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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K/A
(AMENDMENT NO. 1)
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) April 3, 1996
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FUQUA ENTERPRISES, INC.
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(Exact name of registrant as specified in its charter)
Delaware 1-5091 13-1988043
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(State or other (Commission File Number) (I.R.S. Employer
jurisdiction of Identification No.)
incorporation)
One Atlantic Center, Suite 5000
1201 W. Peachtree Street, N.W., Atlanta, Georgia 30309
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(Address of principal executive offices)
Registrant's telephone number, including area code: 404-815-2000
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) and (b) Financial Statements of Business Acquired and Pro Forma
Financial Information.
On April 3, 1996, Fuqua Enterprises, Inc. ("Fuqua") completed the
acquisition of the medical products operations of Lumex, Inc. (the "Lumex
Division") and Fuqua reported this event in a Form 8-K filed on April 17, 1996.
Fuqua and Lumex, Inc. are currently discussing potential adjustments which,
under the terms of the asset sale agreement, may result in an adjustment of the
purchase price which Fuqua paid to acquire the Lumex Division. Fuqua has been
informed by Ernst & Young LLP, the independent accountants for Lumex, Inc.,
that Fuqua will not receive the audited financial statements of the Lumex
Division for each of the three years in the period ended December 31, 1995,
together with the independent accountants' report thereon and related consent,
until such time as the potential adjustments referred to above have been
resolved. As a result, the financial statements for the business acquired and
the pro forma financial information reflecting the impact of the acquisition
are not included herein but will be filed as soon as the necessary financial
statements, independent accountants' report and related consent are made
available to Fuqua.
(c) Exhibits.
10(a) Covenant Not to Compete by and among Lumex, Inc., Lumex
Medical Products, Inc., MUL Acquisition Corp. II and
Fuqua, dated April 3, 1996
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
FUQUA ENTERPRISES, INC.
(Registrant)
/s/ Brady W. Mullinax, Jr.
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Brady W. Mullinax, Jr., Vice President-
Finance, Treasurer and Chief Financial
Officer (Principal Financial and
Accounting Officer and Executive
Officer duly authorized to sign on
behalf of the Registrant)
Date: June 17, 1996
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EXHIBIT 10(a)
COVENANT NOT TO COMPETE
This Covenant Not to Compete (this "Agreement") is made this 3rd day of
April, 1996 by and among Lumex, Inc., a New York corporation ("Seller"), Lumex
Medical Products, Inc. (f/k/a MUL Acquisition Corp. I), a Delaware corporation
("Purchaser I"), MUL Acquisition Corp. II, a Delaware Corporation ("Purchaser
II) (Purchaser I and Purchaser II are collectively referred to herein as
"Purchasers"), and Fuqua Enterprises, Inc., a Delaware corporation ("Parent").
WITNESSETH
WHEREAS, Seller through its Lumex division (the "Division") and an
affiliated leasing company is engaged in the business of designing,
manufacturing, marketing, selling, leasing and distributing a wide variety of
health care products; and
WHEREAS, Purchasers, wholly owned subsidiaries of Parent, are to acquire
substantially all of the assets and properties of the Division pursuant to an
Asset Sale Agreement, dated as of March 13, 1996, among Seller, Purchasers and
Parent (the "Asset Sale Agreement"); capitalized terms used herein and defined
in the Asset Sale Agreement shall have the meanings set forth in the Asset Sale
Agreement when used herein unless otherwise defined herein or unless the context
otherwise requires; and
WHEREAS, following the consummation of the transactions contemplated by
the Asset Sale Agreement, Purchasers will control and conduct the Business (as
hereinafter defined); and
WHEREAS, to induce Purchasers and Parent to consummate the Asset Sale
Agreement and to acquire the Assets, Seller has agreed to execute this
Agreement, the terms and conditions of which are a material and integral part of
the consideration for the Asset Sale Agreement;
NOW, THEREFORE, in consideration of the premises, the mutual promises and
covenants of the parties set forth in this Agreement and the Asset Sale
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings unless the context specifically requires otherwise:
1.01 "BUSINESS" shall mean the design, manufacture, marketing, sale,
leasing and distribution of health care products of the types and performing the
functions of the
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products designed, manufactured, marketed, sold, leased or distributed by
Seller through the Division as of the date of this Agreement.
