Exhibit 10.22
EXECUTION COPY
NONCOMPETITION
AGREEMENT
AGREEMENT, made as of the 6th day of
February, 2006, by and between Pregis Holding I Corporation, a
Delaware corporation (the “ Company ”) and
Vincent P. Langone (“ Covenantor ”) (the “
Agreement ”).
W I T N E S S E T
H:
WHEREAS , Covenantor, by reason of his intimate
involvement in the operations and management of the business of the
Company, will acquire knowledge and expertise relating to the
business and operations of the Company; and
WHEREAS , Covenantor acknowledges that the Company would
not (i) enter into the two Nonqualified Stock Option
Agreements, each dated as of February 6, 2006, between
Covenantor and the Company (the “ Option Agreements
”), or grant the options thereunder, or (ii) enter into
the Employment Agreement, dated as of the date hereof, by and among
the Company and its wholly owned subsidiaries, Pregis Holding II
Corporation, a Delaware corporation, and Pregis Corporation, a
Delaware corporation, and Covenantor (the “ Employment
Agreement ”), unless Covenantor executes and delivers
this Agreement, and wishes to forego his right to compete with the
Company and its subsidiaries with respect to the business of the
Company and its subsidiaries.
NOW, THEREFORE
, in order to induce the Company to
enter into the Option Agreements with Covenantor and to grant the
options thereunder, and to enter into the Employment Agreement, and
in consideration of the premises and of the mutual covenants and
agreements contained herein and in the Option Agreements and the
Employment Agreement, the parties hereto, intending legally to be
bound, hereby agree as follows:
1. Noncompetition;
Nonsolicitation .
(a) Subject to the provisions of
Paragraph 1(c), provided that the Company has not materially
breached its obligations under the Employment Agreement or Option
Agreements, from and after the date hereof and until eighteen
(18) months following the date of Covenantor’s
termination of employment from the Company, Covenantor shall not,
without the prior written consent of the Company:
(i) directly or indirectly, as a
sole proprietor, member of a partnership, stockholder, investor,
officer or director of a corporation or other business organization
or entity, or as an employee, associate, consultant or agent of any
person, partnership, corporation or other business organization or
entity, render any service to (including the making of investments
in or otherwise providing capital to) any competitor (or any person
or entity that is reasonably anticipated to become a competitor
within the term hereof) of the Company or its subsidiaries, within
the geographic areas described in Paragraph 1(b); it being
understood that such a person, partnership, corporation or other
business organization or entity is in competition with the Company
or its subsidiaries if it is then engaging or planning to engage
within the term hereof, itself or through any joint venture,
partnership or otherwise, in any business in which
(A) the
Company or its subsidiaries
(1) have been engaged prior to the date hereof or (2) are
presently engaged at the date hereof, or (B) the Company or
its subsidiaries are engaged or have taken steps in preparation to
engage during the term hereof;
(ii) induce or attempt to induce any
person or entity which is or was a customer or client of the
Company or its subsidiaries, or becomes a customer or client of the
Company or its subsidiaries, to terminate its relationship or
otherwise cease doing business in whole or in part with the Company
or its subsidiaries;
(iii) solicit, entice, induce or
hire any person who is an employee, or becomes an employee, of the
Company or its subsidiaries to become employed by any other person,
firm or corporation or to leave his or her employment with the
Company or its subsidiaries, or approach any such employee for such
purpose or authorize or knowingly approve the taking of such
actions by any other person; or
(iv) interfere with any relationship
between the Company or its subsidiaries and any of its or their
customers or clients so as to cause harm to the Company or its
subsidiaries.
(b) The restrictions contained in
Paragraph 1(a) shall apply in the specific geographic areas and
customer markets within such geographic areas served by the Company
or its subsidiaries at any time during the term hereof.
