Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW ROSZKOWSKI, District Judge. This is an anti-trust action filed in 1965 by plaintiffs, Lektro-Vend Corporation (“Lektro-Vend”), Harry B. Stoner (“Stoner”), and Stoner Investments, Inc. (“Stoner Investments”) against defendant, the Vendo Company (“Vendo”). Plaintiffs allege that defendant’s acquisition of Stoner Manufacturing Corporation (the predecessor of Stoner Investments), in 1959, violated sections 1 and 2 of The Sherman Act, 15 U.S.C. §§ 1, 2 and Sections 4, 7, and 16 of The Clayton Act, 15 U.S.C. §§ 15, 18, and 26. For the reasons herein stated, this court awards a judgment in favor of defendant. A bench trial was held in this case beginning in August, 1978 and concluding in September, 1978. The background findings of fact, conclusions of law, and an analysis and discussion supporting this decision are stated below. FINDINGS OF FACT THE PARTIES Plaintiff, Stoner Investments, Inc. (“Stoner Investments”), is a corporation organized and existing under the laws of the State of Delaware. It is a successor to an Illinois Corporation of the same name, which prior to June 1, 1959, was named Stoner Manufacturing Company. Stoner Manufacturing Company (“Stoner Manufacturing”) was an Illinois corporation engaged primarily in the manufacturing of candy vending machines. Plaintiff, Harry B. Stoner (“Stoner”), was president and controlling owner of Stoner Manufacturing, now Stoner Investments, prior to his death in March, 1976. On October 1, 1976, Stoner’s wife; Ann Stoner, administrator of his estate, was substituted as a party plaintiff in this case. Stoner was president of defendant, Vendo Corporation’s, Aurora Division (previously Stoner Manufacturing) from June 1,1959 through June 1, 1964 and a director of Vendo from May 28, 1959 to April 21, 1964. Plaintiff, Lektro-Vend Corporation (“Lektro-Vend”), is a Delaware corporation with its principal place of business in Aurora, Illinois. Lektro-Vend was first organized in September, 1963 as a manufacturer of candy and snack pastry vending machines. Stoner Investments currently owns approximately 78% of the stock of LektroVend. Defendant, Vendo Corporation, is a Missouri corporation with its principal place of business in Kansas City, Missouri. The principal business of Vendo is the manufacturing and selling of bottle and can soft drink vending machines, including premixed Coca-Cola, to franchised soft drink bottlers. In addition, Vendo manufactures and sells general merchandise vending machines, coffee vending machines, milk vending machines, ice cream vending machines, hot canned food vending machines, cold food vending machines, and soft drink vending machines to vending operators. At various times, Vendo also manufactured and sold candy, pastry and snack vending machines as well as cigarette vending machines to vending operators. THE INDUSTRY The parties agree that Stoner was a design genius in creating innovative vending machine products. By 1959, Stoner Manufacturing’s drop-shelf candy vending machine was the leading candy vending machine throughout the United States. As against other candy vending machine sales, its sales fluctuated between 71% of the market in 1955 and 31% in 1959. By 1959, Stoner Manufacturing also manufactured and sold vending machines for instant coffee, hot canned food, hot sandwiches, and cigarettes. In addition, Stoner was at work on developing a console cigarette machine, a refrigerated sandwich machine, and a post-mix cold drink machine. Stoner Manufacturing employed twelve to thirteen salesmen and sold vending machines throughout the United States. In early 1959, the company was also negotiating for the licensing of a company in England to sell its machines abroad, but the negotiations were unsuccessful. From 1955 to 1959, Stoner Manufacturing’s sales varied from a 6.8% share to a 4.2% share of the market of all U.S. vending machine sales. Within the “Vendo-served” market, in that same time period, Stoner Manufacturing’s share varied from 7.2% to 4.4%. Prior to 1959, Vendo was primarily a manufacturer of beverage and ice cream vending machines. It had approximately 112 company salesmen who sold throughout the United States and it exported its machines to 58 countries. Vendo’s sales and income after taxes for the calendar year ending December 31,1955 through 1977 are set out in the following table: Calendar Year Ending December 31 Sales Net Income (Loss) 1955 $ 20,799,000 $ 842,000 1956 42.076.000 1,660,000 1957 37.056.000 1.075.000 1958 29.410.000 973,000 1959 45.046.000 2.484.000 1960 61.244.000 3.153.000 1961 53.696.000 2.297.000 1962 55.343.000 2.898.000 1963 51.958.000 1.990.000 1964 63.538.000 3.503.000 1965 77.425.000 5.101.000 1966 90.577.000 6.460.000 1967 88.361.000 5.016.000 1968 99.931.000 4.605.000 1969 99.353.000 2.408.000 1970 90.748.000 2.110.000 1971 91.868.000 92,000 1972 110.794.000 2.573.000 1973 113.346.000 2.857.000 1974 88.374.000 (3.134.000) 1975 69.164.000 (2.463.000) 1976 83.370.000 ( 857,000) 1977 97.168.000 (3.650.000) Vendo’s share of all vending machine sales was 20.3% in 1955, 21.5% in 1956, 28.2% in 1957, and 28.4% in 1958. Its share of the “Vendo-served” market was 21.6% in 1955, 22.9% in 1956, 30% in 1957, and 24.3% in 1958. Vendo researchers reported that Vendo commanded the following percentages of the markets in which it competed from 1959 through 1969; 35.6% (1959); 34.9% (1960); 26.6% (1961); 29.1% (1962); 26.4% (1963); 28.9% (1964); 32.4% (1965); 33.0% (1966); 31.4% (1967); 32.3% (1968); and 33.0% (1969). As can be seen, during the time period most immediately relevant to this suit (1959-1966), Vendo controlled approximately 30% of the market in which it competed. In 1966, Vendo expected its share of market dollars to climb to 58% by 1971. The vending machine industry experienced rapid growth and change in the years 1955 through 1966. During that period there was a significant trend toward concentration within the industry with one-half the number of manufacturers existing in 1966 as existed in 1958. The 130 manufacturers in 1957 dwindled to 76 in 1963 and 66 in 1964. In 1964, 49 of the 66 manufacturers experienced sales over $100,000. In 1964 only 16 manufacturers of vending machines for confections and food had sales in excess of $100,000; in 1964 only 8 of 12 companies manufacturing vending machines for candy bars had sales in excess of $100,000. This trend toward concentration throughout the vending machine manufacturing industry has continued through 1975. The 66 manufacturers of 1964 had dwindled to 44 by 1975. From 1963 to 1973, the number of manufacturers with sales of $100,000 fell from 54 to 31. Also during the years 1955 through 1966, the number of locations available for the placement of machines increased and the number of operators in the business increased. Additionally, development of new equipment was substantial. The vending machine industry reached its peak in 1966 with sales of $216,518,000. By 1966, the industry was approaching a point of saturation. Industrial construction declined, the number of locations available for the placement of machines decreased, and an increasing percentage of the new machines sold were for replacement of existing machines at existing locations rather than for new locations. Customers for vending machines can be divided into two different classes: 1) franchised soft drink bottlers (e. g., the