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EXHIBIT 10.19
Execution Copy
AMENDMENT TO NON-COMPETITION AGREEMENT
AMENDMENT dated as of __________ ____, 1999 (the "Amendment") to the
Non-Competition Agreement, dated as of February 24, 1995 (the "Non-Competition
Agreement"), among Nu-kote Holding, Inc., a Delaware corporation ("Nu-kote"),
Pelikan Produktion AG, a Swiss stock company ("Produktions"), Xxxxx-Werke GmbH,
a German limited liability company ("Greif"), Pelikan Scotland Ltd., a limited
liability company organized under the laws of Scotland ("Pelikan Scotland") and
Pelikan Holding AG, a Swiss stock corporation ("Pelikan").
W I T N E S S E T H:
WHEREAS, Nu-kote desires to induce Pelikan to amend the Trademark
License Agreement dated as of February 24, 1995 among Nu-kote, Pelikan and
certain of Pelikan's Affiliates and to enter into a new trademark license
agreement with the purchaser from Nu-kote of certain of Nu-kote's assets and
business outside of the United States of America (including the District of
Columbia, the Commonwealths of Puerto Rico, the Northern Mariana Islands, and
the Virgin Islands of the United States, and the unincorporated United States
territories of American Samoa and Guam), Mexico and Canada, and Pelikan is
unwilling to do so unless Nu-kote and the other parties hereto enter into this
Amendment; and
WHEREAS, Nu-kote, along with one or more of its Affiliates, to whom
Nu-kote has assigned certain rights under the Non-Competition Agreement,
Produktions, Greif, Pelikan Scotland and Pelikan have agreed to amend the
Non-Competition Agreement, subject to the terms and conditions of this
Amendment;
NOW, THEREFORE, NOW, THEREFORE, in consideration of the mutual
covenants made herein and in the First Amendment to Trademark License among
Nu-kote, Pelikan and certain of Pelikan's Affiliates, and in order to induce and
in consideration of the execution and delivery by Pelikan and certain of its
Affiliates of a Trademark License Agreement with Produktions, and of the mutual
benefits to be derived hereby and thereby, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used herein without definition are
used as defined in the Non-Competition Agreement or in the Asset and Stock
Purchase Agreement, as amended, dated as of November 15, 1994 (the "Purchase
Agreement"), between Nu-kote and Pelikan.
2. AMENDMENT TO NON-COMPETE COVENANT. Section 1, paragraph (a) of the
Non-Competition Agreement is hereby amended by replacing "world" where it
appears in the thirteenth line of such paragraph and substituting therefor
"United States of America (including the District of Columbia, the Commonwealths
of Puerto Rico, the Northern Mariana Islands, and the Virgin Islands of the
United States, and the unincorporated United States territories of American
Samoa and Guam), Mexico and Canada."
3. APPROVAL OF BANKRUPTCY COURT. This Amendment shall be effective
immediately, without further action by the parties, when an order approving
Nu-kote's agreement hereto has been entered by the United States Bankruptcy
Court for the Middle District of Tennessee, Nashville Division, in the matter of
In Re: Nu-kote Holding, Inc., Nu-kote
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Imperial, Ltd., Nu-kote International, Inc., Nu-kote Imaging International,
Inc., International Communication Materials, Inc., Future Graphics, Inc., and
Nu-kote Latin America, Inc., substantively consolidated under BK. NO.
98-10600-KL3-11 and has become a Final Order. The term "Final Order" shall mean
an order or judgment that has not been modified, vacated or stayed, and as to
which (a) the time to appeal or seek review, rehearing, reargument or certiorari
has expired and as to which no appeal or petition for review, rehearing,
reargument or certiorari proceeding is pending, or (b) an order or judgment
which has been appealed, has been affirmed on appeal or certiorari and as to
which appeal or certiorari the time for further appeal or certiorari has
expired, provided, such an order shall be a "Final Order" whenever (i) a period
of ten days after the entry thereof on the Clerk's docket shall have expired
(ii) no stay of the order shall be in effect, and (iii) Pelikan shall so elect
by written notice to Nu-kote. In the event such approval is not received, for
any reason, on or before ________ ___, 1999, this Amendment shall be null and
void and of no force or effect whatsoever.
4. MISCELLANEOUS. Except as expressly amended and modified hereby, and
except as otherwise agreed in writing, the Non-Competition Agreement remains in
full force and effect in accordance with its terms. The headings contained in
this Amendment are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Amendment. The recitals to this Amendment
are, and shall be construed to be, an integral part of this Amendment. This
Amendment may be executed in several counterparts, each of which shall
constitute one and the same instrument. This Amendment shall be governed in all
respects, including validity, interpretation and effect, by the laws of the
State of New York without giving effect to the conflict of laws rules thereof.
IN WITNESS WHEREOF, the parties, on behalf of themselves and their
respective Affiliates, have caused this Amendment to be duly executed by their
respective duly authorized representatives as of the date first above written.
PELIKAN HOLDING XX XXXXXXX PRODUKTIONS AG
By: By:
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Its: Its:
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XXXXX-WERKE GmbH
By: By:
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Its: Its:
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NU-KOTE HOLDING, INC. PELIKAN SCOTLAND LTD.
By: By:
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Its: Its:
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