EXHIBIT 2.2
NONCOMPETITION AGREEMENT
------------------------
This Noncompetition Agreement (the "Agreement") is made and entered
into as of July 24, 1997, by and between ________________ ("Covenantor") and
NEWPARK RESOURCES, INC., a Delaware corporation ("Newpark"), ancillary to and as
required by the Agreement and Plan of Reorganization (the "Exchange Agreement"),
dated July 24, 1997, by and among Newpark and the "Stockholders" so identified
in the Exchange Agreement (including Covenantor), pursuant to which Newpark has
acquired 100% of the capital stock of XXXXXXX CONSTRUCTION COMPANY, INC., a
Texas corporation, and XXXXXXX CONSTRUCTION COMPANY OF LOUISIANA, INC., a Texas
corporation (together, the "Companies"). Unless otherwise provided herein all
terms used in this Agreement that are defined in the Exchange Agreement shall
have the same meanings herein as in the Exchange Agreement.
In consideration of the foregoing, and in order to satisfy a condition
precedent to the consummation of the Exchange, Covenantor and Newpark hereby
agree and covenant as follows:
1. Certain Definitions. The following terms used herein shall have the
following meanings:
Affiliate or affiliate - a Person that directly or indirectly through
one or more intermediaries, controls, is controlled by or is under common
control with the Person specified. For purposes of this definition, "control"
(including the terms "controlling," "controlled by" and "under common control
with") of a Person means the possession, directly or indirectly, of the power to
(a) vote 50% or more of the voting interests in such Person or (b) direct or
cause the direction of the management and policies of such Person, whether by
contract or otherwise.
Business - Any one or more of the following activities: selling,
providing, installing, recycling, renting, marketing, or dealing in or with or
otherwise soliciting orders for any of the Products and Services or any
products, services, materials, supplies or support activities that compete with
or may be used to replace any Products and Services.
Competitor - Any Person that, directly or indirectly, engages in any
aspect of the Business within any portion of the Territory.
Person or person - Any individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or any agency or instrumentality thereof.
Products and Services - All products, services, materials, supplies
and support activities which, as of the date hereof or within twelve months
prior to the date hereof, are or have been provided, sold, installed, recycled,
rented, marketed or dealt in or with by either of the Companies, and all
competitive products, services, materials, supplies and support activities.
The Territory - All or any part of the following: the States of
Louisiana, Texas, Mississippi and Alabama and the Gulf of Mexico.
2. Noncompetition. Covenantor hereby agrees that he will not, during
the term of this Agreement, directly or indirectly, or through one or more
Affiliates, do any one or more of the following: (a) engage in any aspect of the
Business, whether as an employee, agent, independent contractor or otherwise ;
(b) own any interest in any Competitor; (c) operate, join, control or otherwise
participate in any Competitor; (d) lend credit or money for the purpose of
assisting another to establish or operate any Competitor; (e) request or advise
any present or future customer or supplier of either of the Companies to
withdraw, curtail or cancel its business with any of them; or (f) induce or
influence (or attempt to induce or influence) any person who is engaged (as an
employee, agent, independent contractor or otherwise) by either of the Companies
or any subsidiary to terminate his or her employment or engagement or to perform
any services for a Competitor; provided, that nothing herein shall prohibit
Covenantor from holding an equity interest of less than 2% of the outstanding
capital stock of any Competitor whose equity securities are traded on a national
stock exchange or are quoted on Nasdaq.
3. Confidentiality. Covenantor shall keep secret and retain in
confidence, and shall not use for the benefit of Covenantor or others, any
confidential information concerning the business of either of the Companies or
their affiliates ("Confidential Information") including, without limitation,
"know-how," trade secrets, customer lists, details of client or consultant
contracts, pricing policies, operational methods, marketing plans or strategies,
business acquisition plans, technical processes and designs and design projects
of either of the Companies and their affiliates relating to the business of the
Companies learned by Covenantor as a result of prior and current business
relationships with the Companies or their predecessors. Confidential
Information shall not include information which (a) is or becomes generally
available to the public other than as a result of a disclosure by Covenantor,
(b) was available to Covenantor on a non-confidential basis prior to its
disclosure to the Covenantor by the Companies or (c) becomes available to
Covenantor on a non-confidential basis from a source other than the Companies,
provided that such source is not bound by a confidentiality agreement with the
Companies known to Covenantor.
