness fees whether or not
such experts may have testified in any such proceedings.
5. CONSIDERATION. In consideration for the covenants contained
in Sections 1 and 2 hereof, the Corporation has paid to Covenantor, in cash,
receipt of which is hereby acknowledged, the sum of $25,000, less withholding
taxes (if applicable).
6. GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of Maine.
7. NO THIRD PARTY RIGHTS. The parties hereto do not intend,
and nothing in this Agreement shall be construed, to give any person other than
the parties hereto and their respective successors and permitted assigns, any
legal or equitable benefit, right, remedy or claim, and no person other than the
parties hereto and their respective successors and permitted assigns shall have
standing to assert the same.
8. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding of the parties hereto with respect to any and all obligations
between the parties with respect to the matters referred to herein. Further,
with respect to the matters referred to herein except as expressly set forth
herein, the parties make no representation, warranty, covenant or agreement,
whether express or implied, of any kind whatsoever. In all other respects, the
provisions of the Employment Agreement, to the extent not in conjunction with
this Agreement, are ratified and confirmed. Notwithstanding the foregoing, this
Agreement shall not supersede or affect any Employee Confidentiality Agreement
(Proprietary Data & Trade Secrets) by the Covenantor in favor of the
Corporation, which shall continue in full force and effect.
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9. ASSIGNMENT. Covenantor specifically acknowledges and agrees
that Corporation may assign this Agreement to one or more of its successors in
interest, subsidiaries, parents, affiliates or any other person or organization
controlling, controlled by or under common control with it, or to any other
entity acquiring ownership of the Corporation or its business, and such
assignment shall be binding upon Covenantor and enforceable against him by such
assignee. Subject to the foregoing, the covenants and agreements contained
herein shall enure to the benefit of and be binding upon the heirs, personal
representatives, successors and permitted assigns of the parties hereto.
10. NOTICES. All notices, disclosures or other communications
which are required or permitted hereunder shall be deemed sufficiently given by
one party to another party only if in writing and if and when actually received
if hand delivered personally or by a nationally recognized overnight delivery
service, or international courier, which provides for a signed receipt, or by
telecopy or telex when transmitted to the number specified in this Section and
the appropriate answerback is received, or as of five business days after
deposit in the United States mail in a sealed envelope, registered or certified,
with postage prepaid, addressed as follows:
If to the Corporation:
Brunswick Technologies, Inc.
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Attention:
Telephone:
Telecopy:
With required copies to:
VA Acquisition Corporation
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If to Covenantor:
_________________________
_________________________
Telephone: ______________
Telecopy: _______________
or to such other address or telecopy/telex number as shall have been previously
designated by written notice in accordance with this Section.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement by affixing their hands (and in the case of a corporate party the hand
of its duly authorized officer) and seal the day and year first above written.
Brunswick Technologies, Inc.
By: ________________________________
Title: _____________________________
Witness: [Covenantor]
_________________________ _____________________________(SEAL)
Name
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