Coca-Cola Company), which purchase machines to vend soft drinks which they manufacture, and 2) vending service companies, known as “operators”, which purchase vending machines for the sale of food, beverages, and other items typically manufactured by others, including vending machines for hot, cold, and frozen foods, dairy products, coffee, candy, pastry, snacks, ice, soft drinks, and cigarettes. Bottlers and operators conduct different types of businesses for different purposes. Franchised soft drink bottlers are in the business of mixing, bottling, and selling, by whatever means, their brand-named soft drink. Bottlers purchase and operate bottle and can vending machines as only one means to sell their drink. Bottlers, in operating soft drink vending machines, are both seeking a profit and a means for creating a preference for their product by making their brand-name soft drink available in as many places as possible whether the location is profitable or unprofitable. Operators, on the other hand, are companies solely in the business of purchasing vending machines, placing them on locations, loading them with products, and maintaining them in service. Vending operators operate machines solely for a profit, as they are not interested in establishing the brand name of any product they vend. There are several types of operators that can be distinguished according to the type of institution served. “Street operators” serve small, public establishments such as gas stations, bowling alleys, bars, and restaurants. “Industrial operators”, or “full-line operators”, place their machines in locations such as factories, schools, and hospitals where virtually the same patrons are served every day. Street operators, ordinarily operate the “4 C’s” in vending machines-candy, coffee, cold drinks, and cigarettes and usually have two to four machines at one location. Industrial operators will often times locate a bank of equipment at one location providing a full line of products. The machines placed within banks of equipment are generally larger in capacity and size and have less styling and more uniformity in appearance. Street operators ordinarily have “console” machines which are smaller in size and capacity and are highly stylized and more distinctive in appearance. Vending operator companies vary in size. There are national operating companies which are large publicly owned chains listed on the New York Stock Exchange with national or regional coverage. There are independent operators which do business in a smaller number of locations. Some independents are members of buying co-operatives, such as AVA. Additionally, there are some bottlers who are also vending operators. Those bottlers who are also operators generally conduct their vending operator business as a separate company or division with separate offices, books, personnel, and routes. In 1958, almost all operators were entirely independent with Canteen Corporation being the only operator company with a national structure. Beginning in the early 1960’s, the industry experienced the growth of several national and large regional operators such as ARA, Servomotion, Macke, Interstate United, Automatique, and Autoviables. These operators engage in both the operation of vending machines and in manual food preparation and service on the location premises. In the late 1950’s and early 1960’s, Vendo was interested in becoming a full-line manufacturer of vending machine equipment. Vendo, in fact, successfully used the full-line marketing technique. Today, Vendo is not a full-line manufacturer. Both full-line and non-full line manufacturers provide their customers with cosmetic devices for their equipment (such as grills, screens, panels, and headers) which permit their machines to be placed in banks with the machines of other companies. The use of these cosmetic devices to provide uniform or matching appearances between the machines of different companies reduces somewhat the disadvantage of being a non-full line manufacturer. Additionally, non-full line manufacturers often times join buying cooperatives in order to diminish the significance of being a non-full line manufacturer. THE SALE AND ACQUISITION In 1955, Clarence Adelberg, Executive Vice President of Stoner Manufacturing, suggested to Elmer Pierson, Chairman of the Board of Vendo, that Vendo acquire Stoner Manufacturing. Stoner and Adelberg subsequently met with various Vendo officers in Kansas City to discuss this possibility. However, no agreement was reached at this time. Plaintiffs contend, and Vendo denies, that, during these negotiations, Robert W. Wagstaff, Executive Vice President and General Counsel of Vendo, threatened that, if Stoner did not sell, Vendo would put Stoner out of business. Nevertheless, both parties agree that Stoner’s subsequent decision to sell in 1959 was not prompted by any threat or action by Vendo. In July, 1956, Vendo acquired Vendorlator Manufacturing Co. (“Vendorlator”), a manufacturer of bottle vending machines from Fresno, California. As a result of this acquisition, the FTC commenced proceedings against Vendo in 1957 charging that the acquisition would tend to substantially lessen competition within the sub-market of bottle vending machines in violation of Section 7 of the Clayton Act. Before a decision was reached, Vendo and the FTC entered into a consent decree requiring Vendo to secure advance clearance from the FTC before acquiring any other manufacturers of bottle vending machines. By 1958, Vendo was contemplating possible future developments which included the introduction of an instant coffee machine, a fresh food machine, a hot canned food machine, a cigarette machine, and a candy vending machine incorporating stock rotation and product visibility. In October, 1958, Bip Glassgold, Stoner Manufacturing’s Vice President in charge of sales, again approached Vendo to explore the possibility of Vendo acquiring Stoner Manufacturing. Robert Wagstaff, who had become Chief Executive officer for Vendo in 1958, Henry Gaddis, Vendo’s Chief Financial officer, and Elmer Pierson participated in the negotiations for Vendo. Harry Stoner, Joseph Lazzara, Controller of Stoner Manufacturing, Jack Steward, Bip Glass-gold, and Everett Johnson, a Senior partner at Arthur Anderson & Co., participated on behalf of Stoner Manufacturing. From Stoner’s viewpoint, the proposed sale to Vendo was advantageous due to Stoner’s health problems, the death of Stoner’s close associate and Executive Vice President Adelberg, the strain on Stoner from running the firm alone, and the fact that each of Stoner Manufacturing’s shareholders had Stoner stock as one of their principal assets. According to Stoner’s affidavit: Vendo seemed to be a logical purchaser because no other prospective purchaser had any management people capable of running the business without being educated in the vending machine field. Vendo being experienced in that field will be able to take over with less assistance from me. I am interested in having the business continued by people who have capable management and who will continue to employ and be compatible with our present officers and employees and with a minimum of dislocation of business practices and employment security. I do not want to let the business just drift and carry on of its own momentum, because this cannot continue indefinitely and there is great risk of loss involved in such