(c) Nothing in this Paragraph 1
shall prohibit Covenantor from (i) obtaining employment in the
protective packaging industry so long as Covenantor does not
violate the terms of this Agreement, (ii) being involved in
any capacity in any business that is not in competition with the
Company or its subsidiaries, or (iii) investing in the
securities of any corporation having securities listed on a
national securities exchange, provided that such investment does
not exceed 2% of any class of securities of any corporation engaged
in business in competition with the Company or its subsidiaries or
affiliates, and provided that such investment represents a passive
investment and that neither Covenantor nor any group of persons
including him, in any way, either directly or indirectly, manages
or exercises control of any such corporation, guarantees any of its
financial obligations or otherwise takes any part in its business,
other than exercising his rights as a shareholder, or seeks to do
any of the foregoing.
2. Non-Disclosure of
Confidential Information . Covenantor agrees that on and
after the date of this Agreement he shall not, without the prior
written consent of the Company, use for himself or others, or
divulge, disclose or make accessible to any other person, firm,
partnership, corporation or other entity, any Confidential
Information (as defined below) pertaining to the business of the
Company or its subsidiaries or affiliates, except when required to
do so by a court of competent jurisdiction, by any governmental
agency having supervisory authority over the business of the
Company, or by any administrative body or legislative body
(including a committee thereof) with jurisdiction to order
Covenantor to divulge, disclose or make accessible such
information. All Confidential Information in Covenantor’s
possession shall be returned to the Company promptly following the
date of termination of Covenantor’s employment with the
Company. The term “ Confidential Information ”
shall mean non-public information concerning the Company or its
subsidiaries or affiliates, including, but not limited
2
to, financial data, strategic business plans,
product development or other proprietary product data, customer
lists, consulting or licensing agreements, vendor lists, lists of
potential customers, pricing and credit techniques, private
processes, marketing plans, reports, summaries, analyses or other
proprietary information now or hereafter in the possession of
Covenantor, except for specific items which have become publicly
available information (other than such items which Covenantor knows
have become publicly available through a breach of fiduciary duty
or any confidentiality agreement).
3. Inventions .
Covenantor shall promptly, and in any event no later than one
(1) year after termination of his employment with the Company,
with respect to Inventions (as defined below) made or conceived by
Covenantor during his employment with the Company, either solely or
jointly with others, if based on or related to or connected with
the business of the Company or its subsidiaries or affiliates or if
the Company’s time, material, facilities or other employees
of the Company contributed thereto:
(a) Fully inform the Company in
writing of such Inventions;
(b) Assign, and Covenantor does
hereby assign, to the Company all of Covenantor’s rights to
such Inventions, if any, and to applications for letters patent and
to letters patent granted upon such Inventions; and
(c) Acknowledge and deliver to the
Company (without charge to Covenantor but at the expense of the
Company) such written instruments and do such other acts as may be
reasonably necessary to obtain and maintain letters patent and to
vest the entire right and title thereto in the Company or its
subsidiaries or affiliates.
All Inventions, regardless of
whether or not they are considered “works for hire,”
shall for all purposes be regarded as acquired and held by
Covenantor for the benefit, and shall be the sole and exclusive
property, of the Company. The term “Inventions”
shall mean discoveries, developments, improvements or inventions
(whether patentable or not) related to the business of the Company
or its subsidiaries or affiliates.
4. Remedy for Certain
Breaches .
(a) Covenantor acknowledges and
agrees that the restrictions on his activities under the provisions
of Paragraphs 1, 2 and 3 are required for the reasonable protection
of the Company. Covenantor further acknowledges and agrees that a
breach of any of those obligations will result in irreparable harm
to the Company, for which there would be no adequate remedy at law,
and therefore, Covenantor irrevocably and unconditionally
(i) agrees that in addition to any other remedies which the
Company may have under this Agreement or otherwise, all of which
remedies shall be cumulative, the Company shall be entitled to
apply to any court of competent jurisdiction for preliminary and
permanent injunctive relief and other equitable relief, without the
necessity of proving actual damage, restraining Covenantor from
doing or continuing to do or perform any acts constituting such
breach or threatened breach, (ii) agrees that such relief and
any other claim by the Company pursuant hereto may be brought in
the United States District Court for the Southern District of New
York, or if such court does not have subject matter jurisdiction or
will not accept jurisdiction, in any court of general jurisdiction
in the State of New
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York, (iii) consents to the
non-exclusive jurisdiction of any such court in any such suit,
action or proceeding, and (iv) waives any objection which
Covenantor may have to the laying of venue of any such suit, action
or proceeding in any such court.
