NONCOMPETITION AGREEMENT
NONCOMPETITION AGREEMENT
This Noncompetition Agreement (this "Agreement") is made as of February
27, 1998, by and between Henry Company, a California corporation("Henry"),
and James F. C. Stewart ("Executive") a Principal Executive and Shareholder
of Monsey Products Co., a Pennsylvania corporation (Monsey Products Co.,
together with its subsidiaries, the "Company").
The parties, intending to be legally bound, agree as follows:
ARTICLE 1.
ACKNOWLEDGMENTS BY EXECUTIVE
Executive acknowledges that (a) Executive has occupied a position of
trust and confidence with the Company prior to the date hereof, is highly
knowledgeable with respect to the business of the Company, and has become
familiar with the following, any and all of which constitute confidential
information of the Company, (collectively the "Confidential Information"):
(i) any and all trade secrets concerning the business and affairs of the
Company, product specifications, data, know-how, formulae, compositions,
processes, designs, sketches, photographs, graphs, drawings, samples,
inventions and ideas, past, current and planned research and development,
current and planned manufacturing and distribution methods and processes,
customer lists, current and anticipated customer requirements, price lists,
market studies, business plans, computer software and programs (including
object code and source code), computer software and database technologies,
systems, structures and architectures (and related processes, formulae,
compositions, improvements, devices, know-how, inventions, discoveries,
concepts, ideas, designs, methods and information, of the Company and any
other information, however documented, of the Company that may constitute a
trade secret unde applicable; (ii) any and all information concerning the
business and affairs of the Company (including historical financial
statements, financial projections and budgets, historical and projected
sales, capital spending budgets and plans, the names and backgrounds of key
personnel, personnel training and techniques and materials, however
documented; and (iii) any and all notes, analysis, studies and other material
prepared by or for the Company containing or based, in whole or in part, on
any information included in the foregoing; (b) the business of the Company is
international in scope; (c) its products and services are marketed throughout
the United States and Canada; (d) the Company competes with other businesses
that are or could be located in any part of the United States or Canada; (e)
the provisions of Sections 2 and 3 of this Agreement are reasonable and
necessary to protect and preserve the Company' business, and (g) the Company
would be irreparably damaged if Executive were to breach the covenants set
forth in Sections 2 and 3 of this Agreement.
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ARTICLE 2.
CONFIDENTIAL INFORMATION
Executive acknowledges and agrees that all Confidential Information
known or obtained by Executive, whether before or after the date hereof, is
the property of the Company. Therefore, Executive agrees that Executive will
not, at any time, disclose to any unauthorized Persons or use for his own
account or for the benefit of any third party any Confidential Information,
whether Executive has such information in Executives' memory or embodied in
writing or other physical form, without Henry's written consent, unless and
to the extent that the Confidential Information is or becomes generally known
to and available for use by the public other than as a result of Executives'
fault or the fault of any other Person bound by a duty of confidentiality to
Henry or the Company.
ARTICLE 3.
NONCOMPETITION
For the consideration to be under this Agreement, Executive agrees that:
(1) For a period of ten (10) years from the date hereon (the "Period");
(a) Executive will not, directly or indirectly, engage or invest
in, own, manage, operate, finance, control, or participate in the ownership,
management, operation, financing, or control of, be employed by, associated
with, or in any manner connected with, lend Executives' name or any similar
name to, or render services or advice to, any business whose products or
activities compete in whole or in part with the products or activities of the
Company, which business is the manufacture and sale of building envelope
systems and related products, modified bitumen (roofing and building
materials and compounds), industrial emulsions, roof and driveway coatings
and cement, and paving sealers, provided, however, that Executive may
purchase or otherwise acquire up to (but not more than) five percent (5%) of
any class of securities of any enterprise (but without otherwise
participating in the activities of such enterprise) if such securities are
listed on any national or regional securities exchange or have been
registered under Section 12(g) of the Securities Exchange Act of 1934.
Executive agrees that this covenant is reasonable with respect to its
duration, geographical area, and scope.
(b) Executive will not, directly or indirectly, either for himself
or any other Person, (A) induce or attempt to induce any employee of the
Company or the Company's parent entity to leave the employ of such company,
(B) in any way interfere with the relationship between the Company or the
Company's parent entity and any employee of the Company or the
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Company's parent entity, (C) employ, or otherwise engage as an employee,
independent contractor, or otherwise, any employee of the Company or the
Company's parent entity, or (D) induce or attempt to induce any customer,
supplier, licensee, or business relation of the Company or the Company's
parent entity to cease doing business with such company, or in any way
interfere with the relationship between any customer, supplier, licensee, or
business relation of any such company.