a program. I attribute our poor showing in sales in 1958, and since, at least in part, to the management difficulties I have already described. Vendo’s purpose in acquiring Stoner Manufacturing was to expand its line of vending machines, principally through the acquisition of a proven candy machine. An internal Vendo memorandum of October 20, 1958 from Stevens to Wagstaff indicated that, although Stoner Manufacturing’s 1958 sales had declined and although the company had certain weaknesses and a few unfavorable factors, Stoner was “the leading supplier” of candy and pastry machines as well as “a major factor in instant coffee equipment.” Stevens concluded that the acquisition would be “a big step toward giving us a complete line of equipment.” Additionally, Wagstaff reported to Pierson that two other vending machine manufacturers were negotiating with Stoner. Buckley from Vendo’s marketing division had indicated that “if Stoner were to fall into the hands of a more aggressive competitor . . . the entrance of Vendo into this particular market would be still retarded. . . On April 3, 1959, after extensive negotiations during which various proposals were discussed, Vendo and Stoner Manufacturing, both represented by counsel, entered into a contractual agreement whereby Vendo would purchase the assets of Stoner Manufacturing, including inventions, patents, drawings, designs, and research and development work. Under the sale agreement, Vendo was to pay Stoner Manufacturing $3,400,000 in cash and deliver to it 60,000 shares of Vendo stock. The land and the property constituting the Stoner Manufacturing plant was leased to Vendo at a stipulated rental for ten years with an option of renewal for a like period. Vendo was also given an option to purchase the property on or after December 31, 1961. Vendo further agreed to pay to Stoner annually for a period of ten years, or until such time as it might exercise its option to purchase the plant, all profits in excess of $250,000 realized from the use of the assets being purchased. Any such amount paid by Vendo was to be credited toward the purchase of the plant. Vendo also agreed to pay, for a period of ten years, 25% of the income received from the foreign production of the machines being acquired. The acquisition agreement contained the following restrictive covenant: Section 15. From and after the closing the Company [Stoner Mfg. Corp.] will not own, directly or indirectly, manage, operate, join, control or participate in the ownership, management, operation or control of, or be connected in any manner with, any business engaged in the manufacture and sale of vending machines under any name similar to the Company’s present name, and, for a period of ten (10) years after the closing, the Company will not in any manner, directly or indirectly, enter into or engage in the United States or any foreign country in which Vendo or any affiliate or subsidiary is so engaged, in the manufacture and sale of vending machines or any business similar to that now being conducted by the Company. The Company also agrees that during its corporate existence it will, without incurring any financial obligation, co-operate with Vendo to prevent the use by others of the names “Stoner” and “Stoner Mfg. Corp.” in connection with any business similar to that now carried on by the Company and also agrees not to disclose to others, or make use of, directly or indirectly any formulas or process now owned or used by the Company. Vendo and Stoner voluntarily sought pre-merger clearance of the acquisition by the FTC, and on May 14, 1959 the FTC sent their clearance letter. In addition to the sale agreement, the parties executed an employment agreement on June 1, 1959 whereby Stoner agreed to serve as an officer, or in such other executive or advisory capacity as- Vendo requested, consistent with Stoner’s physical abilities, for five years at an annual salary of $50,000.00. Stoner also agreed to serve as a director of Vendo without additional compensation. As to Stoner’s service, the employment contract provided that: Stoner shall regulate his own hours of employment and shall determine the amount of time and effort which he shall devote ..., it being understood that the value of Stoner’s services to the Company [Vendo] are not measured by the amount of time or effort devoted to the business by Stoner but by the value of his advice and counsel in the operation of the Aurora, Illinois, facility, and his know-how, experience and reputation in the vending machine field. The contract provided that Stoner’s employment could be terminated in several ways: (a) Vendo “shall have the right to terminate ... in the event of a substantial violation of the terms hereof by Stoner”, (b) Stoner could terminate “in the event he shall feel that he is not physically able to perform his duties hereunder”, or (c) if not terminated by either party, the employment would expire at the end of the five year term or on Stoner’s death, whichever came first. The employment agreement also contained a restrictive covenant which provided that: 5. During the term of this agreement and for a period of five (5) years following the termination of his employment hereunder, whether by lapse of time or by termination as hereinafter provided, Stoner shall not directly or indirectly, in any of the territories in which the Company or its subsidiaries or affiliates is at present conducting business and also in territories which Stoner knows the Cornpany or its subsidiaries intends to extend and carry on business by expansion of present activities, enter into or engage in the vending machine manufacturing business or any branch thereof, either as an individual on his own account, or as a partner or joint venturer, or as an employee, agent or salesman for any person, firm or corporation or as an officer or director of a corporation or otherwise, provided, however, that the Company, its subsidiaries and affiliates shall be excluded from the restrictions hereof and provided also that Stoner shall be permitted to own, hold, acquire and dispose of stocks and other securities which are traded in the investment security market whether on listed exchanges or over the counter. The period of the non-competition covenants was the same period during which Vendo (a) had the option to purchase the Stoner Manufacturing plant, (b) was to pay out a specified share of profits from the use of the acquired assets, and (c) was to pay out a specified share of the income from the foreign production of the acquired machinery. The term of the non-competition covenants was increased from 5 years to 10 years after Vendo received a proposal from Stoner that Vendo’s then pending offer, which included a 5 year option and payout, be changed to include a 10 year option and payout. The increased term was proposed by Hillix, Vendo’s outside counsel in response to Stoner’s suggestion. Vendo’s press release announcing the Stoner acquisition to the trade stated that “[ojfficers of the Stoner firm will continue in their present capacities, . . . and there will be no change in the mode of operations.” Vendo prepared a letter, which Stoner signed, to be sent to Stoner’s customers. That letter stated: “We do not anticipate any change in Stoner’s basic operating policies. We will continue to serve you, our customers, with the same organization we had in the past. Officers of Stoner