(b) Covenantor agrees that the
existence of any claim or cause of action by Covenantor against the
Company, whether predicated on this Agreement or otherwise, shall
not constitute a defense to the enforcement by the Company of the
provisions of this Agreement.
5. Nature of
Restrictions . Covenantor has carefully considered the
nature and extent of the restrictions upon him and the rights and
remedies conferred upon the Company under this Agreement, and
hereby acknowledges and agrees that the same are reasonable in time
and territory, are designed to eliminate competition which
otherwise would be unfair to the Company, do not stifle the
inherent skill and experience of Covenantor, would not operate as a
bar to Covenantor’s sole means of support, are fully required
to protect the legitimate interests of the Company and do not
confer a benefit upon the Company disproportionate to the detriment
to Covenantor.
6. Warranties .
Covenantor warrants and represents that he has full power and
authority to enter into this Agreement for and on behalf of himself
and that such act, and the performance of his obligations
hereunder, will not conflict with any other agreements or
undertakings to which he is a party or by which he is
bound.
7. Notices . All
notices, requests, consents and demands by the parties hereto shall
be delivered by hand, by confirmed facsimile transmission, by
recognized national overnight courier service or by deposit in the
United States mail, postage prepaid, by registered or certified
mail, return receipt requested, addressed to the party to be
notified at the addresses set forth below:
If to Covenantor, to the address
identified opposite Covenantor’s name on the signature page
attached hereto.
If to the Company:
c/o AEA Investors LLC
Park Avenue Tower
65 East 55 th Street
New York, NY 10022
Attn: Sanford Krieger
Facsimile:
(212) 702-0518
With a copy to:
Fried, Frank, Harris, Shriver and
Jacobson LLP
One New York Plaza
New York, NY 10004
Attn: Christopher Ewan
Facsimile:
(212) 859-4000
4
Notices shall be effective immediately upon
personal delivery or facsimile transmission,
one (1) business day after deposit with an overnight
courier service or three (3) business days after the date of
mailing thereof. Other notices shall be deemed given on the date of
receipt. Either party hereto may change the address specified
herein by written notice to the other party hereto.
8. Entire Agreement .
This Agreement cancels and supersedes any and all prior agreements
and understandings between the parties hereto with respect to the
subject matter hereof other than under and pursuant to the Option
Agreements, the Employment Agreement and the Subscription
Agreement, dated as of the date hereof, between Covenantor and the
Company. This Agreement, the Option Agreements, the Employment
Agreement and the Subscription Agreement constitute the entire
agreement between the parties with respect to the matters herein
provided, and no modification or waiver of any provision hereof
shall be effective unless in writing and signed by the Company and
Covenantor.
9. Binding Effect .
All of the terms and provisions of this Agreement shall be binding
upon the parties hereto and its or his heirs, executors,
administrators, legal representatives, successors and assigns, and
inure to the benefit of and be enforceable by the Company and its
successors and assigns, except that the duties and responsibilities
of Covenantor hereunder are of a personal nature and shall not be
assignable or delegable in whole or in part.
10. Reformation of Agreement;
Severability . In the event that any of the provisions of
Paragraphs 1, 2 and 3 shall be found by a court of competent
jurisdiction to be invalid or unenforceable to any extent for any
reason, such court shall exercise its discretion in reforming such
provision(s) to the end that Covenantor shall be subject to
nondisclosure, nonsolicitation and noncompetition covenants that
are reasonable under the circumstances and enforceable by the
Company. In the event that any other provision of this Agreement or
application thereof to anyone or under any circumstance is found to
be invalid or unenforceable in any jurisdiction to any extent for
any reason, such invalidity or unenforceability shall not affect
any other provision or application of this Agreement which can be
given effect without the invalid or unenforceable provision or
application and shall not invalidate or render unenforceable such
provision or application in any other jurisdiction.
11. Remedies; Waiver .
No remedy conferred upon the Company by this Agreement is intended
to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to any other remedy
given hereunder or now or hereafter existing at law or in equity.
