exv10w33



 





EXHIBIT
10.33




NON-COMPETITION AND NON-DISCLOSURE AGREEMENT



(Gregory Ray)




     This NON-COMPETITION AND NON-DISCLOSURE AGREEMENT is entered into this 15th day of November,
1999, by and between Gregory Ray, who resides at 39W750 Crosscreek Lane, St. Charles, Illinois
60175 (“Executive”) and Heritage-Crystal Clean, LLC, an Indiana limited liability company
(“Crystal Clean”);



WITNESSETH:




     WHEREAS, Executive is a Unit holder and Member of Crystal Clean and serves as its Vice
President of Business Management and as a result of his positions with Crystal Clean, Executive
has access to and knowledge of all of Crystal Clean’s business information and confidential data;
and



     WHEREAS, Executive’s right to subscribe for and receive ownership of Units in Crystal Clean
is expressly conditioned upon Executive’s entering into an Executive Employment Agreement
(“Employment Agreement”) and this Non-Competition and Non-Disclosure Agreement;



     NOW THEREFORE, pursuant to the above and in consideration of the terms and conditions
contained herein and for other good and valuable considerations, the receipt and legal sufficiency
of which are hereby acknowledged, the parties agree as follows:



     (1) Consideration. Executive acknowledges that the consideration received by Executive
under the Subscription Agreement and the Employment Agreement and otherwise resulting from the
agreement of The Heritage Group, an Indiana general partnership, and certain of its
affiliates, partners
and their beneficiaries (collectively, “Heritage”) to organize Crystal Clean, is good and
sufficient
consideration for Executive’s covenants, agreements and forebearances contained in this
Agreement
and that Executive would not have been allowed to subscribe for Units but for Executive’s
entering into this Agreement.



     (2) Non-Disclosure. Executive will not, at any time following this date except as
required by the duties of his employment with Crystal Clean and/or its subsidiaries or affiliates,
disclose to any person, firm or corporation, any confidential information concerning Crystal Clean or its
assets or business, except as may be required by governmental law or regulation or in legal proceedings
to which Executive is subpoenaed to give testimony, in which event Executive shall notify
Crystal Clean immediately upon learning that Executive may be required or compelled to divulge
any confidential information. For purposes of this Agreement, “confidential information”
consists of that proprietary information subject to protection under the Uniform Trade Secrets
Act and includes, without limitation, Crystal Clean’s customer list and price information for
all customers and other intangible property to be transferred to Crystal Clean by Heritage.
“Confidential information” does not include information in the public domain through no fault
of the Executive or reasonably discoverable without access to internal documents or
information.



1









 





     (3) Non Competition. During the term of Executive’s employment with Crystal Clean,
and for a period of two (2) years from the date of Executive’s Termination of Employment
under the Employment Agreement (“Restricted Period”), Executive will not, other than for the exclusive
benefit of Crystal Clean, engage in the Business (as defined below) in the geographical area in which
Crystal Clean conducts Business during the term of Executive’s employment with Crystal Clean
(“Territory”),whether as an employee, owner, member, manager, consultant, agent, partner, service provider
or in any other capacity. For purposes of this Agreement, the term “Business” means the business
of providing environmental and fluid management services to small and medium sized customers and
providing parts washing and drum disposal services (“Business”). Notwithstanding the
foregoing, the parties agree that Executive may at any time engage in the following
activities, except to the extent such activities conflict with or breach Executive’s duties
and covenants as otherwise described in this Agreement and in the Employment Agreement (such
as including but not limited to the provisions regarding confidential information,
non-disclosure, non-solicitation and non-piracy and the provisions regarding regular and
full-time employment with the Company): (a) owning, directly or indirectly, any of the equity
or debt securities of Evergreen Holdings, Inc., a corporation which engages in a business
similar to a portion of the Business conducted by the Company, or its affiliates
(collectively, “Evergreen”); (b) only with respect to Evergreen’s used oil collection and
re-refining business, acting as an adviser or member of the Board of Directors of Evergreen;
and (c) assisting with the sale (including a public offering) or liquidation of Evergreen
(all such activities collectively referred to as “Evergreen Activities”). The parties further
acknowledge that Executive has disclosed to the Company, as a potential conflict of interest,
Executive’s interest as both the son-in-law of the owner of Evergreen and a claimant of
Evergreen shares in an amount not exceeding .3%.



