NONCOMPETITION AGREEMENT
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THIS NONCOMPETITION AGREEMENT (this "Agreement") is made and entered into
as of the 11th day of June, 2001 by and among Acirca, Inc., a Delaware
corporation (the "Company"), Spectrum Organic Products, Inc., a California
corporation (the "Seller"), Jethren Phillips, a resident of California
("Phillips"), and John Battendieri, a resident of California ("Battendieri", and
together with Phillips, the "Shareholders").
WITNESSETH:
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WHEREAS, pursuant to the Asset Purchase Agreement, dated as of June, 2001,
by and among the Company and the Seller (the "Asset Purchase Agreement"), the
Seller will sell to the Company, and the Company will purchase from the Seller,
substantially all of Seller's assets that are used in the conduct of the
Business (as defined therein);
WHEREAS, the Seller conducts the Business within the Area (as defined
herein);
WHEREAS, Phillips owns seventy percent (70%) of the issued and outstanding
shares of capital stock of the Seller and will benefit materially and
significantly from the transactions contemplated by the Asset Purchase Agreement
(the "Transactions");
WHEREAS, Battendieri owns nine percent (9%) of the issued and outstanding
shares of capital stock of the Seller and will benefit materially and
significantly from the Transactions;
WHEREAS, the Seller and each of the Shareholders possesses significant
information and experience with regard to the Business, and the Company desires
to protect its investment in the Business upon Closing (as defined herein); and
WHEREAS, as a condition precedent to the Company's obligations to
consummate the Transactions, the Company has required the execution and delivery
of this Agreement by the Seller and each of the Shareholders.
NOW THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Definitions.
(a) "Affiliate" has the meaning given to it in the Asset Purchase
Agreement.
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(b) "Area" means Petaluma, California, the adjacent cities and counties
in California, the rest of the State of California, the states contiguous
thereto, and each other state in the United States.
(c) "Business" means the tomato-based, organic foods business of Seller
as conducted on the date hereof and in the twelve prior months, including but
not limited to the production, promotion, marketing and sale of the Products (as
defined herein).
(d) "Closing" has the meaning given to it in the Asset Purchase
Agreement.
(e) "Commencement Date" means the date of this Agreement.
(f) "Investment", in any Person, means any direct or indirect advance,
loan or other extension of credit, including by way of guaranty or capital
contribution to (by means of any transfer of cash or other property to others or
any payment for property or services for the account or use of others), or any
purchase or acquisition of capital stock, bonds, notes, debentures or other
similar instruments issued by, such Person.
(g) "Person" has the meaning given to it in the Asset Purchase
Agreement.
(h) "Products" means Seller's tomato-based pasta sauces, salsa, gravies
and dipping sauces and the like sold under the brand names Millina's Finest,
Garden Valley Organic, Frutti de Bosco, Bella Toscana, Kid's Meals and Parrot
and other private label brand names, all as listed on Exhibit A to the Asset
Purchase Agreement; provided, however, in no event shall Products include canned
tomatoes, barbecue sauce, cocktail sauce or ketchup.
(i) "Purchased Assets" has the meaning given to it in the Asset
Purchase Agreement.
(j) "Restriction Period" shall mean a period of three (3) years
commencing on the date hereof.
2. Payment; Acknowledgement. Pursuant to the Asset Purchase Agreement, and
in consideration for the Seller's and each Shareholder's covenant in Section 4
hereunder, the Seller will be paid the Purchase Price (as defined in the Asset
Purchase Agreement) by the Company, subject to certain adjustments. Further,
each of the Shareholders hereby represents that he or she (as applicable) is the
beneficial owner of certain issued and outstanding shares of capital stock of
the Seller. The Seller and each of the Shareholders acknowledge and agree that
it, he or she (as applicable) will benefit materially and significantly from the
Transactions.
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3. Term; Termination. This Agreement shall become effective on the
Commencement Date and shall remain in effect until the third (3rd) anniversary
date hereof, unless modified by the parties hereto pursuant to Section 10
herein.