No delay or omission by the Company in exercising any right, remedy
or power hereunder or existing at law or in equity shall be
construed as a waiver thereof, and any such right, remedy or power
may be exercised by the party possessing the same from time to time
and as often as may be deemed expedient or necessary by such party
in its sole discretion.
12. Counterparts .
This Agreement may be executed in several counterparts, each of
which is an original and all of which shall constitute one
instrument. It shall not be necessary in making proof of this
Agreement or any counterpart hereof to produce or account for any
of the other counterparts.
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13. Governing Law .
The validity, interpretation, construction, performance and
enforcement of this Agreement shall be governed by the laws of the
State of New York, without application of conflict of laws
principles.
14. Headings . The
captions and headings contained in this Agreement are for
convenience only and shall not be construed as a part of the
Agreement.
[signature page follows]
6
IN WITNESS WHEREOF, the parties have
executed this Agreement as of the date and year first above
written.
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PREGIS HOLDING
I CORPORATION
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By:
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/s/ Thomas J. Pryma
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Name:
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Thomas J. Pryma
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Title:
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Vice President
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COVENANTOR:
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Address:
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/s/ Vincent P. Langone
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62 Philhower Road
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Vincent P. Langone
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Lebanon, NJ 08833
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with a copy to:
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Torys LLP
237 Park Avenue
New York, NY 10017
Attn: Bradley P. Cost
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E XECUTION C OPY
NONCOMPETITION
AGREEMENT
AGREEMENT, made as of the 30
th
day of November, 2005
by and among Pregis Holding I Corporation, a Delaware corporation
(the “ Company ”), and James D. Morris (the
“ Covenantor ”) (the “ Agreement
”).
W I T N E S S E T
H:
WHEREAS , pursuant to that certain Separation and
Consulting Agreement dated as of the date hereof by and among the
Covenantor, the Company and the other parties thereto (the “
Separation Agreement ”), the Companies (as such term
is defined in the Separation Agreement) agreed to retain the
Covenantor in a non-employee capacity following termination of his
employment and pay to the Covenantor the Payments and Benefits and
Consulting Fee (as such terms are defined in the Separation
Agreement);
WHEREAS , pursuant to the Separation Agreement, the
Covenantor will continue his service as a member of the boards of
directors of the Companies, and in consideration for such service
the Company will grant the Covenantor an option to acquire shares
of its capital stock pursuant to the Option Agreement attached as
Exhibit C to the Separation Agreement (the “ Option
Agreement ”);
WHEREAS , the Covenantor, by reason of his intimate
involvement in the operations and management of the business of the
Companies, has acquired knowledge and expertise relating to the
business and operations of the Companies and hereafter will acquire
more knowledge and expertise related to the business and operations
of the Companies; and
WHEREAS , the Covenantor acknowledges that the Companies
would not have entered into the Separation Agreement and the
Company would not have entered into the Option Agreement unless the
Covenantor executes and delivers this Agreement, and wishes to
forego his right to compete with the Company and its subsidiaries
and affiliates with respect to the business of the Company and its
subsidiaries and affiliates.
NOW, THEREFORE
, in order to induce the Companies
to enter into the Separation Agreement and the Company to enter
into the Option Agreement, and in consideration of the premises and
of the mutual covenants and agreements contained herein and
therein, the parties hereto, intending legally to be bound, hereby
agree as follows:
1. Noncompetition,
Nonsolicitation .