Manufacturing will remain unchanged with myself as President.” Another letter drafted by Vendo, and signed by Stoner, was sent to Stoner Manufacturing employees. That letter stated that an independent engineering department would be maintained in Aurora after the sale. THE BREAKDOWN OF THE PARTIES’ RELATIONSHIP Almost immediately after the closing of the acquisition transaction, Stoner became unhappy because he began losing control of his company. Shortly after the closing of the sale, Vendo announced that the engineering and research departments of Stoner Manufacturing would be moved to Kansas City. Subsequently, new product research and development was moved to Kansas City, and Vendo’s research and development head, Bobby Andrews, reviewed Stoner Manufacturing’s development work and recommended that part of it be dropped. Stoner was not consulted about these developments and he believed he had been relegated to “senior citizen status.” Within approximately three weeks of the closing of the sale, executive control of operations, sales, and finance was also transferred to Kansas City. None of Stoner’s division executives would report to Stoner as president. Wagstaff set up a meeting in Aurora on June 24, 1959. Stoner maintains that Wag-staff “fired” Stoner at this meeting and that the office of president of the Stoner Division was made “strictly advisory.” Wagstaff stated that he told Stoner his job as president was advisory only and Wag-staff stated that he had “no choice but to do what we thought right.” After this June meeting, the general manager of Stoner Manufacturing was to report only to Kansas City. There were occasions when Vendo sought Stoner’s advice. Elmer Pierson asked Stoner for his advice regarding coinage. Spencer Childers, who acted as “father confessor” for Vendorlator employees, asked Stoner’s advice concerning a FIFO device in August of 1959. Also in August, Stoner was asked to assist in a union dispute which arose over Vendo’s removal of some equipment from the Aurora plant. One of Stoner’s primary complaints was Vendo’s failure to use Stoner’s “design genius and experience” and their failure to put Stoner on Vendo’s Products Planning Committee. Vendo stated that they would have put Stoner on the Committee if he had shown some interest in the operations of the company. According to Vendo’s Wag-staff, the relationship between Stoner and Vendo broke down completely: . . . [A]t the beginning we discussed the changes that we desired to make with him in the plant and got his viewpoint, but Harry felt our viewpoint was so contrary to his that it got to the point that the discussions were just completely incompatible, and there was no point to having them. They outraged him and got him upset, and so those things by attrition just sort of phase out, but not by policy. I think, thought, and still think that one of the difficulties in anything of that sort is getting people to agree, and I think Harry could have made quite a contribution to the operation if he had not been so irritated at us, which he was. In addition, Stoner refused to attend any of the Board of Directors meetings for the first year and a half after the acquisition. In mid-1960, Rod Phillips and his son Bill, both of whom had previously worked for Stoner Manufacturing, resigned as engineers for Vendo and solicited Stoner’s financial support. Phillips requested Stoner’s assistance in covering the development of the Lektro-Vend vending machine. Stoner provided the Phillips’ with interest-free loans, which aggregated some $200,000.00, during 1961 and 1962. In 1961, when two more Vendo employees (and former Stoner Manufacturing employees) resigned, they joined Rod and Bill Phillips on the research and development project and received monthly salaries aggregating $1,150.00 from Stoner Investments. Lektro-Vend was responsible for developing the Lektro-Vend FIFO machine. By October, 1962, the development work on this machine had progressed far enough to enable the company to exhibit a prototype of the machine at a trade show. The reaction from the industry was favorable. At the time of its development, the Lektro-Vend FIFO machine had three distinct advantages over other vending machines. The first of these advantages was that the FIFO machine could sell candy bars in the same order in which it had been stocked. The FIFO design produced savings to the operator by reducing the risk of having to vend or discard stale items. It also reduced the frequency of service calls to restock the machine. The second advantage of the model was that it permitted a continuous visible display of the item which was to be vended next. Thirdly, the Lektro-Vend model employed a type of construction which permitted more than one type of product to be stocked on a single conveyor, thus eliminating the need to exhaust one product line before replacing it with a second. While each of these features had been in existence for some years, Lektro-Vend was the first to combine all of them in a single machine having a practical design. In 1971, Lektro-Vend began manufacturing a freeze-dried coffee vending machine and, since 1976, has manufactured a glass-front, general merchandising vending machine. Lektro-Vend’s sales and net income after taxes for the fiscal years ending July 31, 1965 through 1977 are set out in the following table: Fiscal Year Ending July 31 Sales Net Income (Loss) After Taxes 1965 531.000 ($120,000) 1966 815.000 ( 85,000) 1967 980.000 ( 119,000) 1968 1.361.000 ( 259,000) 1969 2.040.000 401,000 1970 1.968.000 97.000 1971 1.779.000 47.000 1972 2.767.000 67.000 1973 2.463.000 ( 201,000) 1974 2.841.000 ( 169,000) 1975 1.846.000 ( 360,000) 1976 1.775.000 ( 393,000) 1977 2.885.000 ( 129,600) In December, 1962, Stoner asked Elmer Pierson, Vendo’s Chairman of the Board, to be released from his employment contract, stating that he had an opportunity to invest in the manufacture and sale of the LektroVend machine. Vendo refused to release Stoner, but asked Stoner to negotiate on Vendo’s behalf with the Phillips’ to determine whether they had any interest in selling the LektroVend machine. Stoner wrote to one of Vendo’s Vice Presidents, Spencer Childers, stating that the Phillips would be willing to sell the machine for $1,500,000.00, since another company had offered that amount. In March, 1963, Stoner informed Vendo that he had told the Phillips that Vendo no longer had an interest in making the purchase. Childers wrote back stating that Vendo still had such an interest, but that the asking price was too high. Vendo stated that it would be willing to pay a price sufficient to cover development costs and to return a fair profit. In the summer of 1963, after Pierson’s inquiry, Stoner disclosed to Vendo that he had been loaning money to the Phillips, which loans had been paid back by Stoner’s sister-in-law. It appears, however, that Vendo had heard rumors of Stoner’s involvement with Lektro-Vend as early as the 1962 trade show. Elmer Pierson stated that Vendo executives and customers of Stoner had stated that Stoner “was bringing out the superlative in fine candy vending equipment” and that Stoner “apparently had a great interest in the Rod Phillips or the Lektro-Vend Company” and that Stoner “wanted to become more active in LektroVend.” Wagstaff testified that Vendo executives Pierson, Childers, and Carbaugh had told him “that Harry Stoner was financing Lektro-Vend