4. Covenant Not to Compete and Not to Solicit; Confidentiality.
(a) Each of the Seller and the Shareholders covenants and agrees that
it, he or she (as applicable) shall not, during the Restriction Period, except
with the express prior written consent of the Company, directly or indirectly,
whether through itself, individually or through an Affiliate thereof, whether in
partnership, jointly or in conjunction with any person, firm, partnership,
limited liability company, corporation, or unincorporated association of any
kind, whether as employee, owner, partner, principal, agent, director, officer,
consultant or shareholder (except as the holder of not more than five percent
(5%) of the outstanding shares of a corporation whose stock is listed on any
national or regional securities exchange or reported by the Nasdaq Stock Market
or any successor thereto) (each, a "Prohibited Association"), do any of the
following: (i) engage in or propose to engage in the Business within the Area;
(ii) make or maintain any Investment in any Person that engages in the Business
or portion thereof, or proposes to engage in the Business or portion thereof,
within the Area; (iii) establish or maintain a Prohibited Association with any
Person that engages in the Business or portion thereof, or proposes to engage in
the Business or portion thereof, within the Area; (iv) act as sales agent for
distribution for any Person that engages in the Business or portion thereof, or
proposes to engage in the Business or portion thereof, within the Area; or (v)
act as contractor for product development or research for any Person that
engages in the Business or portion thereof, or proposes to engage in the
Business or portion thereof, within the Area.
(b) Without limiting the generality of the foregoing clause, each of
the Seller and the Shareholders further covenants and agrees that it, he or she
(as applicable) shall not, during the Restriction Period, in each case with
respect to the Business as conducted by the Company or any of its Affiliates,
directly or indirectly, disparage or otherwise make any adverse comment
concerning the Company or any portion of the Business.
(c) Each of the Shareholders agrees that he or she (as applicable)
shall be bound by and subject to the terms, conditions and obligations of
Section 4.6 of the Asset Purchase Agreement as if such Shareholder were the
"Seller".
(d) Each of the Seller and the Shareholders acknowledges that it, he or
she (as applicable) has no right to use any of the Purchased Assets.
5. Acknowledgments; Injunctive Relief. Each of the Seller and the
Shareholders acknowledges and agrees that, given the nature of the relationship
of the parties and the highly competitive nature of the organic food business,
(i) its, his or her (as applicable) violation of this Agreement would cause the
Company and its Affiliates to suffer irreparable damage and (ii) the character,
periods and geographical areas and the scope of restrictions on its, his or her
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(as applicable) activities as set forth in this Agreement are fair and
reasonably required for the protection of the Company and its Affiliates.
Therefore, in addition to any other remedies which the Company and its
affiliates may have under this Agreement or otherwise, the Company and each of
its Affiliates shall be entitled to apply to any court of competent jurisdiction
for an injunction restraining each of the Seller and the Shareholders (as
applicable) from committing or continuing any violation of Section 4 of this
Agreement, and each of the Seller and the Shareholders shall not object to such
application except to litigate whether, in fact, it, he or she (as applicable)
has violated Section 4 of this Agreement.
6. Notice. For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Seller:
Spectrum Organic Products, Inc.
1304 South Point Boulevard
Suite 280
Petaluma, CA 94954
Attention:
Fax: (707) 765-8736
with a copy to:
Cooley Godward LLP
One Maritime Plaza, 20th Floor
San Francisco, CA 94111
Attn: Susan Cooper Philpot
Fax: (415) 951-3699
If to Phillips:
Jethren Phillips
1605 Washington Road
Santa Rosa, CA 95404
Fax: (707) 585-0881
with a copy to:
Spectrum Organic Products
133 Copeland Street
Petaluma, CA 94952
Attn: Chief Financial Officer
Fax: (707) 765-8747
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If to Battendieri:
John Battendieri
600 Olive Springs Road
Sequel, CA 95073
Fax: (831) 476-5218
with a copy to:
Spectrum Organic Products
133 Copeland Street
Petaluma, CA 94952
Attn: Chief Financial Officer
Fax: (707) 765-8747
If to the Company:
Acirca, Inc.
4350 North Fairfax Drive
Suite 350
Arlington, VA 22203
Attn: Olivier Sonnois, VP-Strategy & Business Development
Fax: (703) 312-4801
with a copy to:
Arnold & Porter
555 Twelfth Street, N.W.
Washington, D.C. 20004
Attn: Neil Goodman
Fax: (202) 942-5999
or to such other address as such party may have furnished to the other parties
in writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt. Each of the parties shall promptly notify
the Company in writing, in accordance herewith, of any change of address during
the Restriction Period.
