NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
THIS NON-COMPETITION AND NON-DISCLOSURE AGREEMENT (this "Agreement") is
made as of April 1, 1998, by and between RENAISSANCE GOLF PRODUCTS, INC., a
Delaware Corporation ("Renaissance"), and THE BALL MARKETING COMPANY, LLC
("LLC"), a Georgia limited liability company, XXXXXXX XXXXXXXXXX, an individual,
XXXXXXX XXXXXX, an individual, and XXXX XXXXXXXX, an individual (collectively
referred to as the "Undersigneds").
This Agreement is entered into with reference to the following facts:
A. The LLC has been engaged in the business of designing, developing, and
distributing golf balls through a network of independent distributors (the
"Business").
B. Pursuant to the Asset Purchase Agreement of April 1, 1998, by and among
the LLC, certain Interestholders of the LLC, and the Purchaser (the "Purchase
Agreement"), the Purchaser is purchasing substantially all of the assets of the
LLC and the business of the LLC as a going concern.
C. The Undersigneds are the LLC and Interestholders of the LLC who will
derive substantial benefit from the transactions contemplated by the Purchase
Agreement.
D. As a result of the Undersigneds' prior business activities and prior
association with and/or employment by the LLC, the Undersigneds have detailed
knowledge and posses confidential information concerning the business and
operations of the LLC.
E. After the closing of the transaction contemplated in the Purchase
Agreement, the individual Undersigneds desire to continue to engage in the
Business, subject, however, to the terms, conditions, and limitations set forth
in this Agreement.
F. In order to induce the Purchaser to consummate the transactions
contemplated by the Purchase Agreement, the Undersigneds have agreed and the
Purchaser has required the Undersigneds to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. RESTRICTIVE COVENANTS.
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1.1 The Undersigneds acknowledge and agree that: (i) the business
contacts, customers, suppliers, technology, know-how, trade secrets, marketing
and distribution techniques, and other aspects of the business of the LLC have
been of value to the LLC, and have provided the LLC (and will hereafter provide
the Purchaser) with substantial competitive advantage in the operation of its
business, and (ii) by virtue of their previous relationships with the LLC as
officers, managers, Interestholders, employees, and/or affiliates, the
Undersigneds have detailed knowledge and possess confidential information
concerning the business and operations of the LLC.
1.2 It is hereby agreed that none of the Undersigneds shall, directly, or
indirectly, for itself or themselves, or through or on behalf of any other
person or entity including, without limitation, family members, trusts, or other
business or estate planning arrangements engage in the following:
(a) at any time, divulge, transmit, or otherwise disclose or cause to
be divulged, transmitted, or otherwise disclose, any business contacts, client,
distributor, or customer lists,
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technology, know-how, traded secrets, marketing techniques, supplier contacts,
contracts, or other confidential or proprietary information of the LLC of
whatever nature existing on or prior to the date hereof (provided, however, that
for purposes hereof, information shall not be considered to be confidential or
proprietary if (i) it is a matter of common knowledge or public record, (ii) it
is generally known in the industry in which the Business is engaged, or (iii)
the Undersigneds can demonstrate that such information was already known to the
recipient thereof other than by reason of any breach of any obligation under
this Agreement or any other confidentiality or non-disclosure agreement);
(b) at any time during the period of the Purchase Agreement and for
two years following the termination of the Purchase Agreement for any reason
(the "Restrictive Period"), invest, carry on, engage, or become involved, either
as an employee, agent, advisor, officer, director, stockholder (excluding
ownership of not more than 3% of the outstanding shares of a publicly held
Corporation if such ownership does not involve managerial or operational
responsibility), manager, partner, joint venture, participant, or consultant, in
any business enterprise (other than the Purchaser or any of its subsidiaries,
affiliates, successors, or assigns) which (i) is located or operating, or
soliciting customers located in the United States of America or any other
country in which Purchaser sells products, and (ii) is or becomes, at any time
during the Restrictive Period, engaged in the manufacture, assembly, sale,
marketing, advertising, and distribution of golf balls or any golf related
products. For purposes of this Agreement, golf related products shall mean
products that are marketed or sold by Purchaser; and
(c) at any time during the Restrictive Period initiate contact with
any employee, consultant, or independent contractor of Purchaser for the purpose
of hiring away such employee, consultant, or independent contractor from
Purchaser, or solicit customers of the Purchasers.
1.3 The parties acknowledge that Xxxx Xxxxxxxx is currently working with
Admark Systems which has some involvement with the golfing industry. Xx.
Xxxxxxxx may continue to work with Admark for so long as the Company does not
directly compete with the Purchaser's business.
2. CORPORATE AND TRADE NAMES.
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From and after the date hereof, the Undersigneds will not utilize the
names "The Ball Company," "The Ball Marketing Company," or any confusingly
similar names in connection with any business activities from and after the date
hereof.
3. CONSIDERATION.
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In consideration for the covenants contained herein, the Purchaser has
agreed to enter into the Asset Purchase Agreement to be executed in conjunction
with this Agreement.