to go into competition with Vendo.” In March, 1964, Stoner Investments contracted to sell to Lektro-Vend a new plant built by Stoner Investments. The purchase by Lektro-Vend was made with the proceeds of a bank loan which was advanced subject to an agreement by Stoner Investments to guarantee the repurchase of the property in the event of a default on the loan. On April 1, 1964, Stoner ceased being a director of Vendo and was not slated for re-election. On June 1, 1964, Stoner’s employment contract with Vendo expired and the contract was not renewed. On June 10, 1964, Lektro-Vend issued 5,000 shares of its stock to Mrs. Stoner, and on July 15, 1964 it issued 5,000 shares of its stock to Stoner Investments. In March, 1965, Stoner sent a letter to 50 vending machine operators in which he identified himself as the long time former president of the old Stoner Manufacturing Corp. and stated that he was now interested in Lektro-Vend. Stoner sent a copy of this letter to Pierson, who, in turn, forwarded it to Vendo’s general counsel Glenn Carbaugh with the notation that Stoner had gone “too far.” HISTORY OF THE PRIOR LITIGATION In August, 1965, Vendo, defendant herein, filed suit against Harry Stoner and Stoner Investments, plaintiffs herein, in Kane County, Illinois, charging them with breaching non-competition covenants and with theft of trade secrets. After a bench trial, the court found in favor of Vendo on December 16, 1966 and entered judgments against Harry Stoner in the amount of $250,000.00 and against both Harry Stoner and Stoner Investments in the amount of $1,100,000.00. Additionally, the court enjoined Stoner and Stoner Investments from further acts of competition. On January 30, 1969, the Illinois Appellate Court for the Second District held that no trade secrets were involved; that the non-competition covenants were valid and enforceable; that defendants, Stoner and Stoner Investments had breached those covenants; and, that the grant of injunctive relief was proper. Vendo Company v. Stoner, 105 Ill.App.2d 261, 245 N.E.2d 263 (2nd Dist. 1969). Additionally, the Court held that the trial court had erred in striking the affirmative defense based on the federal anti-trust laws but was correct in denying the defense based on the Illinois anti-trust laws. The case was remanded for a determination of damages and further proceedings. Upon remand, the defendants withdrew the affirmative defense based on the federal anti-trust laws. Thereafter, the trial court entered judgments totalling $7,363,-500.00 against Stoner and Stoner Investments. A second appeal followed in which the Appellate Court held that the trial court erred in the measurement of damages. The case was again remanded for assessment of damages in accordance with the Appellate Court’s original opinion. Vendo v. Stoner, 13 Ill.App.3d 291, 300 N.E.2d 632 (2nd Dist. 1973). On appeal to the Illinois Supreme Court, the Appellate Court was reversed and the trial court judgments were affirmed. However, in deciding the case, the Supreme Court found the judgments proper under a different theory. The Court held that Stoner had breached his fiduciary duties to Vendo and found the $7,363,500.00 in damages appropriate for this breach. Vendo Co. v. Stoner, 58 Ill.2d 289, 321 N.E.2d 1 (1974). In 1965, the instant action was filed by Stoner, Stoner Investments, and LektroVend in the federal district court, alleging various federal anti-trust violations by Vendo. The case lay dormant until 1975 pending a resolution of the state court litigation. In January, 1975, Vendo received from Chicago Title and Trust Company $582,-526.09, which was held under an escrow trust agreement and which Vendo applied toward Stoner’s payment of the state court judgments in favor of Vendo. On June 27, 1975, the federal district court granted plaintiffs’ motion for a preliminary injunction staying defendant’s efforts to collect its state court judgments until the merits of the federal suit could be determined. Lektro-Vend v. Vendo Co., 403 F.Supp. 527 (N.D.Ill.1975). On appeal, the Seventh Circuit affirmed the district court’s order granting a preliminary injunction. Lektro-Vend Corp. v. Vendo Co., 545 F.2d 1050 (7th Cir. 1976). On June 29, 1977, the Supreme Court reversed the Seventh Circuit’s affirmance of the district court’s order remanding the cause to the Seventh Circuit for further proceedings in conformity with their opinion. Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 97 S.Ct. 2881, 53 L.Ed.2d 1009 (1977). On August 19, 1977, the Court of Appeals remanded the case to the district court “for further proceedings in conformity with the opinion of the United States Supreme Court rendered on June 29, 1977.” A petition for rehearing was timely filed in the Supreme Court and denied on October 3, 1977. Nevertheless, on August 29, 1977, Stoner Investments filed proceedings under Chapter XI of the Bankruptcy Act, and an automatic stay was entered, enjoining Vendo and other creditors from enforcing their claims against Stoner Investments. Meanwhile, plaintiff’s herein advanced the position in the district court that the injunction which it had issued continued to be binding in spite of the Supreme Court’s opinion of June 29, 1977. Consequently, Vendo filed a motion in the district court asking that the preliminary injunction previously issued be formally dissolved. The district court refused to dissolve the injunction and stated that, if Vendo attempted to collect its state court judgments, it would be risking contempt proceedings. Thereafter, petitioner filed a motion for clarification in the Supreme Court, which that Court treated as a petition requesting the Supreme Court to mandamus the district court to dissolve the injunction. The Supreme Court held that the motion for clarification, actually being a motion for mandamus, did not comply with rules regarding a writ of mandamus and, accordingly, denied the petition for clarification of judgment without prejudice to the filing of a motion for leave to file a petition for mandamus. Vendo Company v. Lektro-Vend Corp., 434 U.S. 425, 98 S.Ct. 702, 54 L.Ed.2d 659 (1978). The mandamus petition did not issue, however, since the district court formally dissolved the injunction on April 6, 1978. Thereafter, Judge Eisen denied Vendo’s motion to dismiss the Bankruptcy Proceedings and to vacate the stay issuing from the Bankruptcy Court enjoining Vendo and other creditors from enforcing their claims against Stoner Investments. Vendo has appealed this decision. THE PRESENT LITIGATION The dispute in this case involves the purpose, effect, and legal significance of the acquisition of Stoner Manufacturing and the employment of Stoner by Vendo. On the one hand, plaintiffs contend that the sale and acquisition of Stoner Manufacturing are not now and never were legally effective because the acquisition agreement, including the employment contract of Stoner, violated the federal anti-trust laws. According to plaintiffs, Vendo’s sole purpose in acquiring Stoner Manufacturing was to eliminate Stoner, “the design genius”, from competition in the manufacturing and sale of vending machines. This anti-competitive intent, argues plaintiff, is demonstrated by Vendo’s exaction of over-broad restrictive covenants which, plaintiff maintains, constitute contracts in restraint of trade in violation of § 1 of The Sherman Act. Additionally, plaintiffs argue