(a) Subject to the provisions of
Paragraph 1(c), provided that the Company has not materially
breached its obligations under the Separation Agreement or the
Option Agreement, from and after the date hereof and until twelve
(12) months following the last day that the Covenantor serves
as a director of any of the Companies, the Covenantor shall not,
without the prior written consent of the Company:
(i) directly or indirectly, as a
sole proprietor, member of a partnership, stockholder, investor,
officer or director of a corporation, or as an employee, associate,
consultant or agent of any person, partnership, corporation or
other business organization or
entity, render any service to
(including the making of investments in or otherwise providing
capital to) any competitor (or any person or entity that is
reasonably anticipated to become a competitor within the term
hereof) of the Company or its subsidiaries or affiliates, within
the geographic areas described in Paragraph 1(b); it being
understood that such a person, partnership, corporation or other
business organization or entity is in competition with the Company
or its subsidiaries or affiliates if it is then engaging or
planning to engage within the term hereof, itself or through any
joint venture, partnership or otherwise, in any business in which
(A) the Company or its subsidiaries or affiliates
(1) have been engaged prior to the date hereof or (2) are
presently engaged at the date hereof, or (B) the Company or
its subsidiaries or affiliates are engaged or have taken steps in
preparation to engage during the term hereof,
(ii) induce or attempt to induce any
person or entity which is or was a customer or client of the
Company or its subsidiaries or affiliates, or becomes a customer or
client of the Company or its subsidiaries or affiliates, to
terminate its relationship or otherwise cease doing business in
whole or in part with the Company or its subsidiaries or
affiliates,
(iii) solicit, entice, induce or
hire any person who is an employee, or becomes an employee, of the
Company or its subsidiaries or affiliates to become employed by any
other person, firm or corporation or to leave his or her employment
with the Company or its subsidiaries or affiliates, or approach any
such employee for such purpose or authorize or knowingly approve
the taking of such actions by any other person, or
(iv) interfere with any relationship
between the Company or its subsidiaries or affiliates and any of
its or their customers or clients so as to cause harm to the
Company or its subsidiaries or affiliates.
(b) The restrictions contained in
Paragraph 1(a) shall apply in the specific geographic areas and
customer markets within such geographic areas served by the Company
or its subsidiaries or affiliates at any time during the term
hereof.
(c) Nothing in this Paragraph 1
shall prohibit Covenantor from (i) obtaining employment in the
protective packaging industry so long as Covenantor does not
violate the terms of this Agreement, (ii) engaging in any
business that is not in competition with the Company or its
subsidiaries or affiliates, or (iii) investing in the
securities of any corporation having securities listed on a
national securities exchange, provided that such investment does
not exceed 2% of any class of securities of any corporation engaged
in business in competition with the Company or its subsidiaries or
affiliates, and provided that such investment represents a passive
investment and that neither Covenantor nor any group of persons
including him, in any way, either directly or indirectly, manages
or exercises control of any such corporation, guarantees any of its
financial obligations or otherwise takes any part in its business,
other than exercising his rights as a shareholder, or seeks to do
any of the foregoing.
2. Non-Disclosure of
Confidential Information . The Covenantor agrees that on
and after the date of this Agreement he shall not, without the
prior written consent of the Company, use for himself or others, or
divulge, disclose or make accessible to any other person, firm,
partnership, corporation or other entity, any Confidential
Information (as defined below) pertaining to the business of the
Company or its subsidiaries or affiliates, except when
required
2
to do so by a court of competent jurisdiction,
by any governmental agency having supervisory authority over the
business of the Company, or by any administrative body or
legislative body (including a committee thereof) with jurisdiction
to order Covenantor to divulge, disclose or make accessible such
information. All Confidential Information in Covenantor’s
possession shall be returned to the Company promptly following the
date of termination of Covenantor’s employment with the
Company. The term “Confidential Information” shall mean
non-public information concerning the Company or its subsidiaries
or affiliates, including, but not limited to, financial data,
strategic business plans, product development or other proprietary
product data, customer lists, consulting or licensing agreements,
vendor lists, lists of potential customers, pricing and credit
techniques, private processes, marketing plans, reports, summaries,
analyses or other proprietary information now or hereafter in the
possession of Covenantor, except for specific items which have
become publicly available information (other than such items which
Covenantor knows have become publicly available through a breach of
fiduciary duty or any confidentiality agreement).
3. Inventions .
Covenantor shall promptly, and in any event no later than one
(1) year after termination of his employment with the Company,
with respect to Inventions (as defined below) made or conceived by
Covenantor during his employment with the Company, either solely or
jointly with others, if based on or related to or connected with
the business of the Company or its subsidiaries or affiliates or if
the Company’s time, material, facilities or other employees
of the Company contributed thereto:
(a) Fully inform the Company in
writing of such Inventions;
(b) Assign, and Covenantor does
hereby assign, to the Company all of Covenantor’s rights to
such Inventions, if any, and to applications for letters patent and
to letters patent granted upon such Inventions; and
(c) Acknowledge and deliver to the
Company (without charge to Covenantor but at the expense of the
Company) such written instruments and do such other acts as may be
reasonably necessary to obtain and maintain letters patent and to
vest the entire right and title thereto in the Company or its
subsidiaries or affiliates.
