EXHIBIT 4.5
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NON-COMPETITION AGREEMENT
This NON-COMPETITION AGREEMENT (this "Agreement"), dated as of May 28,
1999, among Neptune Orient Lines Limited, a Singapore corporation ("NOL"), APL
Limited, a Delaware corporation ("APL"), APL Land Transport Services, Inc., a
Tennessee corporation (the "Company") and Coyote Acquisition LLC (the
"Purchaser").
RECITALS
WHEREAS, APL and the Purchaser have entered a Stock Purchase Agreement,
dated as of March 15, 1999 (the "Stock Purchase Agreement"), pursuant to which
APL has agreed to sell to the Purchaser, and the Purchaser has agreed to
purchase from APL, shares of common stock of the Company.
WHEREAS, in connection with, and in order to induce Purchaser to
consummate, the transactions contemplated by the Stock Purchase Agreement, NOL
and APL are willing to enter into certain covenants, on behalf of themselves and
their Affiliates, to the Company and the Purchaser regarding their activities,
all as set forth herein.
NOW, THEREFORE, in consideration of the premises and agreements contained
herein, the parties hereto agree as follows:
1. Defined Terms.
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1.1 For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
"APLAL" means APL Automotive Logistics, a wholly owned subsidiary of APL.
"Automotive Logistics Business" means the provision of retail shipping
coordination, shipping management, shipping consolidation, product shipment,
parts inspections, loading and unloading of shipments, tracking of shipments,
warehousing of shipments, parts labeling, inbound sorting, truck load and milk
run management, kitting, sub-assembly, repackaging of shipments, bin management
performance, critical parts expediting and all other shipping and logistics
services related to or derived from the businesses of automotive manufacturers,
including the subsidiaries of those manufacturers who produce engines and other
products which are not used in automobiles.
"Confidential Information" shall have the meaning specified in Section 6.
"IMS" means Intermodal Management Services, a division of American
Consolidation Services of North America, Ltd., a subsidiary of APL.
"Long-Haul Trucking Companies" means providers of transportation services
via trucks in the United States and Canada for distances in excess of 750 miles
per shipment.
"Non-compete Period" means the period from and after the Closing to the
tenth anniversary of the Closing.
"Non-Stacktrain Business" shall mean arranging retail intermodal
transportation services, including but not limited to, such services as are
arranged by IMS.
"Offer" shall have the meaning set forth in Section 3.
"Stacktrain Business" shall have the meaning set forth in Section 2.1.
"Third Party" means, with respect to NOL, APL, the Company or the
Purchaser, any Person that is not an Affiliate of NOL, APL, the Company or the
Purchaser, as the case may be.
"Transferee" means, with respect to the Stacktrain Business, the Non-
Stacktrain Business or the Automotive Logistics Business, any Third Party to
whom the Purchaser, the Company, NOL or APL, as the case may be, transfers all
or substantially all of the assets and liabilities of such Stacktrain Business,
Non-Stacktrain Business or Automotive Logistics Business.
1.2 Unless otherwise defined herein, each capitalized term used herein
shall have the meaning given to it in the Stock Purchase Agreement.
2. Non-competition by NOL, APL and their Affiliates.
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2.1 During the Non-compete Period, NOL and APL shall not, and shall not
permit any of their Affiliates to, engage, by ownership of debt or equity
interests in any business (other than the Company), by participation in the
management or operations of any business (other than the Company) or by lending
their respective names (or any part or variant thereof) to any business (other
than the Company) in the business being conducted on the date of this Agreement
by the Company (the "Stacktrain Business").
2.2 Subject to Section 3, the restrictions set forth in Section 2.1 shall
not prevent NOL, APL or any of their Affiliates from engaging in the Automotive
Logistics Business or the Non-Stacktrain Business; provided, however, that none
of NOL, APL or
any of their Affiliates may market any domestic (United States or Canada) retail
intermodal services to any present or future customer to whom it does not
provide international transportation services.
2.3 NOL and APL acknowledge that the foregoing covenants by NOL and APL
are essential elements of the transactions contemplated by this Agreement and by
the Stock Purchase Agreement and that, but for NOL's and APL's agreement to
comply with such covenants, the Purchaser would not have agreed to enter into
such transactions. NOL and APL have consulted with their counsel and have been
advised in all respects concerning the reasonableness and propriety of such
covenants, including, without limitation, with respect to the area and duration
of the covenants herein; and that good and valuable consideration exists for
their agreeing to be bound by such covenants.
3. Non-solicitation.
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3.1 Except as provided in the Information Technology Outsourcing and
License Agreement, during the Non-compete Period, NOL and APL shall not, and
shall cause each of its Affiliates not to, (i) directly or indirectly recruit or
solicit any person then employed by the Company for employment with NOL, APL or
any of their Affiliates or (ii) hire any person then employed by the Company who
had been an employee of the Business as of the Closing Date; provided, however,
that such restrictions shall not apply to any solicitation directed at the
public or the transportation industry in general nor to solicitation or hiring
of any employee if employment discussions are initiated by such employee.
3.2 During the Non-compete Period, Purchaser shall not, and shall cause
each of its Affiliates not to, (i) directly or indirectly recruit or solicit any
person then employed by NOL, APL or their Affiliates (other than the Company)
for employment with Purchaser or any of its Affiliates or (ii) hire any person
then employed by NOL, APL or their Affiliates who had been an employee of NOL,
APL or their Affiliates as of the Closing Date; provided, however, that such
restrictions shall not apply to any solicitation directed at the public or the
transportation industry in general nor to the solicitation or hiring of any
employee if employment discussions are initiated by such employee.
4. Assignment.
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4.1 Except as expressly set forth herein, no party may assign its rights
or obligations under this Agreement, whether by operation of law or otherwise,
without the prior written consent of the other parties.