4. Term. The term of this Agreement commences on the date hereof and
shall continue for a period of sixty months. Covenantor hereby acknowledges the
receipt and sufficiency of full consideration for this Agreement.
5. Injunctive Relief. Covenantor hereby stipulates and agrees that
any breach by him of this Agreement cannot be reasonably or adequately
compensated by damages in an action at law and that, in the event of such
breach, Newpark shall be entitled to injunctive relief, which may include but
shall not be limited to restraining Covenantor from engaging in any activity
that would constitute a breach of this Agreement.
6. Severability. Covenantor acknowledges that he has carefully read
and considered the provisions of Paragraphs 1 through 4 of this Agreement and,
having done so, agrees that the restrictions set forth therein (including but
not limited to the time periods of restriction and the geographical areas of
restriction) are fair and reasonable and are reasonably required to protect the
interests of Newpark and its stockholders. If, notwithstanding the foregoing,
any of the provisions of Paragraphs 1 through 4 shall be held to be invalid or
unenforceable, the remaining provisions thereof shall nevertheless continue to
be valid and enforceable, as though the invalid or
2
unenforceable parts had not been included therein. If any provision of
Paragraphs 1 through 4 hereof relating to time periods or areas of restriction
or both shall be declared by a court of competent jurisdiction to exceed the
maximum time periods or areas (or both) that such court deems reasonable and
enforceable, said time periods or areas of restriction or both shall be deemed
to become and thereafter shall be the maximum time periods and areas which such
court deems reasonable and enforceable.
7. Entire Agreement. This Agreement constitutes the entire agreement
of Covenantor and Newpark with respect to the subject matter hereof and
supersedes all prior and contemporaneous oral agreements, understandings,
negotiations and discussions of the parties. No supplement, modification or
waiver of this Agreement shall be binding unless executed in writing by the
party to be bound thereby. 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
unless otherwise expressly provided. Any failure to insist on strict compliance
with any of the terms and conditions of this Agreement shall not be deemed a
waiver of any such terms or conditions.
8. Nature of Obligations. All covenants and obligations of
Covenantor hereunder shall be binding on Covenantor, his assigns, successors and
legal representatives and shall inure to the benefit of Newpark and all of its
Affiliates that engage in any aspect of the Business in any part of the
Territory.
9. Law Governing. The provisions of this Agreement and all rights
and obligations hereunder shall be governed by and construed in accordance with
the internal laws of the State of Texas applicable to contracts made and to be
wholly performed within the State of Texas.
10. Attorneys' Fees. In any litigation relating to this Agreement,
including litigation with respect to any supplement, modification or waiver of
this Agreement or any of its provisions, the prevailing party shall be entitled
to recover its costs and reasonable attorneys' fees.
11. Notices. Any and all notices, demands, requests or other
communications hereunder shall be in writing and shall be deemed duly given when
personally delivered to or transmitted by overnight express delivery or by
facsimile to and received by the party to whom such notice is intended, or in
lieu of such personal delivery or overnight express delivery or facsimile
transmission, 48 hours after deposit in the United States mail, first-class,
certified or registered, postage prepaid, return receipt requested, addressed to
the applicable party at the address provided below. Either party may change its
address for the purpose of this Paragraph 11 by giving notice of such change to
the other party in the manner which is provided in this Xxxxxxxxx 00.
Xxxxxxxxxx: ________________________
________________________
________________________
3
Newpark: Newpark Resources, Inc.
0000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Attention: Secretary
Facsimile No.: (000) 000-0000
12. Captions. The captions in this Agreement are included for
convenience of reference only, do not constitute a part hereof and shall be
disregarded in the interpretation or construction hereof.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
Covenantor:
____________________________________
NEWPARK RESOURCES, INC.
By__________________________________
Xxxxxxx X. Xxxxxx, Chief Financial
Officer
4