All Inventions, regardless of
whether or not they are considered “works for hire,”
shall for all purposes be regarded as acquired and held by
Covenantor for the benefit, and shall be the sole and exclusive
property, of the Company. The term “Inventions” shall
mean discoveries, developments, improvements, or inventions
(whether patentable or not) related to the business of the Company
or its subsidiaries or affiliates.
4. Remedy for Certain
Breaches .
(a) Covenantor acknowledges and
agrees that the restrictions on his activities under the provisions
of Paragraphs 1, 2 and 3 are required for the reasonable protection
of the Company. Covenantor further acknowledges and agrees that a
breach of any of those obligations will result in irreparable harm
to the Company, for which there would be no adequate remedy at law,
and therefore, Covenantor irrevocably and unconditionally
(i) agrees that in addition to any other remedies which the
Company may have under this Agreement or otherwise, all of
which
3
remedies shall be cumulative, the
Company shall be entitled to apply to any court of competent
jurisdiction for preliminary and permanent injunctive relief and
other equitable relief, without the necessity of proving actual
damage, restraining Covenantor from doing or continuing to do or
perform any acts constituting such breach or threatened breach,
(ii) agrees that such relief and any other claim by the
Company pursuant hereto may be brought in the United States
District Court for the Southern District of New York, or if such
court does not have subject matter jurisdiction or will not accept
jurisdiction, in any court of general jurisdiction in the State of
New York, (iii) consents to the non-exclusive jurisdiction of
any such court in any such suit, action or proceeding, and
(iv) waives any objection which Covenantor may have to the
laying of venue of any such suit, action or proceeding in any such
court.
(b) Covenantor agrees that the
existence of any claim or cause of action by Covenantor against the
Company, whether predicated on this Agreement or otherwise, shall
not constitute a defense to the enforcement by the Company of the
provisions of this Agreement.
5. Nature of
Restrictions . Covenantor has carefully considered the
nature and extent of the restrictions upon him and the rights and
remedies conferred upon the Company under this Agreement, and
hereby acknowledges and agrees that the same are reasonable in time
and territory, are designed to eliminate competition which
otherwise would be unfair to the Company, do not stifle the
inherent skill and experience of Covenantor, would not operate as a
bar to Covenantor’s sole means of support, are fully required
to protect the legitimate interests of the Company and do not
confer a benefit upon the Company disproportionate to the detriment
to Covenantor.
6. Warranties .
Covenantor warrants and represents that he has full power and
authority to enter into this Agreement for and on behalf of himself
and that such act, and the performance of his obligations
hereunder, will not conflict with any other agreements or
undertakings to which he is a party or by which he is
bound.
7. Notices . All
notices, requests, consents and demands by the parties hereto shall
be delivered by hand, by confirmed facsimile transmission, by
recognized national overnight courier service or by deposit in the
United States mail, postage prepaid, by registered or certified
mail, return receipt requested, addressed to the party to be
notified at the addresses set forth below:
If to Covenantor, to the address
identified opposite Covenantor’s name on the signature page
attached hereto.
If to the Company:
c/o AEA Investors LLC
Park Avenue Tower
65 East 55 th Street
New York, NY 10022
Attn: Sanford Krieger
Facsimile:
(212) 702-0518
4
With a copy to:
Fried, Frank, Harris, Shriver and
Jacobson LLP
One New York Plaza
New York, NY 10004
Attn: Christopher Ewan
Facsimile:
(212) 859-4000
Notices shall be effective immediately upon
personal delivery or facsimile transmission,
one (1) business day after deposit with an overnight
courier service or three (3) business days after the date of
mailing thereof. Other notices shall be deemed given on the date of
receipt. Either party hereto may change the address specified
herein by written notice to the other party hereto.
