NON-COMPETITION AGREEMENT
THIS AGREEMENT is made and entered into as of April 1, 1997, by and
between XENOTECH, INC. and XENOTECH RENTS, 0000-0000 Xxxxxxxx Xxxxxx, Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000, both California corporations (collectively the
"Seller"), XXXXXXX XXXX, 000 Xxxxxxx Xxxxx, Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx
00000, a California resident (the "Stockholder"), and BALLANTYNE OF OMAHA,
INC., 0000 XxXxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, a Delaware corporation
(the "Buyer").
WHEREAS, the parties hereto have entered into an Asset Purchase
Agreement dated as of the 1st day of April, 1997 (the "Asset Purchase
Agreement") wherein Seller has agreed to sell, and Buyer has agreed to buy,
all of the operating assets of Seller; and
WHEREAS, it is specifically provided that as an integral part of said
transaction, an agreement not to compete would be set forth in a separate
agreement between the parties, and that this Agreement is in fulfillment of
the same.
NOW, THEREFORE, for the consideration mentioned in the Asset Purchase
Agreement, and in consideration of the purchase by Buyer of substantially all
of the operating assets of Seller, which is in the business of the design,
manufacture, marketing, distribution, lease and sale of lighting equipment,
and in consideration of Two Hundred Fifty Thousand Dollars ($250,000) to be
paid to Stockholder as hereinafter provided, the parties agree as follows, to
wit:
1. Seller and Stockholder jointly and severally agree that for a period
of time beginning on April 1, 1997, and ending on a date which is three (3)
years after the date of the termination of Stockholder's employment with the
Buyer, or on April 1, 2002, whichever date shall be later, Seller and
Stockholder, or either of them, shall not, without Buyer's prior written
consent, directly or indirectly, own, manage, operate, join, control, be
employed by, or participate in the ownership, management, operation or
control of, or assist any other person, firm, or corporation as an employee
or otherwise, in the ownership, management, operation or control, financial
or otherwise, of any business or organization anywhere in the world which,
directly or indirectly, competes with the lighting business of the Buyer or
its affiliated or subsidiary companies; and Seller and Stockholder, or either
of them, shall not, directly or indirectly, by themselves or through others,
make, manufacture, assemble, sell, distribute or otherwise deal in lighting
products similar to those manufactured, assembled, sold or distributed by
Buyer. Stockholder hereby agrees that he shall not, as a director, an
officer, and the sole stockholder of Seller, take any action which would
cause the Seller to be in violation of any provision of this Agreement.
2. Seller specifically acknowledges that the market for its lighting
business is global and that the restrictions on competition herein contained
are fair and reasonable.
3. Seller and Stockholder specifically acknowledge that a breach by them
or either of them of this Agreement would cause Buyer irreparable harm which
could not be adequately compensated by monetary damages, and therefore,
Seller and Stockholder expressly agree that Buyer shall be entitled to
injunctive or other equitable relief from any
court having jurisdiction of the parties to prevent a breach of this
Agreement, and that said injunctive or other equitable relief shall be in
addition to any and all other remedies which may be available to Buyer.
4. As consideration for this Non-Competition Agreement, Buyer agrees to
pay to Stockholder the total sum of Two Hundred Fifty Thousand Dollars
($250,000), payable in five (5) annual installments of Fifty Thousand Dollars
($50,000) each, the first such installment being due one year after the date
hereof, such installments continuing on the same date each year until said
total sum shall be paid in full. Payment of such installments shall be
subject to the terms and conditions of an Escrow Agreement between the
parties hereto, executed simultaneously herewith, the terms and conditions of
which are incorporated herein by this reference.
5. This Agreement shall be construed, interpreted and the rights of the
parties determined in accordance with the laws of the State of California
(without reference to the choice of law provisions of California law.)
6. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, and no other
person shall have any right, benefit or obligation hereunder, as a
third-party beneficiary or otherwise.
7. In the event that any one or more of the provisions contained in this
Agreement or in any other instrument referred to herein shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect, then
to the maximum extent permitted by law, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement or
any other such instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on their respective behalf by their respective officers
thereunto duly authorized, all as of the day and year first above written.
XENOTECH, INC. XENOTECH RENTS
"Seller" "Seller"
By /s/ Xxxxxxx Xxxx By /s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx, Its President Xxxxxxx Xxxx, Its President
XXXXXXX XXXX BALLANTYNE OF OMAHA, INC.
"Stockholder" "Buyer"
/s/ Xxxxxxx Xxxx By /s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx
Vice Chairman
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