1.02 "COMPETE" OR "COMPETING" shall mean with respect to the Business:
(i) the design, manufacture, marketing, sale, leasing or distribution of health
care products of the types or performing the functions of the products designed,
manufactured, marketed, sold, leased and distributed by Seller through the
Division as of the date of this Agreement; (ii) hiring, soliciting or attempting
to hire or solicit any employee of the Division or Purchasers as of the Closing
Date either on Seller's behalf or on behalf of any other person or entity; or
(iii) entering into or attempting to enter into any business substantially
similar to the Business, either alone or with any individual, partnership,
corporation or association; provided, however, that Competing shall not mean or
include the ownership, disposition or use of Excluded Assets.
1.03 "DIRECTLY OR INDIRECTLY" as they modify the words "Compete" or
"Competing" shall mean: (i) acting as an agent, representative, consultant, or
independent contractor of any entity or enterprise that is Competing with the
Business; (ii) participating in any such Competing entity or enterprise as an
owner, partner, limited partner, joint venturer, or stockholder (except as a
stockholder owning less than a five percent interest in a corporation whose
shares are actively traded on a national securities exchange or in the
over-the-counter market); and (iii) communicating to any such Competing entity
or enterprise the names or addresses or any other information concerning any
past, present or identified prospective client, customer or supplier of the
Division prior to Closing.
1.04 "TERRITORY" shall mean the United States of America and Canada.
ARTICLE II
NON-COMPETITION AND NON-DISCLOSURE
2.01 SCOPE AND REASONABLENESS. Seller acknowledges that this Agreement
(including without limitation the covenants and agreements set forth in this
Article II) is being entered into as an important part of the consideration
received by Purchasers and Parent in connection with the acquisition of the
Assets. Seller also acknowledges that Purchasers and Parent have a reasonable
present and future expectation of continuing the Business within the Territory.
2.02 CONFIDENTIALITY AND TRADE SECRETS.
(a) Seller acknowledges and agrees that as the owner of the
Division it has created substantial confidential information used in and
concerning the business and has been afforded an unique opportunity to acquire
confidential information concerning the Business and that the misappropriation
or disclosure of such confidential information would cause irreparable harm to
Purchasers and Parent. Seller acknowledges that such confidential information
includes, without limitation, financial information concerning the Business, the
names and addresses of actual and potential customers of the Business,
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studies of prospective market areas for the Business, supply sources of the
Business, products of the Business, technical data concerning the Business,
ideas of the Business, processes of the Business, financial matters concerning
the Business, and trade secrets of the Business, such information collectively
being referred to as the "Confidential Information." For purposes of this
Agreement "trade secrets" means any information that derives independent value
from being secret. Confidential Information shall not include any information
or documents that (i) are or become publicly available without breach of this
Section 2.02, (ii) Seller receives from any third party who, to the best of
Seller's knowledge upon reasonable inquiry, is not breaching an obligation of
confidence with Purchasers or Parent (including such an obligation under an
agreement assigned to Purchasers pursuant to the Asset Sale Agreement) or
without an accompanying obligation of confidence, or (iii) is required to be
released by law. In the event that Seller is requested in any court or
governmental proceeding to disclose any Confidential Information, Seller shall
give Purchasers and Parent prompt notice of such request, such that Purchasers
or Parent may seek a protective order or other appropriate relief, and in any
such proceeding Seller will disclose only so much of the Confidential
Information as is required to be disclosed.
(b) Seller will keep confidential and will not for a period of three (3)
years after the execution of this Agreement, directly or indirectly, divulge to
anyone, use or otherwise appropriate any of the Confidential Information for any
reason or purpose whatsoever except to authorized representatives of Purchasers
or the Parent.
(c) With respect to any trade secrets included in the Confidential
Information, Seller also agrees not to use or disclose any of such trade secrets
at any time until such trade secrets become generally available to the public by
independent discovery or development and publication through no fault of Seller.
Seller acknowledges and agrees that these prohibitions against disclosure of
Confidential Information are in addition to, and not in lieu of, any rights or
remedies that Purchasers or Parent may have available pursuant to the laws of
any jurisdiction or at common law to prevent disclosure of trade secrets or
proprietary information, and the enforcement by Purchasers or Parent of any of
their rights and remedies pursuant to this Agreement shall not be construed as a
waiver of any other rights or available remedies they may possess in law or
equity absent this Agreement.
2.03 NON-COMPETITION. Seller agrees that for a period of three (3) years
following the execution of this Agreement, it will not, without Purchasers'
prior written consent, Directly or Indirectly Compete with Purchasers in the
Business within the Territory.