8. Entire Agreement .
This Agreement cancels and supersedes any and all prior agreements
and understandings between the parties hereto with respect to the
obligations of Covenantor other than under and pursuant to the
Separation Agreement and Option Agreement. This Agreement
constitutes the entire agreement between the parties with respect
to the matters herein provided, and no modification or waiver of
any provision hereof shall be effective unless in writing and
signed by the Company and Covenantor.
9. Binding Effect .
All of the terms and provisions of this Agreement shall be binding
upon the parties hereto and its or his heirs, executors,
administrators, legal representatives, successors and assigns, and
inure to the benefit of and be enforceable by the Company and its
successors and assigns, except that the duties and responsibilities
of Covenantor hereunder are of a personal nature and shall not be
assignable or delegable in whole or in part.
10. Reformation of Agreement;
Severability . In the event that any of the provisions of
Paragraphs 1, 2 and 3 shall be found by a court of competent
jurisdiction to be invalid or unenforceable to any extent for any
reason, such court shall exercise its discretion in reforming such
provision(s) to the end that Covenantor shall be subject to
nondisclosure, nonsolicitation and noncompetition covenants that
are reasonable under the circumstances and enforceable by the
Company. In the event that any other provision of this Agreement or
application thereof to anyone or under any circumstance is found to
be invalid or unenforceable in any jurisdiction to any extent for
any reason, such invalidity or unenforceability shall not affect
any other provision or application of this Agreement which can be
given effect without the invalid or unenforceable provision or
application and shall not invalidate or render unenforceable such
provision or application in any other jurisdiction.
11. Remedies; Waiver .
No remedy conferred upon the Company by this Agreement is intended
to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to any other remedy
given hereunder or now or hereafter existing at law or in equity.
No delay or omission by the Company in exercising any right, remedy
or power hereunder or existing at law or in equity shall be
construed as a waiver thereof, and any such right, remedy or power
may be exercised by the party possessing the same from time to time
and as often as may be deemed expedient or necessary by such party
in its sole discretion.
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12. Counterparts .
This Agreement may be executed in several counterparts, each of
which is an original and all of which shall constitute one
instrument. It shall not be necessary in making proof of this
Agreement or any counterpart hereof to produce or account for any
of the other counterparts.
13. Governing Law .
The validity, interpretation, construction, performance and
enforcement of this Agreement shall be governed by the laws of the
State of New York, without application of conflict of laws
principles.
14. Headings . The
captions and headings contained in this Agreement are for
convenience only and shall not be construed as a part of the
Agreement.
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IN WITNESS WHEREOF, the parties have
executed this Agreement as of the date and year first above
written.
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PREGIS HOLDING I CORPORATION
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By
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/s/ Thomas J. Pryma
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Name:
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Thomas J. Pryma
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Title:
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President
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COVENANTOR:
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Address:
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/s/ James D. Morris
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263 W.
Onwentsia Road
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James D. Morris
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Lake Forest, IL 60045
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EXECUTION COPY
NONCOMPETITION
AGREEMENT
AGREEMENT, made as of the 30th day
of November, 2005 by and among Pregis Holding I Corporation, a
Delaware corporation (the “ Company ”), and
Kevin Corcoran (the “ Covenantor ”) (the “
Agreement ”).
W I T N E S S E T
H:
WHEREAS , pursuant to that certain Separation Agreement
and Release dated as of November 30, 2005, by and among the
Company, the Covenantor and the other parties thereto (the “
Separation Agreement ”), the Companies (as such term
is defined in the Separation Agreement) agreed to pay Covenantor
the Separation Benefits and the Retention Bonus (as such terms are
defined in the Separation Agreement) in consideration of the
Covenantor’s continued employment with the Companies while
the Companies search for, hire and train the Covenantor’s
successor;
WHEREAS , the Covenantor, by reason of his intimate
involvement in the operations and management of the business of the
Company, has acquired knowledge and expertise relating to the
business and operations of the Company and hereafter will acquire
more knowledge and expertise related to the business and operations
of the Company; and
WHEREAS , the Covenantor acknowledges that the Company
would not have entered into the Separation Agreement unless
Covenantor executes and delivers this Agreement, and wishes to
forego his right to compete with the Company and its subsidiaries
and affiliates with respect to the business of the Company and its
subsidiaries and affiliates.
