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EXHIBIT 2.1j
NON-COMPETITION AGREEMENT
AGREEMENT, dated as of October 21, 1999, between COACH AND CAR
EQUIPMENT CORP., a Nevada corporation f/k/a Coach and Car Acquisition Corp.
("Company"), and CCEC CAPITAL CORP., an Arizona corporation f/k/a Coach and Car
Equipment Corporation ("Coach and Car").
WHEREAS, pursuant to an Amended and Restated Asset Purchase Agreement
dated August 31, 1999 ("Purchase Agreement"), the Company acquired all of the
operating assets of Coach and Car, which owns and operates a business located
principally in Elk Grove Village, Illinois, engaged in rail transportation hard
goods and soft goods manufacture and sale (the "Business").
WHEREAS, the Company's agreement not to compete with Coach and Car and
its affiliated entities under common control in the airline seating soft goods
business (the "Excluded Business") is a material inducement in Coach and Car's
agreement to refinance the promissory note given by the Company to Coach and Car
in connection with the Purchase Agreement.
NOW, THEREFORE, the Company and Coach and Car covenant and agree as
follows:
1. No Competition. For a period of seven (7) years from the date
hereof, neither the Company nor any affiliated entity under common control with
the Company nor anyone acting on their behalf will:
(a) compete with Coach and Car or any affiliated company under
common control with Coach and Car ("Coach and Car Affiliate") through any
interest in the ownership or operation of a business similar to the Excluded
Business; or
(b) interfere with, disrupt or attempt to interfere with or disrupt
any past, present or prospective relationship, contractual or otherwise, between
Coach and Car or any Coach and Car Affiliate and (i) any supplier or employee of
the Excluded Business, or (ii) any customer who has used the goods and services
of the Excluded Business.
The term "compete" as used herein means to engage at any geographic
location in competition directly or indirectly, either as a proprietor,
employee, agent, consultant, director, officer, creditor, partner, stockholder
(other than solely as a minority stockholder of a corporation listed on a
national securities exchange or whose stock is regularly traded in the
over-the-counter market) or in any other capacity or manner whatever.
2. Remedies. Seller agrees and acknowledges the violations of the
covenants and agreements in Section 1 hereof would cause irreparable injury to
Coach and Car, that remedies at law for a violation or threatened violation
thereof would be inadequate, and that Coach and Car is entitled to temporary and
permanent injunctive or other equitable relief in the event of such violation or
threatened violation as well as to damages and other legal remedies. In the
event that Coach and Car prevails in any court execution brought to enforce the
provisions of this Agreement, it shall be entitled to recover its costs,
including reasonable attorneys fees, in addition to any other relief granted.
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3. Interpretation; Separability. The Company and Coach and Car
recognize that the laws and public policies of the various states of the United
States differ as to the validity and enforceability of covenants and agreements
similar to those contained in Section 1 hereof. It is the intention of the
Company and Coach and Car that the provisions of this Agreement shall be
enforced to the fullest extent permissible under the laws and the public
policies of the States of Illinois and Arizona and of any other jurisdiction in
which enforcement may be sought, but that the enforceability (or the
modification to conform with such laws or public policies) of any provisions
hereof shall not render unenforceable or impair the remainder of this Agreement.
Accordingly, any provisions of this Agreement shall be deemed amended to delete
or modify, as necessary, the offending provisions and to alter the balance of
this Agreement in order to render the same valid and enforceable to the fullest
extent permissible.
4. Miscellaneous. This Agreement shall inure to the benefit of Coach
and Car, all Coach and Car Affiliates, and their successors and assigns. This
Agreement shall be governed in all respects by the laws of the State of Arizona.
The headings herein are for convenience of reference only and shall not be
deemed to be part of the substance of this Agreement.
5. Notices. Any notice of other communication under this Agreement
shall be in writing and shall be sent by certified or registered mail addressed
to the respective parties as follows:
If to the Company:
Coach and Car Equipment Corp.
730 West 22nd Street
Tempe, Arizona 85282
Attn: Michael Feinstein
If to Coach and Car:
Simula, Inc.
2700 N. Central Avenue
Suite 1000
Phoenix, Arizona 85004
Attn: Brad Forst
Any notice or other communication shall be deemed to have been given
when deposited, postage paid, in the United States mail. Either of the above
addresses may be changed any time on ten (10) days' prior notice given as
provided above.
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IN WITNESS WHEREOF, the Company and Coach and Car have executed this
agreement on the date first above written.
COACH AND CAR EQUIPMENT CORP., a Nevada
corporation formerly known as Coach and Car
Acquisition Corp.
By: /s/ Michael Feinstein
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Its: Vice President
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CCEC CAPITAL CORP., an Arizona corporation
formerly known as Coach and Car Equipment
Corporation
By: /s/ Brad Forst
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Its: Executive Vice President
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