EXHIIBT 10.22
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RESTRICTIVE COVENANT AGREEMENT
This RESTRICTIVE COVENANT AGREEMENT is made and entered into as of this
22nd day of December, 1994 by and among:
THE STROUSE, ADLER COMPANY, a corporation organized under the laws of the
State of Connecticut, having offices at 78 Olive Street, New Haven,
Connecticut 06511 (Strouse, Adler"); and
PBS ENTERPRISES LTD., a corporation organized under the laws of the State
of New York, having offices located at 56 Harrison Street, Suite 402, New
Rochelle, New York 10801 ("PBS"); and
MAGGIE MANUFACTURING COMPANY LTD., a limited liability company organized
under the laws of Jamaica, having offices located at Sandside, Port Maria,
Jamaica ("Maggie"); and
DAVEDAN PROPERTIES LTD., a limited liability company organized under the
laws of Jamaica, having offices located at Sandside, Port Maria, Jamaica
("Davedan"); and
PETER BLAIR SHALLECK, an individual residing at 4669 Palisade Avenue,
Riverdale, New York 10471; and
SANDY SHALLECK, an individual residing at 4669 Palisade Avenue, Riverdale,
New York 10471.
RECITALS
As a condition of entering into the Exclusive Subcontracting Agreement and
the Option Agreement (the "Option Agreement"), by and among Strouse, Adler, PBS,
Maggie and Davedan both of such agreements of even date herewith, and provided
that Strouse, Adler is not in default pursuant to such agreements, Strouse,
Adler desires to restrict Maggie, Davedan, PBS, Peter Shalleck and Sandy
Shalleck (each, individually a "Restricted Party" and, collectively, the
"Restricted Parties") from directly or indirectly engaging in the manufacture of
intimate apparel in Jamaica or soliciting or hiring any of Maggie's employees,
all as more particularly described herein.
Initial capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Option Agreement.
NOW THEREFORE, in consideration of the foregoing and of the mutual
representations, covenants and agreements hereinafter set forth, the parties
hereto hereby agree as follows:
1. Covenant not to Compete; Solicit. Each of the Restricted Parties agrees
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that, during the Restricted Period (as defined below), none of the Restricted
Parties shall, other than on behalf of Strouse, Adler, directly or indirectly,
(a) own, manage, operate, control or participate in the ownership, management,
operation or control of, serve as an officer, director, partner, employee,
agent, consultant, advisor, developer or in any similar capacity with, or have
any financial interest in or aid or assist anyone else in the conduct of, any
business or business activity related to the design, marketing, distribution or
manufacture of intimate apparel in the Restricted Territory (as defined below);
or (b) solicit the employment of, negotiate with respect to employment with, or
employ any Covered Employee (as defined below).
For purposes hereof, the following initial capitalized terms shall have the
following meanings:
"Covered Employees" means any person who is, or who was at any time within
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the six (6) month period preceding the date of such determination, an
employee, agent, consultant or advisor of Maggie or Strouse, Adler.
"Restricted Period" means the period commencing on the date hereof and
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ending on the termination of both the Exclusive Subcontracting Agreement
and the Option Agreement; provided, however, that, if Strouse Adler
exercises the Option, the Restricted Period shall end on the date five (5)
years after the Closing Date.
"Restricted Territory" means an area having a radius of thirty (30) miles
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from the Site as well as the country of Jamaica.
2. Enforcement. Each of the Restricted Parties acknowledges and agrees that
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the provisions of this Agreement are reasonable, both with respect to length of
duration and geographic scope. Strouse, Adler and each of the Restricted Parties
agree that the provisions of this Agreement are severable and separate and that
the unenforceability of any specific provision shall not affect the validity of
any other provision hereof. In the event that a court of competent jurisdiction
should determine that the time or geographic restrictions are unreasonable in
their scope, then, and in that event, the parties hereby authorize and empower
such court to insert reasonable limitations and enforce the restrictions in
accordance therewith so as to achieve as nearly as possible the business purpose
and intent of such restrictions.
Each Restricted Party further acknowledges and agrees that Strouse, Adler
will suffer irreparable harm as a result of a breach by any Restricted Party of
this Agreement for which money damages would be inadequate. Accordingly, in the
event of any actual or threatened breach by any Restricted Party of any
provision of this Agreement, Strouse, Adler shall, in addition to any other
legal remedies permitted by applicable law, be entitled to seek equitable
remedies, including, without limitation, specific performance, a
temporary restraining order or a permanent injunction, in any court of competent
jurisdiction to prevent or otherwise restrain a breach hereof and to recover all
costs and expenses, including, without limitation, reasonable attorneys' fees,
incurred in enforcing this Agreement. Such relief shall be in addition to and
not in substitution for any other remedies available to Strouse, Adler.
5. Miscellaneous. This Agreement contains the entire understanding of the
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parties with respect to the subject matter hereof. All understandings, oral and
written, and agreements heretofore had between the parties are merged in this
Agreement. No duties or obligations under this Agreement may be assigned by any
Restricted Party.
This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Connecticut. Each of the Restricted Parties hereby
irrevocably consents to the in personam jurisdiction of the United Sates
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District Court for the District of Connecticut and consents to service of
process by certified mail care of Stuart F. Gartner, Esq., Gartner & Bloom,
P.C., 885 Second Avenue, New York, NY 10017. Strouse, Adler hereby consents to
service of process by certified mail care of Wayne A. Martino, Esq., Brenner,
Saltzman & Wallman, 271 Whitney Avenue, New Haven, CT 06511. Any judgment
entered in enforcing this Agreement may be actionable in Jamaica and none of the
parties shall oppose the same.
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This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same document.
IN WITNESS WHEREOF, the parties hereto have each executed and delivered
this Agreement as of the date first above written.
THE STROUSE, ADLER COMPANY PBS ENTERPRISES LTD.
/s/Graeme Caulfield /s/Peter Blair Shalleck
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By: Graeme Caulfield By: Peter Blair Shalleck
Its: Vice President Operations Its: President
MAGGIE MANUFACTURING COMPANY, DAVEDAN PROPERTIES, LTD.
/s/Peter Blair Shalleck /s/Peter Blair Shalleck
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By: Peter Blair Shalleck By: Peter Blair Shalleck
Its: Managing Director Its: Managing Director
/s/Peter Blair Shalleck /s/Sandy Shalleck
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Peter Blair Shalleck Sandy Shalleck
(individually) (individually)