7. Invalid or Unenforceable Provisions. In the event that any part of this
Agreement shall be held to be unenforceable or invalid, the remaining parts
thereof shall nevertheless continue to be valid and enforceable as though the
invalid portions were not a part hereof. In the event that any of the provisions
of this Agreement relating to the character, period or geographic scope of
restriction shall be deemed to exceed the character of restriction, period of
time or geographic scope which a court of competent jurisdiction deem
enforceable, the character of the restriction, period of time and geographic
scope shall, for purposes of this Agreement, be deemed to be the character of
the restriction and maximum time period and geographic scope which a court of
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competent jurisdiction would deem valid and enforceable in any state in which
such court of competent jurisdiction shall be convened. For the purposes of this
Section 7, the parties hereto agree that the covenants contained in Section 4
shall each be construed as a series of separate covenants, one for each
geographic subdivision which comprises the Area and, except for geographic
coverage, each separate covenant shall be deemed identical.
8. Benefit and Burden. This Agreement shall inure to the benefit of, and
shall be binding upon, the parties hereto and their respective legatees,
distributees, estates, executors, administrators, personal representatives,
heirs, successors and assigns, and other legal representatives. The Company and
each of its Affiliates are intended beneficiaries of the covenants contained in
Section 4 of this Agreement.
9. Indemnification. Each of the Seller and the Shareholders agrees to save
and hold the Company and its affiliates harmless from and against any claim,
loss or damage whatsoever (including reasonable attorneys' fees and other costs
of enforcement of this Agreement) arising out of a final, nonappealable
determination by a court of competent jurisdiction that the it, he or she (as
applicable) has committed a breach of its, his or her obligations under this
Agreement. The foregoing shall be in addition to, and not in limitation of, any
rights the Company and its Affiliates may have against the other parties arising
out of or in connection with this Agreement and the Asset Purchase Agreement.
10. Modifications. No change or modification of this Agreement shall be
valid unless the same is in writing and signed by all the parties hereto. No
waiver of any provision of this Agreement shall be valid unless in writing and
signed by the party against whom it is sought to be enforced. The failure of a
party at any time to insist upon strict performance of any condition, promise,
agreement or understanding set forth herein shall not be construed as a waiver
or relinquishment of the right to insist upon strict performance of the same or
other conditions, promises, agreements or understandings at a future time.
11. Entire Agreement. This Agreement, together with the Asset Purchase
Agreement and any other agreements entered into in connection therewith
(collectively the "Acquisition Agreements"), contain all of the promises,
agreements, conditions, understandings, warranties and representations between
the parties hereto with respect to the subject matter hereof, and there are no
promises, agreements, conditions, understandings, warranties or representations,
oral or written, express or implied, between them with respect to such matters
other than as set forth herein or therein. Any and all prior agreements between
the parties hereto with respect to such matters are hereby revoked and are
deemed null and void. The Acquisition Agreements are, and are intended by the
parties to be, an integration of any, and all prior agreements or
understandings, oral or written, with respect to the subject matter hereof.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to the conflicts rules thereof to the extent such conflicts rules would
require the application of the law of another jurisdiction.
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13. Forum Selection And Consent to Jurisdiction. Any legal action or
proceeding with respect to this Agreement may be brought in the courts of New
York, New York or any United States Federal Court sitting in New York, New York,
and, by the execution and delivery of this Agreement, each party hereto hereby
irrevocably accepts for itself and in respect of any of its property, generally
and unconditionally, the jurisdiction of the aforesaid courts. Each party hereto
further irrevocably consents to the service of process from any of the
aforementioned courts in any such action or proceeding by hand delivery or by
registered or certified mail, postage prepaid, to such party, as the case may
be, at the addresses described in Section 6 of this Agreement, such service to
become effective upon hand delivery or ten (10) days after such mailing. Each
party hereto hereby irrevocably waives to the fullest extent it may effectively
do so, any objection it may have to venue and the defense of an inconvenient
forum to the maintenance of such actions or proceedings.
14. Headings. The headings and other captions in this Agreement are for
convenience and reference only and shall not be used in interpreting, construing
or enforcing any of the provisions of this Agreement.
15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which, taken
together, shall constitute one and the same instrument. Any such counterpart may
be executed by facsimile signature with only verbal confirmation, and when so
executed and delivered shall be deemed an original and such counterparts
together shall constitute only one original.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the Company and the Seller has caused this
Agreement to be executed on their behalf and each of the Shareholders has
hereunto set his or her hand the day and year first above written.
/s/ JETHREN PHILLIPS
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JETHREN PHILLIPS
/s/ JOHN BATTENDIERI
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JOHN BATTENDIERI
SPECTRUM ORGANIC PRODUCTS, INC.
By: /s/ Jethren Phillips
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Jethren Phillips, CEO and
Chairman of the Board
ACIRCA, INC.
By: /s/ William Urich
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William Urich
Chief Financial Officer
and Secretary