4.2 NOL and APL may assign their rights and obligations hereunder to one
or more Transferees in connection with the sale of NOL or APL or all or
substantially all of the assets of NOL or APL provided that (a) the Transferee
shall be bound by the terms
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and conditions of this Agreement as though it were a party hereto; and (b)
notwithstanding anything herein to the contrary, the Transferee shall not be
prevented from engaging in or conducting any business which it was engaging in
or conducting prior to such acquisition; and provided further that any such
assignment shall not release NOL or APL from their obligations hereunder.
4.3 The Purchaser may assign its rights hereunder to one or more
Transferees in connection with the sale of the Company or all or substantially
all of the assets of the Stacktrain Business, provided that the Transferee shall
be bound by the terms and conditions of this Agreement as though it were a party
hereto.
4.4 Subject to the foregoing, this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns.
5. Non-Disclosure.
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The parties hereto acknowledge and agree that any proprietary financial,
marketing, customer or other information pertaining to the business or
operations of the Company are confidential ("Confidential Information"). The
term "Confidential Information" does not include information which (i) is or
becomes publicly available other than as a result of a disclosure by NOL, APL or
their Affiliates or Representatives or (ii) is or becomes available to NOL or
APL on a nonconfidential basis from a source (other than the Company and its
representatives) which, to NOL's or APL's knowledge after due inquiry, is not
prohibited from disclosing such information to NOL or APL by a legal,
contractual or fiduciary obligation to the Company. The term "Representatives"
means financial advisors, counsel and accountants.
NOL and APL shall not, and shall cause their Affiliates not to, disclose
any Confidential Information without the prior written consent of the Company;
provided, however, NOL and APL may reveal Confidential Information to its
Representatives (i) who need to know the Confidential Information for purposes
of their work, (ii) who are informed of the confidential nature of the
Confidential Information and (iii) who agree to act in accordance with this
Section 5. NOL and APL will cause their representatives to observe the terms
of this Section 5, and will be responsible for any breach of this Section 5 by
any of their Representatives.
In the event that NOL, APL or any of their Affiliates or Representatives
are requested pursuant to, or required by, applicable law, regulation or legal
process to disclose any of the Confidential Information, NOL or APL will notify
the Company promptly so the Company may seek a protective order or other
appropriate remedy or, in its sole discretion, waive compliance with the terms
of this Section 5. In the event that no such protective order or other remedy
is obtained, or that the Company does not waive
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compliance with the terms of this Section 5, NOL or APL will furnish only that
portion of the Confidential Information that it is advised by counsel is legally
required and will exercise all reasonable efforts to obtain reliable assurance
that confidential treatment will be accorded the Confidential Information.
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6. Miscellaneous.
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6.1 The parties hereto recognize that, because of the nature of the
subject matter of this Agreement, money damages or other remedies at law may not
be sufficient or adequate remedies in the event of a breach of or violation of,
or default under, this Agreement and that any such breach, violation or default
or threatened breach, violation or default would cause irreparable injury to the
Company, the Purchaser, NOL, APL and their respective Affiliates. Accordingly,
NOL, APL, the Company or the Purchaser and their respective Affiliates shall
have the right, in addition to all other remedies available to them, to have the
provisions of this Agreement specifically enforced by any court of competent
jurisdiction, it being acknowledged and agreed by the Purchaser, the Company,
NOL and APL that an injunction may be issued without the posting of a bond or
other security interest being required against the Purchaser, the Company, NOL,
APL or any of their respective Affiliates to stop or prevent any such breach,
violation or default or threatened breach, violation or default.
6.2 This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of conflicts of
laws.
6.3 If any covenant or agreement contained herein, or any part hereof, is
held to be invalid, illegal or unenforceable for any reason, the remainder of
this Agreement shall be construed as if such provision or part thereof was not
included herein; provided, that if the unenforceability of any such covenant or
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agreement is because of the breadth of its scope, the duration of such provision
or the geographical area covered thereby, the parties agree that the court
making such determination shall have the power to reduce the breadth of the
scope or the duration and/or geographical area of such provision such that, in
its reduced form, said provision shall then be enforceable; provided further,
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however, that any such modification shall apply only with respect to the
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operation of such provision in the particular jurisdiction in which such
determination is made.
6.4 This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof, and supersedes all prior agreements
between the parties with respect to the subject matter hereof. There are no
representations, warranties, covenants or undertakings with respect to the
subject matter hereof other than those expressly set forth herein.
6.5 This Agreement may not be amended or modified except by the express
written consent of the parties hereto. Any waiver by the parties of a breach of
any provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach thereof or of any other provision.
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6.6 All notices or other communications hereunder shall be in writing and
shall be made in accordance with Section 10.3 of the Stock Purchase Agreement.
6.7 Except as expressly provided in this Agreement, the parties hereto
intend that this Agreement shall not benefit or create any right or cause of
action in or on behalf of any person other than the parties hereto.
6.8 This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and each of the undersigned hereby represents and warrants that he or
she has been and is, on the date of this Agreement, duly authorized by all
necessary and appropriate action to execute this Agreement.
NEPTUNE ORIENT LINES LIMITED
By: /s/ Timothy J. Rhein
__________________________
Name: Timothy J. Rhein
Title: Director
APL LIMITED
By: /s/ Timothy J. Windle
__________________________
Name: Timothy J. Windle
Title: Assistant Secretary
APL LAND TRANSPORT SERVICES, INC.
By: /s/ Ann Fingarette-Hasse
__________________________
Name: Ann Fingarette-Hasse
Title: Assistant Secretary
COYOTE ACQUISITION LLC
By: /s/ Marc E. Becker
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Name: Marc E. Becker
Title: Vice President
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