Noncompetition Agreement - Master Graphics Inc. and Wendell Burns
NONCOMPETITION AGREEMENT
This Noncompetition Agreement (this "Agreement") is made as of December 16,
1997, by and between MASTER GRAPHICS, INC., a Delaware corporation ("Buyer"),
and Wendell Burns, residing in Chattanooga, Tennessee ("Seller").
RECITALS
Concurrently with the execution and delivery of this Agreement, Buyer is
purchasing from Seller certain shares (the "Shares") of common stock of Jones
Printing Company, Inc. (the "Acquired Company") pursuant to the terms and
conditions of a stock purchase agreement made as of December 16, 1997, (the
"Stock Purchase Agreement"). Contemporaneous with the purchase of the Shares,
the Acquired Company will be merged into Premier Graphics, Inc., a Delaware
corporation (the "Company"), which is a wholly owned subsidiary of Buyer.
Section 2.4(a)(iv) of the Stock Purchase Agreement requires that a
noncompetition agreement be executed and delivered by Seller 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 Company prior to the date hereof and has become
familiar with the following, any and all of which constitute confidential
information of the Company, (collectively the "Confidential Information"): (i)
any and all trade secrets concerning the business and affairs of the Company,
product specifications, data, know-how, formulae, compositions, processes,
designs, samples, current and planned manufacturing and distribution methods and
processes, customer lists, current and anticipated customer requirements, price
lists, market studies, business plans, and computer software and programs of the
Company and any other information, however documented, of the Company that is a
trade secret; (ii) any and all information concerning the business and affairs
of the Company (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, and 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 Company containing or based, in whole or in part, on any
information included in the foregoing, (b) the business of the Company is
national in scope, (c) its products and services are marketed throughout the
United
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States; (d) the Company competes 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; (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 Company 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 Company. Therefore, during the period in which the non-compete provisions
set forth in Section 4 below are in force, Seller will not 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 Company. 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 Company 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 as
additional consideration for the consideration to be paid to Seller under the
Stock Purchase Agreement Seller agrees that:
(a) For so long as Seller is employed by Buyer or any affiliate, but for a
minimum period of seven (7) 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, within the State of Tennessee and all contiguous 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.
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(ii) Seller will not, directly or indirectly, either for himself or any other
Person, (A) induce or attempt to induce any employee of the Company to leave the
employ of the Company, (B) in any way interfere with the relationship between
the Company and any employee of the Company, (C) employ, or otherwise engage as
an employee, independent contractor, or otherwise, any employee of the Company,
or (D) induce or attempt to induce any customer, supplier, licensee, or business
relation of the Company to cease doing business with the Company, or in any way
interfere with the relationship between any customer, supplier, licensee, or
business relation of the 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
the 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 seven (7) year period,
disparage Buyer or the Company, or any of their shareholders, directors,
officers, employees, or agents; and
(d) Seller will, for a period of three (3) years after the Closing, within ten
days after accepting any employment, advise Buyer of the identity of any
employer of Seller. Buyer or the 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.
(e) In the event Buyer defaults in the payment of amounts due under the Fixed
Notes and such default is not cured within the applicable cure periods, all
restrictions on Seller's activities shall cease.
5. REMEDIES
If Seller breaches the covenants set forth in Sections 3 or 4 of this Agreement,
Buyer and the Company will be entitled to the following remedies:
(a) Damages from Seller; and
(b) 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 Company and would be an inadequate remedy for
such breach.
In the event Buyer receives an award of damages against Seller for a breach of
the covenants set forth in Sections 3 or 4 of this Agreement, the amount of the
award shall reduce the amount owed under the Fixed Note payable to Seller.
Should the award be in excess of the amount owed under the Fixed Note payable to
Seller, Buyer may pursue collection of such excess from Seller. The rights and
remedies of the parties to this Agreement are cumulative and not alternative.
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6. SUCCESSORS AND ASSIGNS
This Agreement will be binding upon Buyer, the Company and Seller and will inure
to the benefit of Buyer and the Company and their affiliates, successors and
assigns and Seller and Seller's assigns, heirs and legal representatives.
7. 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.
8. GOVERNING LAW
This Agreement will be governed by the laws of the State of Tennessee without
regard to conflicts of laws principles.
9. 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 Tennessee, County of Shelby, or, if it has or can
acquire jurisdiction, in the United States District Court for the Western
District of Tennessee, 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.
10. 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
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lesser scope, time and geographic area, will be effective, binding and
enforceable against Seller.
11. 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.
12. 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.
13. 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: Wendell Burns
1907 Crutchfield Street
Chattanooga, Tennessee 37406
Facsimile No.: (423) 622-9084
with a copy to: Baker, Donelson, Bearman & Caldwell
1800 Republic Centre
633 Chestnut Street
Chattanooga, Tennessee 37450
Attention: Ken Beckman
Buyer: Master Graphics, Inc
2500 Lamar Avenue
Memphis, Tennessee 38114
Attention: John P. Miller
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Facsimile No.:(901) 744-6012
with a copy to: Black Bobango & Morgan
530 Oak Court Drive, Suite 345
Memphis, Tennessee 38117
Attention: Michael P. Morgan, Esq.
Facsimile No.:(901) 762-0530
14. ENTIRE AGREEMENT
This Agreement, the Employment Agreement and the Stock Purchase Agreement
constitute the entire agreement between the parties with respect to the subject
matter of this Agreement and supersede 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: MASTER GRAPHICS, INC.
By: /s/ John P. Miller
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Its: President
SELLER:
/s/ Wendell Burns
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Wendell Burns