EXHIBIT 10.12
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT is entered effective as of July 1, 1992
by and between Ed L. Vinecour (hereinafter referred to as "Covenantor") and ATG,
Inc., a California corporation (hereinafter referred to as "the Company").
WITNESSETH:
WHEREAS, effective as of July 1, 1992, Covenantor entered into a STOCK
PURCHASE AGREEMENT with the Company (hereinafter referred to as "the Agreement")
pursuant to which Seller agreed to sell to the Company, in complete redemption,
669,375 shares of the outstanding common stock of the Company which constitutes
all of Covenantor's right, title and interest in and to shares of any and all
interests in the Company except as issued pursuant to the Agreement; and
WHEREAS, a condition to the purchase and sale contemplated in the
Agreement is that Covenantor agree to forego his right to compete with the
Company in accordance with the terms and conditions herein contained;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained the parties hereto agree as follows:
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1. COVENANT NOT TO COMPETE.
Covenantor agrees that he will not at any time within the ten (10)
year period immediately following the consummation of the purchase and sale
described in the Agreement, either directly or indirectly, engage in the low
level nuclear waste collection, processing, recycling and/or disposal business
within the United States of America or have any interest in any person, firm,
corporation or business (whether as an employee, officer, director, agent,
security holder, creditor, consultant or otherwise) that engages in the low
level nuclear waste collection, processing, recycling and/ or disposal business
in said territory for so long as the Company or any person deriving title to the
goodwill of the Company, shall engage in this activity in such territory. The
foregoing notwithstanding, the ownership of less than five percent (5%) of any
one class of the publicly traded securities of a corporation which has total
assets exceeding One Million Dollars ($1,000,000.00) shall not be prohibited by
the provisions of this paragraph.
2. CONSIDERATION.
For and in consideration of Covenantor's covenant not to compete herein
above contained, the Company agrees to pay to Covenantor the sum of Two Hundred
Ninety Thousand Dollars ($290,000.00) payable in annual installments on each
July 1st, commencing on July 1, 1993 in accordance with the following schedule:
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PAYMENT DATE PAYMENT AMOUNT
July 1, 1993 $20,000.00
July 1, 1994 $90,000.00
July 1, 1995 $90,000.00
July 1, 1996 $90,000.00
At the written election(s) of Covenantor given to the Company at least
thirty (30) days prior to any payment date set forth above, in lieu of the
payments otherwise due hereunder Company shall purchase for Covenantor such
annuity policy or policies as may be designated by Covenantor provided that the
acquisition cost of same shall not exceed the payment amount otherwise then due
hereunder. This option may be exercised in whole or in part with respect to any
payment due by the company to Covenantor hereunder.
3. DEFAULT BY COVENANTOR.
In the event that Covenantor defaults under this Agreement and fails to
cure such default within thirty (30) days of the date of written notice from the
Company given in the manner herein provided, then and in that event the Company
shall be entitled to injunctive relief, and such other relief as may be provided
by law or in equity. Covenantor hereby acknowledges and agrees that any breach
by him of the covenant not to compete contained herein is likely to result in
injury of a nature which would justify the entry of an injunction and temporary
restraining order against Covenantor to restrain any such breach. In the event
of any such breach by
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Covenantor, the Company shall be also entitled, if it so elects, to institute
and prosecute proceedings in any court of competent jurisdiction, either in law
or in equity, to obtain consequential damages and to enforce the specific
performance of Covenantor's covenant herein contained.
4. JUDICIAL MODIFICATION.
If any part of this Agreement is found to be unenforceable, the
remainder of this Agreement shall be preserved in full force and effect and the
covenant not to compete herein contained shall be modified to the minimum extent
necessary to rake it enforceable under the laws of the State of California.
5. NOTICES.
Any notice or request required or permitted to be given shall be given
in writing and shall be deemed to have been given when deposited in the United
States of America mail, first class, postage prepaid, duly addressed, registered
or certified, return receipt requested, at the following addresses, or at such
other address or addresses as is directed by either party by written notice
delivered to the other as in this paragraph provided:
COVENANTOR COMPANY
Ed L. Vinecour ATG, Inc.
Route 1, Box AA 280 Fremont Boulevard
Oakley, CA 94562 Fremont, CA 94538
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6. INUREMENT.
This Agreement shall inure to the benefit of and shall be binding upon
the assigns, successors in interest, personal representatives, estates, heirs
and legatees of each of the parties hereto.
7. ATTORNEY'S FEES.
In the event of any controversy, claim or dispute between the parties
hereto arising out of or relating to this Agreement or the breach thereof, the
prevailing party shall be entitled to recover from the losing party reasonable
expenses, attorneys fees and costs.
8. AGREEMENT
This Agreement contains the entire agreement of the parties hereto and
supersedes any prior written or oral agreements between them concerning the
subject matter contained herein. There are no express or implied
representations, warranties, arrangements or understandings, oral or written,
between and among the parties hereto, relating to the subject matter contained
in this Agreement which are not fully expressed herein.
9. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the provisions of the laws of the State of California.
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Executed on the day and year first above written at Fermont, California.
"COVENANTOR" _______________________________
Ed L. Vinecour
"COMPANY" ATG, INC.
a California corporation
By ____________________________
Authorized Representative
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