NON-COMPETITION AND NON-DISCLOSURE AGREEMENT (Donald Brinckman)
EXHIBIT 10.16
(▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇)
This NON-COMPETITION AND NON-DISCLOSURE AGREEMENT is entered into this 22nd day of March,
2002, by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, a resident of Woodstock, Illinois (“▇▇▇▇▇▇▇▇▇”), and
Heritage-Crystal Clean, LLC, an Indiana limited liability company (“Crystal Clean”);
WITNESSETH:
WHEREAS, ▇▇▇▇▇▇▇▇▇ is a Unit holder and Member of Crystal Clean and as a result thereof, has
access to and knowledge of all of Crystal Clean’s business information and confidential data; and
WHEREAS, ▇▇▇▇▇▇▇▇▇’▇ right to subscribe for and receive ownership of Units in Crystal Clean is
expressly conditioned upon ▇▇▇▇▇▇▇▇▇’▇ entering into this Non-Competition and Non-Disclosure
Agreement;
NOW, THEREFORE, in pursuant of the above and in consideration of the terms and conditions
contained herein and for other good and valuable considerations, the receipt and legal sufficiency
of which are hereby acknowledged, the parties agree as follows:
(1) Consideration. ▇▇▇▇▇▇▇▇▇ acknowledges that the consideration received by
▇▇▇▇▇▇▇▇▇ under the Agreement with Crystal Clean dated March ___, 2002 (“HCC Agreement”) and his
Subscription Agreement is good and sufficient consideration for ▇▇▇▇▇▇▇▇▇’▇ covenants, agreements
and forbearances contained in this Agreement and that Crystal Clean would not have allowed
▇▇▇▇▇▇▇▇▇ to subscribe for Units but for ▇▇▇▇▇▇▇▇▇’▇ entering into this Agreement.
(2) Non-Disclosure. ▇▇▇▇▇▇▇▇▇ will not, at any time following this date, disclose to
any person, firm or corporation, any confidential information concerning Crystal Clean or its
assets or business, except as may be required by governmental law or regulation or in legal
proceedings to which ▇▇▇▇▇▇▇▇▇ is subpoenaed to give testimony, in which event ▇▇▇▇▇▇▇▇▇ shall
notify Crystal Clean immediately upon learning that ▇▇▇▇▇▇▇▇▇ may be required or compelled to
divulge any confidential information. For purposes of this Agreement, “confidential information”
consists of that proprietary information subject to protection under the Uniform Trade Secrets Act
and includes, without limitation, Crystal Clean’s customer list and price information for all
customers and other intangible property. “Confidential information” does not include information
in the public domain through no fault of the ▇▇▇▇▇▇▇▇▇ or reasonably discoverable without access to
internal documents or information.
(3) Non Competition. During the term of ▇▇▇▇▇▇▇▇▇’▇ ownership of Units and for a
period of two (2) years from the date of ▇▇▇▇▇▇▇▇▇’▇ cessation of such ownership (“Restricted
Period”), ▇▇▇▇▇▇▇▇▇ will not, other than for the exclusive benefit of Crystal Clean, engage in the
Business (as defined below) in the geographical area in which Crystal Clean conducts Business
during the term of ▇▇▇▇▇▇▇▇▇’▇ ownership of Units (“Territory”), whether as an employee, owner,
member, manager, consultant, agent, partner, service provider or in any other capacity.
For purposes of this Agreement, the term “Business” means the business of providing
environmental and fluid management services to small and medium sized customers and providing parts
washing and drum disposal services (“Business”).
(4) Non-Solicitation; Non-Piracy. During the Restricted Period, ▇▇▇▇▇▇▇▇▇ will not
personally call on any person or business organization which was a customer of Crystal Clean during
the ▇▇▇▇▇▇▇▇▇’▇ ownership of Units for Business within the Territory. Further, during the
Restricted Period, ▇▇▇▇▇▇▇▇▇ will not, without the consent of Crystal Clean, for ▇▇▇▇▇▇▇▇▇’▇ own
account or for any third party, solicit or endeavor to entice away, offer employment to or employ
any person who was employed by Crystal Clean during the twelve (12) month period immediately before
the cessation of such ownership.