that Vendo’s anti-competitive purpose is also demonstrated by Vendo relegating Stoner to “senior citizen” status shortly after the acquisition took place; by removing Vendo’s Aurora Division, formerly Stoner Manufacturing, from under Stoner’s control; by refusing to release Stoner from his employment with Vendo so that he could become actively involved with the Phillips and Lektro-Vend; and by refusing to accept Stoner’s advice that Vendo purchase the Lektro-Vend machine. Plaintiffs also argue that Vendo’s knowing exaction of unenforceable and voidable restrictive covenants, and the subsequent enforcement of those covenants in the state court litigation, constitute overt acts in pursuit of Vendo’s attempt to monopolize in violation of section 2 of The Sherman Act. As a third argument, plaintiffs contend that the acquisition constituted a merger which substantially lessened competition in violation of Section 7 of the Clayton Act. Vendo, on the other hand, maintains first, that the covenants not to compete exacted from Stoner and Stoner Manufacturing do not constitute contracts in restraint of trade in violation of § 1 of The Sherman Act. Vendo argues that these covenants not to compete were not overbroad; were exacted, not to restrain competition, but rather to protect its purchase of Stoner Manufacturing and its employment of Stoner; and, were ancillary to the main sale and employment agreements. It is Vendo’s contention that their primary reason for obtaining these covenants was to insure that Stoner did not use Vendo’s money and facilities to go into competition with Vendo subsequent to the sale. Additionally, Vendo maintains that no adverse market impact resulted from these covenants. Also, contends Vendo, plaintiffs alleged antitrust claims are barred by the doctrine of in pari delicto. Second, Vendo maintains that there is no § 2 Sherman Act violation because there is no evidence that Vendo had the means to monopolize, and because the state court proceedings brought to enforce the non-competition covenants were justified on the grounds of Stoner’s breach of those restrictive covenants or breach of fiduciary duties. Third, Vendo argues that no § 7 Clayton Act violation exists because the acquisition was a valid product extension merger and had no anti-competitive impact. After hearing the evidence proffered at trial and reviewing all the materials and information submitted in this case, a summary of this court’s view of the events is as follows. Sometime between 1957 and 1959 after Stoner’s first offer to sell Stoner Manufacturing to Vendo, Stoner Manufacturing lost several of its important officers including Adelberg, who had been Stoner’s close associate and Executive Vice President. During this same period of time, Stoner’s health was failing, Stoner Manufacturing was failing, and the strain on Stoner in running the firm alone caused him to be concerned about the future management of Stoner Manufacturing, and the effect that continued loss of profits would have on its employees and shareholders. As a result, Stoner considered it advisable to sell Stoner Manufacturing and, consequently, Stoner approached Vendo for a second time as a likely purchaser. Since Vendo was in fact interested at this time in expanding its line of vending machines the parties were able to reach an agreement acceptable to each for the sale and acquisition of Stoner Manufacturing. Pursuant to the sale agreement, Vendo agreed to pay Stoner $3,400,000.00 in cash and deliver 60,000 shares of Vendo for the purchase of Stoner Manufacturing, including inventions, patents, drawings, designs, and research and development work. Included in the sale of Stoner Manufacturing were provisions for Vendo to lease the land and property of Stoner Manufacturing in Aurora, Illinois, with an option to buy on or after December 31, 1961. Additionally, Vendo agreed to pay all profits in excess of $250,000.00 realized from the use of assets being purchased and, for a period of ten years, 25% of the income received from the foreign production of the machines being acquired from Stoner Manufacturing. In exchange, Stoner Manufacturing was to refrain from competing with Vendo for a period of ten years. Stoner also entered into an employment agreement with Vendo whereby Vendo would pay Stoner $50,000.00 a year for five years for Stoner’s services as an officer of Vendo. Stoner would also serve as a director of Vendo without additional compensation. Additionally, Stoner could regulate his own hours consistent with his health. In exchange for this employment, Stoner agreed not to compete with Vendo for a period of ten years. Originally, these restrictive covenants were to run for a period of five years, but, because Stoner wanted a ten year payout, the restrictions were increased to cover the same ten year period. Shortly after the consummation of the sale, Stoner became dissatisfied with the arrangement apparently because he felt that Vendo was ignoring his advice and counsel and relegating him to “senior citizen status.” In addition, Vendo moved a large part of the Stoner Manufacturing operation, Vendo’s Aurora Division, to St. Louis contrary to Stoner’s expectations when he entered into the agreements. Several of Stoner’s former employees stayed behind, declining to make the transfer to St. Louis. Two or these employees, Rod and Bill Phillips, approached Stoner and successfully obtained his assistance in establishing Lektro-Vend, a new vending manufacturing company, which eventually produced a successful FIFO machine. Stoner gave, at the least, financial support and the property on which to establish the plant and took , a large financial stake in Lektro-Vend. By late 1962, after the successful exhibition of the Lektro-Vend machine, Stoner advised his former customers that he had gone into business with LektroVend and asked to be released from his employment contract with Vendo in order to pursue his investment in Lektro-Vend. Vendo refused. In 1965, after the expiration of Stoner’s employment with Vendo, Vendo filed suit in state court alleging that Stoner breached the restrictive covenants contained in both the sale and employment agreements. Vendo obtained judgments throughout the lower courts in its favor on the ground that Stoner had breached the restrictive covenants. Eventually, the Illinois Supreme Court upheld the judgments in the total amount of $7,363,500.00 in Vendo’s favor but on the grounds that Stoner had breached his fiduciary duties as an officer and director of Vendo. While not a party to these state court actions, one of the plaintiffs here, LektroVend, alleges it suffered in its business venture as a result of the state court judgments obtained against Stoner Investments, Lektro-Vend’s primary source of financial support. It is this alleged loss of sales and business that plaintiffs maintain constitute an injury cognizable under the federal antitrust laws. CONCLUSIONS OF LAW It is agreed that the jurisdiction of this court is founded on the Sherman and Clayton Acts, 15 U.S.C. §§ 1, 2, 4, 7, 15, 16, 18, and 26. The parties have agreed that the legal standard to be applied is one of federal law. See also, Schine Chain Theatres v. U. S., 334 U. S. 110, 119, 68 S.Ct. 947, 952, 92 L.Ed. 1245 (1948). First, before reaching the substantive anti-trust allegations, this court will consider the affirmative defenses raised by defendants. Contrary to