EXHIBIT 10.2
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COVENANT NOT-TO-COMPETE
THIS AGREEMENT made this _______ day of ______________ 1996, by and among
Josh T. Barnes, an individual of Charlevoix, Michigan, hereinafter known as
"Barnes", LEXALITE INTERNATIONAL CORPORATION, a Delaware corporation, of U.S.
31, Charlevoix, Michigan 49720, hereinafter known as "LexaLite" and SUMMA
INDUSTRIES, a California Corporation, having its principal place of business at
21250 Hawthorne Boulevard, Suite 500, Torrance, CA 90503, hereinafter known as
"SUMMA."
WHEREAS Barnes has been an active officer and employee of LexaLite for a
period in excess of 30 years, may become an employee of a company providing
consulting services thereto and, further, may at some future date no longer be
actively associated in the operation of the business and,
WHEREAS LexaLite has been active as a processor of engineering and has
participated in sales, manufacturing engineering and research of products or
services involving the engineering and research of products or services
involving the engineering thermoplastics and is desirous of protecting its trade
secrets, its production processes and its trade relationships and,
WHEREAS LexaLite is, contemporaneously with the execution of this
agreement, entering into a stock transaction whereby it will become a wholly-
owned subsidiary of SUMMA (the "Merger") and Barnes expects to receive
substantial consideration, rights and benefits as a consequence of that
transaction,
NOW, THEREFORE, for good and valuable consideration recited herein in which
LexaLite is the payer and Barnes is the payee, the adequacy of which is hereby
acknowledged, LexaLite and Barnes agree as follows:
1. The "Payment Date" for the following purpose, shall be the later date
of: 1) termination of employment or re-employment by LexaLite; or 2) termination
of a Consulting Agreement between LexaLite and Business Activities Corporation,
if one exists, and if it is not replaced by a continuing agreement or re-
employment.
2. For a period of not less than five (5) years from said Payment Date
hereof, LexaLite agrees to pay to Barnes an amount equal to $15,000 per quarter.
3. For the period of time starting with the date first stated and
continuing for five (5) years after the Payment Date, Barnes agrees that he
shall not directly or indirectly own, manage, operate, control or participate in
ownership, management, operation or control of or be connected as an officer,
employee, partner, director, shareholder, advisor or otherwise have any
financial interest in, or aid or assist financially or otherwise, anyone else in
the conduct of any business operations competitive to any such operations
heretofore, or hereafter to be, conducted by LexaLite.
4. This Covenant is not restricted geographically, but shall be applicable
on a worldwide basis. This covenant specifically includes all customers of
LexaLite.
5. In recognition of difficulty in determining damages or violation of
this Covenant, LexaLite shall be entitled to injunctive relief for the
violation or threatened violation hereof, in addition to such other relief as
may be available to it at law, in equity, or under this Covenant.
6. If any provision hereunder shall be deemed to be contrary to law, such
a provision shall be modified to the slightest extent possible to render same
not contrary to law, and such provision, as so modified, shall constitute a part
of this Covenant.
7. The obligations of Barnes under this Covenant shall be absolute and
unconditional, without regard to the liability of any other person or entity.
8. This Covenant and the obligations of Barnes and LexaLite hereunder
shall be governed by the laws of the State of Michigan, where this Covenant has
been executed and delivered for value.
9. Barnes acknowledges and consents to the in personam jurisdiction and
venue of the Federal and State courts within the State of Michigan for purpose
of the enforcement of any provision of this Covenant. Barnes agrees that any
suit hereunder may be brought in the Court for the Western District of Michigan,
and that Barnes will not raise and hereby waives any objection that Barnes may
or could have to either jurisdiction or venue therein.
10. The obligations of Barnes under this Covenant shall inure to the
benefit of the successors and assigns, in law or in fact, of LexaLite. The
obligations for any payments required by this Covenant shall also be obligations
of the successors and assigns, in law or in fact, of LexaLite.
11. This agreement supersedes that certain Covenant-Not-To-Compete
Agreement dated September 17, 1993 and any other Covenant-Not-To-Compete
Agreement between Barnes and LexaLite, and shall become effective immediately
upon, and only upon, the consummation of the Merger.
IN WITNESS WHEREOF, Barnes and LexaLite have acknowledged and delivered
this Covenant on the date first above written.
WITNESSES:
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Josh T. Barnes
LEXALITE INTERNATIONAL CORPORATION
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by Thomas M. Phillips, President
SUMMA INDUSTRIES
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by James R. Swartwout, President