(c) Executive will not, directly or indirectly, either for himself
or any other Person, solicit the business of any Person known to Executive to
be a customer of the Company or the Company's parent entity, whether or not
Executive had personal contact with such Person;
(2) If Executive breaches any covenant set forth in Subsection 3(1) of
this Agreement, the term of such covenant will be extended by the period of
the duration of such breach;
(3) Executive will not, at any time during or after the Period,
disparage Henry, the Company or the Company's parent entity, or any of their
shareholders, directors, officers, employees, or agents; and
ARTICLE 4.
COMPENSATION
As consideration for the covenants in Section 3 of this Agreement, the
Company will pay Executive the sum of $1,184,000 on the date hereof.
ARTICLE 5.
REMEDIES
If Executive breaches the covenants set forth in Sections 2 or 3 of this
Agreement, Henry and the Company will be entitled to the following remedies:
(1) Damages from Executive;
(2) In addition to its right to damages and any other rights it may
have, to obtain injunctive or other equitable relief to restrain any breach
or threatened breach or otherwise to specifically enforce the provisions of
Sections 2 and 3 of this Agreement, it being agreed that money damages alone
would be inadequate to compensate Henry or the Company and would be an
inadequate remedy for such breach.
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(3) The rights and remedies of the parties to this Agreement are
cumulative and not alternative.
ARTICLE 6.
SUCCESSORS AND ASSIGNS
This Agreement will be binding upon Henry and Executive and will inure
to the benefit of Henry and the Company and its affiliates, successors and
assigns and Executive and Executives' assigns, heirs and legal
representatives.
ARTICLE 7.
WAIVER
The rights and remedies of the parties to this Agreement are cumulative
and not alternative. Neither the failure nor any delay by any party in
exercising any right, power, or privilege under this Agreement will operate
as a waiver of such right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege will preclude any other or
further exercise of such right, power, or privilege or the exercise of any
other right, power, or privilege. To the maximum extent permitted by
applicable law, (a) no claim or right arising out of this Agreement can be
discharged by one party, in whole or in part, by a waiver or renunciation of
the claim or right unless in writing signed by the other party; (b) no waiver
that may be given by a party will be applicable except in the specific
instance for which it is given; and (c) no notice to or demand on one party
will be deemed to be a waiver of any obligation of such party or of the right
of the party giving such notice or demand to take further action without
notice or demand as provided in this Agreement.
ARTICLE 8.
GOVERNING LAW
This Agreement will be governed by the laws of the State of Delaware
without regard to conflicts of laws principles.
ARTICLE 9.
JURISDICTION; SERVICE OF PROCESS
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Any action or proceeding seeking to enforce any provision of, or based
on any right arising out of, this Agreement shall be brought against any of
the parties in the federal and state courts of the State of Delaware, each of
the parties consents to the jurisdiction of such courts (and of the
appropriate appellate courts) in any such action or proceeding and waives any
objection to venue laid therein. Process in any action or proceeding referred
to in the preceding sentence may be served on any party anywhere in the world.
ARTICLE 10.
SEVERABILITY
Whenever possible each provision and term of this Agreement will be
interpreted in a manner to be effective and valid but if any provision or
term of this Agreement is held to be prohibited by or invalid, then such
provision or term will be ineffective only to the extent of such prohibition
or invalidity, without invalidating or affecting in any manner whatsoever the
remainder of such provision or term or the remaining provisions or terms of
this Agreement. If any of the covenants set forth in Section 3 of this
Agreement are held to be unreasonable, arbitrary, or against public policy,
such covenants will be considered divisible with respect to scope, time, and
geographic area, and in such lesser scope, time and geographic area, will be
effective, binding and enforceable against Executive.
ARTICLE 11.
COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of
which, when taken together, will be deemed to constitute one and the same
agreement.
ARTICLE 12.
SECTION HEADINGS, CONSTRUCTION
The headings of Sections in this Agreement are provided for convenience
only and will not affect its construction or interpretation. All references
to "Section" or "Sections" refer to the corresponding Section or Sections of
this Agreement unless otherwise specified. All words used in this Agreement
will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms.
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ARTICLE 13.
NOTICES
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when
(a) delivered by hand (with written confirmation of receipt), (b) sent by
facsimile (with written confirmation of receipt), provided that a copy is
mailed by registered mail, return receipt requested, or (c) when received by
the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as
a party may designate by notice to the other parties):
Executive: James Stewart
929 Crozier Court
Mississauga, Ontario, Canada L5H 2T2
Facsimile No.: 905/278-0486
Henry: Henry Group of Companies
2911 Slauson Avenue
Huntington Park, California 90255
Attention: Warner Henry
Facsimile No.: 213/583-8582\
ARTICLE 14.
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter of this Agreement and supersede all prior
written and oral agreements and understandings between Henry and Executive
with respect to the subject matter of this
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Agreement. This Agreement may not be amended except by a written agreement
executed by the party to be charged with the amendment.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
HENRY COMPANY Executive:
/s/ Richard B. Gordinier /s/ James Stewart
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By: Richard B. Gordinier
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________________________
JAMES F. C. STEWART
Its: President
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