NOW, THEREFORE
, in order to induce the Company to
enter into the Separation Agreement, and in consideration of the
premises and of the mutual covenants and agreements contained
herein and in the Separation Agreement, the parties hereto,
intending legally to be bound, hereby agree as follows:
1. Noncompetition;
Nonsolicitation .
(a) Subject to the provisions of
Paragraph 1(c), provided that the Company has not materially
breached its obligations under the Separation Agreement, from and
after the date hereof and until one (1) year following the
date of the Covenantor’s termination of employment from the
Company, Covenantor shall not, without the prior written consent of
the Company:
(i) directly or indirectly, as a
sole proprietor, member of a partnership, stockholder, investor,
officer or director of a corporation, or as an employee, associate,
consultant or agent of any person, partnership, corporation or
other business organization or entity, render any service to
(including the making of investments in or otherwise providing
capital to) any competitor (or any person or entity that is
reasonably anticipated to become a competitor within the term
hereof) of the Company or its subsidiaries or affiliates, within
the geographic areas described in Paragraph 1(b); it being
understood that such a person, partnership, corporation or other
business organization or entity is in competition with the Company
or its subsidiaries or affiliates if it is then engaging or
planning to engage within the
term, itself or through any joint
venture, partnership or otherwise, in any business in which
(A) the Company or its subsidiaries or affiliates
(1) have been engaged prior to the date hereof or (2) are
presently engaged at the date hereof, or (B) the Company or
its subsidiaries or affiliates are engaged or have taken steps in
preparation to engage during the term hereof,
(ii) induce or attempt to induce any
person or entity which is or was a customer or client of the
Company or its subsidiaries or affiliates, or becomes a customer or
client of the Company or its subsidiaries or affiliates, to
terminate its relationship or otherwise cease doing business in
whole or in part with the Company or its subsidiaries or
affiliates,
(iii) solicit, entice, induce or
hire any person who is an employee, or becomes an employee, of the
Company or its subsidiaries or affiliates to become employed by any
other person, firm or corporation or to leave his or her employment
with the Company or its subsidiaries or affiliates, or approach any
such employee for such purpose or authorize or knowingly approve
the taking of such actions by any other person, or
(iv) interfere with any relationship
between the Company or its subsidiaries or affiliates and any of
its or their customers or clients so as to cause harm to the
Company or its subsidiaries or affiliates.
(b) The restrictions contained in
Paragraph 1(a) shall apply in the specific geographic areas and
customer markets within such geographic areas served by the Company
or its subsidiaries or affiliates at any time during the term
hereof.
(c) Nothing in this Paragraph 1
shall prohibit Covenantor from (i) obtaining employment in the
protective packaging industry so long as Covenantor does not
violate the terms of this Agreement, (ii) engaging in any
business that is not in competition with the Company or its
subsidiaries or affiliates, or (iii) investing in the
securities of any corporation having securities listed on a
national securities exchange, provided that such investment does
not exceed 2% of any class of securities of any corporation engaged
in business in competition with the Company or its subsidiaries or
affiliates, and provided that such investment represents a passive
investment and that neither Covenantor nor any group of persons
including him, in any way, either directly or indirectly, manages
or exercises control of any such corporation, guarantees any of its
financial obligations or otherwise takes any part in its business,
other than exercising his rights as a shareholder, or seeks to do
any of the foregoing.
2. Non-Disclosure of
Confidential Information . The Covenantor agrees that on
and after the date of this Agreement he shall not, without the
prior written consent of the Company, use for himself or others, or
divulge, disclose or make accessible to any other person, firm,
partnership, corporation or other entity, any Confidential
Information (as defined below) pertaining to the business of the
Company or its subsidiaries or affiliates, except when required to
do so by a court of competent jurisdiction, by any governmental
agency having supervisory authority over the business of the
Company, or by any administrative body or legislative body
(including a committee thereof) with jurisdiction to order
Covenantor to divulge, disclose or make accessible such
information. All Confidential Information in Covenantor’s
possession shall be returned to the Company promptly following the
date of termination of Covenantor’s employment with the
Company. The term “Confidential Information” shall mean
non-public
16
information concerning t