     (4) Non-Solicitation; Non-Piracy. During the Restricted Period, Executive will not
personally call on any person or business organization which was a customer of Crystal Clean
during the Executive’s term of employment for Business within the Territory. Further, during the
Restricted Period, Executive will not, without the consent of Crystal Clean, for the Executive’s own
account or for any third party, solicit or endeavor to entice away, offer employment to or employ any
person who was employed by Crystal Clean during the twelve (12) month period immediately before the
termination of Executive’s employment with Crystal Clean.



     (5) Other Services. Executive may, without causing Executive to be in breach of this
Agreement, enter into other business endeavors during the Restricted Period or may engage in
the Business outside of the Territory; provided that Executive’s other permitted services will
not be deemed to allow Executive to use or disclose “Confidential Information” in contravention of
this Agreement or other agreements between Executive and Crystal Clean. Executive also may,
without causing Executive to be in breach of this Agreement, engage in the Evergreen Activities to
the extent and on the terms provided in Section 3.



     (6) Default and Remedies. Executive acknowledges and agrees that, if Executive
directly or indirectly breaches, violates, or fails to perform fully its obligations under
this Agreement (“Default”), each Default shall cause immediate and irreparable harm to Crystal Clean, in a
manner which cannot be adequately compensated in damages. Crystal Clean and Executive agree that in
the



2









 




event of any such Default, Crystal Clean, in addition to all other available remedies at law
or in equity, may, insofar as Executive may be concerned, be entitled to temporary, preliminary
and permanent injunctive relief to restrain such Default(s) by Executive or others acting in
concert with Executive, and to all of its costs, expenses, and reasonable attorneys’ .fees
incurred in any enforcement proceedings in which Crystal Clean prevails in whole or in part.
Nothing contained herein shall restrict or limit in any manner Crystal Clean’s right to obtain any
form of relief, legal or equitable, in an action brought to enforce Crystal Clean’s rights.




     (7) Severability. All provisions of this Agreement are intended to be severable.
Each provision of this Agreement constitutes a separate and distinct covenant. In the event any
term, provision, or restriction in this Agreement is held to be illegal, invalid or unenforceable
in any respect, such finding shall in no way affect the legality, validity, or enforceability of
all other provisions of this Agreement. Crystal Clean and Executive agree that any such
unenforceable term, provision or restriction shall be deemed modified to the extent necessary to
permit its enforcement to the maximum extent permitted by applicable law.



     (8) No Waiver of Rights. Neither any failure or any delay on the part of any party
in exercising its rights shall operate as a waiver, nor shall a single or partial exercise
preclude any further exercise of any right, power, or privilege by any party.



     (9) Governing Law; Jurisdiction and Venue. This Agreement shall be governed by
and construed in accordance with the laws of the State of Indiana. The state and federal
courts located in Marion County, Indiana, or Cook County, Illinois shall be the courts of exclusive
jurisdiction and venue over any enforcement of this Agreement.



     (10) Benefit. This Agreement shall inure to the benefit of and be binding upon the
heirs, executors, administrators, successors and assigns of the parties hereto. Executive hereby
agrees that the provisions of this Agreement may be assigned in whole or in part by Crystal Clean, and
Executive hereby consents to such assignment and agrees to be bound to the assignee under all of the
terms and conditions of this Agreement.



     (11) Notices. All notices and communications hereunder shall be in writing and shall
be deemed to be duly given if delivered in accordance with Section 17 of the Employment
Agreement.



     (12) Modification. No waiver, alteration or modification of any provision of this
Agreement will be valid unless made in writing and signed by all parties hereto. The waiver
of any breach or default shall not be deemed to waive any subsequent breach or default.



     (13) Entire Agreement. This Agreement constitutes the entire agreement of the parties
relative to the subject matter and supersedes any prior understanding, agreements or
representations by or among the parties, written or oral with regard to the subject matter of this Agreement.



3









 





     IN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure
Agreement on the day and year first above written.



	 	 	 	 	 	 	 
	 	 	EXECUTIVE
	 
	 	 	 	 	 	 
	 

	 	 	 	/s/ Gregory Ray	 	 
	 	 	 	 	 
	 

	 	 	 	     Gregory Ray	 	 
	 
	 	 	 	 	 	 
	 
	 	 	HERITAGE-CRYSTAL CLEAN, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Fred M. Fehsenfeld, Jr.	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	     Fred M. Fehsenfeld, Jr., Chairman	 	 







4