(5) Other Services. ▇▇▇▇▇▇▇▇▇ may, without causing ▇▇▇▇▇▇▇▇▇ to be in breach of this
Agreement, enter into other business endeavors during the Restricted Period or may engage in the
Business outside of the Territory; provided that ▇▇▇▇▇▇▇▇▇’▇ other permitted services will not be
deemed to allow ▇▇▇▇▇▇▇▇▇ to use or disclose “Confidential Information” in contravention of this
Agreement or other agreements between ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ Clean.
(6) Default and Remedies. ▇▇▇▇▇▇▇▇▇ acknowledges and agrees that, if ▇▇▇▇▇▇▇▇▇
directly or indirectly breaches, violates, or fails to perform fully his obligations under this
Agreement (“Default”), each Default shall cause immediate and irreparable harm to Crystal Clean, in
a manner which cannot be adequately compensated in damages. Crystal Clean and ▇▇▇▇▇▇▇▇▇ agree that
in the event of any such Default, Crystal Clean, in addition to all other available remedies at law
or in equity, may, insofar as ▇▇▇▇▇▇▇▇▇ may be concerned, be entitled to temporary, preliminary and
permanent injunctive relief to restrain such Default(s) by ▇▇▇▇▇▇▇▇▇ or others acting in concert
with ▇▇▇▇▇▇▇▇▇, and to all of its costs, expenses, and reasonable attorneys’ fees incurred in any
enforcement proceedings in which Crystal Clean prevails in whole or in part. Nothing contained
herein shall restrict or limit in any manner Crystal Clean’s right to obtain any form of relief,
legal or equitable, in an action brought to enforce Crystal Clean’s rights.
(7) Severability. All provisions of this Agreement are intended to be severable.
Each provision of this Agreement constitutes a separate and distinct covenant. In the event any
term, provision, or restriction in this Agreement is held to be illegal, invalid or unenforceable
in any respect, such finding shall in no way affect the legality, validity, or enforceability of
all other provisions of this Agreement. Crystal Clean and ▇▇▇▇▇▇▇▇▇ agree that any such
unenforceable term, provision or restriction shall be deemed modified to the extent necessary to
permit its enforcement to the maximum extent permitted by applicable law.
(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in
exercising its rights shall operate as a waiver, nor shall a single or partial exercise preclude
any further exercise of any right, power, or privilege by any party.
(9) Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Indiana. The state and federal courts
located in ▇▇▇▇▇▇ County, Indiana, or ▇▇▇▇ County, Illinois, shall be the courts of exclusive
jurisdiction and venue over any enforcement of this Agreement.
(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the
heirs, executors, administrators, successors and assigns of the parties hereto. ▇▇▇▇▇▇▇▇▇ hereby
agrees that the provisions of this Agreement may be assigned in whole or in part by Crystal Clean,
and ▇▇▇▇▇▇▇▇▇ hereby consents to such assignment and agrees to be bound to the assignee under all
of the terms and conditions of this Agreement.
(11) Notices. All notices and communications hereunder shall be in writing and shall
be deemed to be duly given if delivered in accordance with Section 10(g) of the HCC Agreement.
(12) Modification. No waiver, alteration or modification of any provision of this
Agreement will be valid unless made in writing and signed by both parties hereto. The waiver of
any breach or default shall not be deemed to waive any subsequent breach or default.
(13) Entire Agreement. This Agreement constitutes the entire agreement of the parties
relative to the subject matter and supersedes any prior understanding, agreements or
representations by or among the parties, written or oral with regard to the subject matter of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure
Agreement on the day and year first above written.
| /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||||||
| Heritage-Crystal Clean, LLC | ||||||
| By: | /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ | |||||
| ▇▇▇ ▇▇▇▇▇▇▇▇ | ||||||
| President | ||||||