defendant’s contentions, the doctrine of collateral estoppel does not bar this court from deciding factual issues de novo in the instant case as they relate to the anti-trust issues here presented. Defendants here contend that under the doctrine of collateral estoppel, this court is bound by the findings of fact of the state courts. In analyzing whether this court is collaterally estopped by a prior judgment or determination, four questions must be answered in the affirmative to support the application of that doctrine: 1) whether the issues sought to be concluded are the same as those involved in the prior action; 2) whether the issues involved were in fact litigated in the prior actions; 3) whether the issues involved were in fact judicially determined in the prior action; and 4) whether the judgment in the prior action was dependent upon the determination made of those issues. See, Moore’s Federal Practice, Vol. IB ¶ 0.443[1] p. 3902. In the instant case, it is clear that none of these questions may be answered in the affirmative. This is confirmed by the Illinois Supreme Court’s statement in Vendo v. Stoner, 58 Ill.2d 289, 321 N.E.2d 1, 12 (1974): At the original trial defendants [plaintiffs here] raised an affirmative defense and by way of counterclaim a charge that the sale agreement and the employment contract violated both the Illinois Antitrust Act (Ill.Rev.Stat. ch. 38, par. 60-1 et. seq. [1973]) and the Federal anti-trust laws (15 U.S.C. § 1 et. seq.). The latter charge was withdrawn by defendants on the remand, and references in the record indicate that at some point a suit was filed against plaintiff in the United States District Court for the Northern District of Illinois relating to the alleged violations of federal law. With respect to the state antitrust claim the appellate court on the first appeal affirmed the action of the trial court in striking the affirmative defense and counterclaim. On the remand defendants unsuccessfully sought to reinstate their defenses and counterclaim, and the appellate court again affirmed the judgment of the trial court in this respect. By leave of court the State of Illinois has filed a brief supporting defendants’ position on this issue. There is some dispute between the parties as to whether the first opinion of the appellate court was based on the theory that the Illinois act was preempted by the Federal antitrust laws or upon the inapplicability of the Illinois act because of the absence of a substantial impact in Illinois arising out of the acts complained of. We prefer to dispose of this issue on another ground, namely that the Illinois act, having been enacted in 1965, long after the contracts here in question were entered into, cannot properly form the basis of a counterclaim by defendants. From this passage, it is clear that the state court gave no consideration to the federal anti-trust claims presented here. Consequently, this court is not bound by the findings of fact made in the state courts, and must therefore determine the facts as they relate to the alleged anti-trust claims. Moreover, we note that there is authority for the broad proposition that “the grant to the district courts of exclusive jurisdiction over the action for treble damages should be taken to imply immunity of their decision from any prejudgment elsewhere.” Lyons v. Westinghouse, 222 F.2d 184, 189 (2d Cir. 1955) cert. denied 350 U.S. 825, 76 S.Ct. 52, 100 L.Ed. 737; Mach-Tronics, Inc. v. Zipoli, 316 F.2d 820 (9th Cir. 1963). As a practical matter, however, this court notes that our findings of facts, which overlap the findings made in the state courts, do not differ substantially from the findings previously made. Defendant also contends that plaintiffs, Stoner and Stoner Investments, are barred from seeking damages under the doctrine of in pari delicto. It is defendant’s claim that, since Stoner and Stoner Manufacturing were willing, knowledgeable participants and represented by counsel in negotiating the 1959 agreements, they must, as a consequence, be held equally responsible for the final terms of those agreements, and, therefore, be barred from challenging any aspect of these agreements under the anti-trust laws. This court cannot say, however, that the instant facts support the application of the in pari delicto defense. In Perma-Life Mufflers, Inc. v. International Paper Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968), the Supreme Court held that the doctrine of in pari delicto was not a defense to an anti-trust action. Although the Per-ma-Life Court noted that there may possibly be exceptions to this general rule, the record in the instant case does not support defendant’s contention that the facts in the instant case fall within the exceptions delineated in Perma-Life. There is no evidence in the record, for instance, that plaintiffs actively or actually favored or supported the ten year restrictive covenants that became the terms of the final agreements. On the contrary, here, as in the Perma-Life case, these clauses “were quite clearly detrimental to their interests, and they alleged that they had continually objected to them.” 392 U.S. at 139, 88 S.Ct. at 1985. This record does not support the conclusion that plaintiffs were “collaborator(s), or co-adventure^s), or true particeps criminis” with respect to the restrictive covenants which now form the basis of the present complaint. Consequently, defendant’s in pari delicto defense must be rejected. Defendants next contend that the claims here are barred by the four year statute of limitations under § 4B of the Clayton Act. 15 U.S.C. § 15b. However, it is well settled that the period of this statute of limitations commences to run from the last overt act of the alleged conspiracy. Zenith Radio Corporation v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1970); Weber v. Consumers Digest, Inc., 440 F.2d 729, 731 (7th Cir. 1971). Thus, while the execution of the 1959 agreements, which forms the basis of plaintiff’s claims, fall outside of the applicable time period, the filing of the state court suits in 1965 constitutes the last alleged overt act committed pursuant to the conspiracy charged, and, consequently, the filing of this action in 1965 was well within the four year statute of limitations period. Moreover, it has been held that under § 4B the statute begins to run at the time the plaintiff suffers injury and not necessarily at the time the merger is consummated. See, Metropolitan Liquor Co, Inc. v. Heublein, Inc., CCH 1970 Trade Cases ¶ 72,990 (Wisc.1969). In the instant case, the alleged anti-trust injury suffered by plaintiff was the collection of the state court judgments which did not occur until 1974 when the Illinois Supreme Court upheld the damages award. Consequently, the instant action is not barred under § 4B of the Clayton Act. We turn now to a consideration of the substantive anti-trust claims. First, this court must determine the relevant geographic and product markets, a determination necessary for purposes of analyzing both the Sherman Act and the Clayton Act claims. See, e. g. U. S. v. E. I. duPont de Nemours and Co., 351 U.S. 377, 394, 76 S.Ct. 994, 1006, 100 L.Ed. 1264 (1956); U. S. v. E. I. duPont de Nemours and Co., 353 U.S. 586, 593, 77 S.Ct. 872, 877, 1 L.Ed.2d 1057 (1957); and Brown Shoe Co. v. U. S., 370 U.S. 294, 324, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). For