2.04 NON-SOLICITATION AND NON-INTERFERENCE. Seller agrees that for a
period of one (1) year after the execution of this Agreement, it will not in
any way, directly or indirectly, for itself or on behalf of or in conjunction
with any other person, partnership, firm or corporation hire any employee of
the Division or Purchasers as of the Closing
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Date, or request or induce any employee of the Division or Purchasers as of the
Closing Date to terminate his or her employment and accept employment with
another entity.
2.05 REMEDIES. Seller acknowledges that any violation of this Article
II will cause irreparable harm to Purchasers and Parent and that damages are
not an adequate remedy. Seller, therefore, agrees that Purchasers and Parent
shall be entitled to an injunction, without the necessity of posting any bond,
enjoining, prohibiting, and restraining Seller from the continuance of any such
violation, in addition to any monetary recovery that might be available to
Purchasers and Parent by reason of a violation of this Agreement and any other
remedies at law or in equity, including without limitation specific
performance.
2.06 INDEPENDENT. The covenants set forth in the foregoing Sections of
Article II are and shall be deemed and construed as separate and independent
covenants. Should any part or provision of such covenants be held invalid,
void, or unenforceable in any court of competent jurisdiction, such invalidity,
voidness, or unenforceability shall not render invalid, void, or unenforceable
any other part or provision thereof. Specifically, and without limiting the
generality of the foregoing, if any portion of Section 2.01, 2.02, 2.03 or 2.04
is found to be invalid by a court of competent jurisdiction because its
duration, the Territory, and/or the Business or any definition or restriction
are invalid or unreasonable in scope, such duration, Territory, and/or Business
or any definition or restriction, as the case may be, shall be redefined by
consideration of the reasonable concerns and needs of Purchasers such that the
intent of Purchasers, the Company and Seller, in agreeing to Sections 2.01,
2.02, 2.03 and 2.04, will not be impaired and shall be enforceable to the
fullest extent of the applicable laws.
ARTICLE III
MISCELLANEOUS
3.01 SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by any
party hereto, except that Purchasers' and Parent's rights, duties and
obligations under this Agreement may be assigned and delegated to any subsidiary
of Purchasers or Parent or to the acquiror of Purchasers, Parent or the Business
in the event either Purchaser or Parent is merged, acquired, sells substantially
all of its interest in the Business, or transfers its interest in the Business
to any other entity. From and after any such assignment by Purchasers or
Parent, the term "Purchasers" or "Parent," as the case may be, shall mean such
assignee, and such assignee may enforce any of the rights of Purchasers or
Parent under this Agreement as if it were the original party hereto.
3.02 INTEGRATED AGREEMENT AND CONSIDERATION. This Agreement constitutes
the entire Agreement between the parties with regard to its subject matter and
supersedes all prior agreements (other than the Asset Sale Agreement and the
agreements entered into in connection therewith) relating to the same subject
matter. Seller hereby acknowledges that the consideration specified herein and
in the Asset Sale Agreement is good and valuable consideration received by
Seller for the covenants and undertakings described in
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this Agreement, and such covenants and undertakings are ancillary to, and an
integral part of the transactions contemplated by the Asset Sale Agreement.
3.03 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will take effect as an original and all of which
shall evidence one and the same agreement.
3.04 GOVERNING LAW. The terms of this Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
3.05 PRONOUNS. All pronouns used herein shall be deemed to refer to the
masculine, feminine, or neuter gender as the context requires.
3.07 BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective heirs, executors,
administrators, successors, and permitted assigns.
[Signatures on Next Page]
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IN WITNESS WHEREOF, each party has caused this Agreement to be executed on
its behalf, all on the day and year first written above.
SELLER:
LUMEX, INC.
By: /s/ Robert McNally
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Name: Robert McNally
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Title: Chief Financial Officer
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PURCHASERS:
LUMEX MEDICAL PRODUCTS, INC.
By: /s/ L. P. Klamon
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Name: Lawrence P. Klamon
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Title: President and Chief Executive Officer
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MUL ACQUISITION CORP. II
By: /s/ L. P. Klamon
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Name: Lawrence P. Klamon
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Title: President and Chief Executive Officer
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PARENT:
FUQUA ENTERPRISES, INC.
By: /s/ L. P. Klamon
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Name: Lawrence P. Klamon
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Title: President and Chief Executive Officer
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