4. REMEDIES.
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4.1 In the event of a breach of this Agreement by any of the Undersigneds,
the precise amount of damages that may be suffered by the Purchaser of reason of
such breach may be difficult to ascertain; accordingly, the parties hereby agree
that, as liquidated damages (and not as a penalty) in respect of any such
breach, the Purchaser, in its sole discretion, may choose to demand the sum of
$20,000 as the sole and exclusive damages for the breach. The parties agree
that the foregoing provision for liquidated damages, if chosen by Purchaser,
constitutes a fair and reasonable estimate of the actual damages that might be
suffered by reason of a breach of this Agreement by the Undersigneds.
Alternatively, and in lieu of its right to demand liquidated damages as
aforesaid, the
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Purchaser may elect to pursue and recover all actual damages, incurred by the
Purchaser as a result of such breach, insofar as they can be determined.
4.2 The Undersigneds and the Purchaser hereby further acknowledge and
agree that any breach by any of the Undersigneds, directly or indirectly, of the
foregoing restrictive covenants will cause the Purchaser irreparable injury for
which there is not adequate remedy at law. Accordingly, each of the
Undersigneds expressly agrees that, in the event of any such breach or any
threatened breach hereunder by any of the Undersigneds, directly or indirectly,
the Purchaser shall be entitled, in addition to any and all other remedies
available (including but not limited to the damages provided for in paragraph
4.1 above), to seek and obtain injunctive and/or other equitable relief to
require specific performance of or prevent, restrain, and/or enjoin a breach
under the provisions of this Agreement.
5. MISCELLANEOUS.
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5.1 Governing Law. This Agreement shall be construed under and governed
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by the laws of the State of Utah without regard to any conflict of law
provisions.
5.2 Assignment. The benefits and obligations of any party to this
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Agreement may not be assigned, except upon the written consent of the other
party. This Agreement shall be binding upon, and shall be enforceable by and
inure to the benefit of, the parties named herein and their respective
successors and assigns.
5.3 Entire Agreement. This Agreement and the documents and other
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agreements referenced herein contain the entire Agreement between the parties
with respect to the subject matter hereof; all representations, promises, and
prior or contemporaneous understandings between the parties with respect to the
subject matter hereof, are merged into and expressed in this Agreement and such
documents and other agreements; and any and all prior agreements between the
parties with respect to the subject matter hereof are hereby canceled.
5.4 Amendment. This Agreement may be amended, modified, or supplemented
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only by an instrument in writing signed by the parties to this Agreement.
5.5 Notices. All notices, requests, demands, and other communications
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hereunder shall be deemed to have been duly given on the date received if
personally delivered, telecopied, or mailed by commercial express mail service:
TO UNDERSIGNEDS: THE BALL MARKETING COMPANY LLC
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxxxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Xxxx Xxxxxxxx
0000 Xxxxxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Xxxxxxx Xxxxxx
0000 Xxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
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TO PURCHASER: RENAISSANCE GOLF PRODUCTS, INC.
00000 Xxxxx Xxxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxx 00000
Attn: Xxxx Xxxxxxx
or to such other address or telecopier number which either party may notify the
other party as provided above.
5.6 Headings. The headings of the Sections of this Agreement are for the
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convenience of reference only, and do not form a part hereof, and in no way
modify, interpret, or construe the meanings of the parties.
5.7 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original and all of which shall
constitute one Agreement.
5.8 Waiver; Severability. The failure of any of the parties to this
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Agreement to require the performance of term or obligation under this Agreement
or the waiver by any of the parties to this Agreement of any breach hereunder
shall not prevent subsequent enforcement of such term or obligation or be deemed
a waiver of any subsequent breach hereunder. In case any one or more of the
provisions of this Agreement shall for any reason be held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if such invalid or illegal or unenforceable
provision or part of a provision had never been contained herein.
5.9 Dispute Resolution. Any controversy, claim, or dispute among the
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parties hereto arising out of or related to this Agreement or the breach hereto,
which cannot be settled amicably by the parties, shall be submitted for
mediation in Salt Lake City, Utah. In the event mediation is unsuccessful, the
parties consent to the exclusive jurisdiction of an appropriate court within
Salt Lake County, State of Utah, to hear and decide any controversy, claim, or
dispute hereunder. The prevailing party in any legal action shall be entitled
to recover its reasonable attorneys' fees and costs, as determined by the trial
court.
5.10 Company Authority. The Undersigned signing on behalf of the LLC
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represents and warrants that he has the requisite company authority from the
LLC's management committee to execute this Agreement on behalf of the LLC, and
that such signature is intended to be and is binding upon the LLC.
Continued on the next page.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
PURCHASER: UNDERSIGNED:
RENAISSANCE GOLF PRODUCTS, INC. THE BALL MARKETING CO. L.L.C.
a Delaware corporation a Georgia limited liability company
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxx Xxxxxxxxxx
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Xxxx X. Xxxxxxx, Xxxxxxx Xxxxxxxxxx,
Chief Executive Officer Manager
UNDERSIGNED INTERESTHOLDERS:
/s/ Xxxxxxx Xxxxxxxxxx
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XXXXXXX XXXXXXXXXX
/s/ Xxxxxxx Xxxxxx
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XXXXXXX XXXXXX
/s/ Xxxx Xxxxxxxx
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XXXX XXXXXXXX
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