purposes of defining a relevant product market, or “line of commerce,” under §§ 1 and 2 of the Sherman Act and under § 7 of the Clayton Act, Department of Justice Guidelines provide the following criteria: The sales of any product or service which is distinguishable as a matter of commercial practice from other products or services will ordinarily constitute a relevant product market, even though, from the standpoint of most purchasers, other products may be reasonably, but not perfectly, interchangeable with it in terms of price, quality, and use. On the other hand, the sales of two distinct products to a particular group of purchasers can also appropriately be grouped into a single market where the two products are reasonably interchangeable for that group in terms of price, quality, and use. In this latter case, however, it may be necessary also to include in the market the sales of one or more other products which are equally interchangeable with the two products in terms of price, quality, and use from the standpoint of that group of purchasers for whom the two products are interchangeable. Trade Reg.Rep. ¶ 4430, par. 3(i) at 6682. In Brown Shoe Co., Inc. v. U. S., 370 U.S. 294, 325, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962), the Supreme Court set forth the critical elements to be considered in determining valid product markets and potential submarkets: The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it. However, within this broad market, well-defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes. United States v. E. I. duPont de Nemours & Co., 353 U.S. 586, 593-595, 77 S.Ct. 872, 877, 1 L.Ed.2d 1057. The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors. See also, United States v. E. I. duPont de Nemours & Co., 351 U.S. 377, 399, 76 S.Ct. 994, 1001, 100 L.Ed. 1264 (1956); Sargent-Welch Scientific Co. v. Ventron Corp., 567 F.2d 701, 710 (7th Cir. 1977), cert. denied 439 U.S. 822, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978); and Bendix Corporation v. Balax, Inc., 471 F.2d 149, 161 (7th Cir. 1972) cert. denied 414 U.S. 819, 94 S.Ct. 43, 38 L.Ed.2d 51 (1973). Recently, in Sargent-Welch, supra, the Seventh Circuit noted that: The most important of these factors is uniqueness of the product’s functions and therefore its uses. If two products are ‘reasonably interchangeable by consumers for the same purposes,’ they are considered to be in the same market. [Citations omitted]. We have said on two relatively recent occasions, however, that a market definition ‘which ignores the buyers and focuses on what the sellers do, or theoretically can do, is not meaningful.’ Cass Student Advertising, Inc. v. National Education Advertising Service, Inc., 516 F.2d 1092, 1095 (7th Cir. 1975), cert. denied 423 U.S. 986, 96 S.Ct. 394, 46 L.Ed.2d 303, quoting from L. G. Balfour Co. v. FTC, 442 F.2d 1, 11 (7th Cir. 1971), which in turn quotes from United States v. Bethlehem Steel Corp., 168 F.Supp. 576, 592 (S.D.N.Y.1958). 567 F.2d at 710. Plaintiffs, relying on Seeburg Corporation v. Federal Trade Commission, 425 F.2d 124, 126 (6th Cir. 1970), cert. denied, 400 U.S. 866,91 S.Ct. 104, 27 L.Ed.2d 105 (1970), argue that the relevant product market includes coin operated vending machines for food, beverages, and tobacco products. In support of this proposed market, plaintiffs contend that the “location is the market,” because all vending machines compete for space at vending machine locations and therefore, have a similarity of use. Additionally, plaintiffs assert that there is a similarity in the channels of distribution employed by manufacturers within this market; that there is a similarity as to product characteristics and as to methods of production of vending machines; and that all vending machines sell products which satisfy refreshment needs of consumers at vending locations. Defendant, on the other hand, argues that plaintiffs’ proposed definition of the market is unsupportable because it ignores the fundamental distinction between two basic classes of customers for vending machines, which, defendant argues, properly characterizes the competitive realities of the market place and accordingly meets the applicable legal standards laid down by the Supreme Court in duPont and Brown Shoe, supra. Defendant would define the product market according to two classes of customers for vending machine manufacturers: soft drink bottlers (e. g., the Coca-Cola bottling companies), which only purchase machines that vend soft drinks, and vending service companies, customarily referred to in the trade as “operators”, which purchase vending machines for the sale of food, beverages, and other items typically manufactured by others, including vending machines for hot, cold, and frozen foods, dairy products, coffee, candy, pastry, snacks, ice, soft drinks, and cigarettes. Despite defendant’s contention to the contrary, this court does not perceive a significant dispute between the parties as to the appropriate product market for purposes of this case. Whether we view the overall product market from the standpoint of the “location” as plaintiff suggests, or from the standpoint of the customers served as defendant suggests, the product market in the instant case consists of all coin-operated vending machines for the sale of food, beverages, and cigarettes, including vending machines for hot, cold, and frozen foods, dairy products, coffee, candy, pastry, snacks, ice, soft drinks, and cigarettes. It is clear to this court that whether we focus on the two different customers for vending machines, bottlers and operators; as defendant argues, or the location as plaintiffs argue, the reasonable interchangeability of use or cross-elasticity of demand between the product itself and substitutes for it are the same whether the manufacturer is selling to different operator customers (as opposed to bottlers) or is competing for space at locations for vending machines. The parties agree that the geographic market encompasses the entire United States. As the following analysis demonstrates, this court must conclude that the requisite anti-trust injury has not been demonstrated by plaintiffs and that no anti-trust violations have been shown. In essence, plaintiffs claim of antitrust injury is as follows. In 1965, Lektro — Vend possessed the probable ability to manufacture vending machines which would be superior to other competitive equipment. However, argues plaintiff, Lektro-Vend’s potential was nipped in the bud when Vendo successfully obtained judgments in the state courts against Stoner and Stoner Investments, Lektro-Vend’s chief source of financial support. Because Lektro-Vend was rendered unable to effectively compete as a consequence of these judgments, Vendo is guilty of anti-competitive conduct. In other words, if Vendo had not acquired Stoner Manufacturing and employed Stoner; if Vendo had not exacted non-competition covenants from both Stoner and Stoner Manufacturing; and, if Vendo had not enforced those covenants against Stoner and Stoner Manufacturing, then Lektro-Vend would have become a significant competitor in the vending machine industry. Consequently, maintains plaintiff, Vendo’s acquisition of Stoner Manufacturing and employment of Stoner, including the exaction and enforcement of allegedly overbroad non-competition covenants, must violate the anti-trust laws due to the later effect on Lektro-Vend.