NON-COMPETITITON AGREEMENT
NON-COMPETITITON
AGREEMENT
THIS
AGREEMENT is made as of the 10th day of December, 2008.
BETWEEN:
PROVIANT TECHNONOLGIES, INC.
(hereinafter called the “Vendor”)
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and-
SPORTS SUPPLEMENT ACQUISITION GROUP,
INC. (hereinafter called the “Corporation” or “SSAG”)
WHEREAS
SSAG has entered into an Asset Purchase, Technology Transfer and License
Agreement (the “Purchase Agreement”) dated as of December 10, 2008, whereby SSAG
shall purchase certain assets of the Vendor;
AND
WHEREAS consummation of the transactions contemplated by the Purchase Agreement
by SSAG is conditional on, inter alia, the execution and
delivery of this Agreement by the Vendor;
AND
WHEREAS the Vendor is a party to the Purchase Agreement and is obtaining
consideration thereunder;
NOW,
THEREFORE, in order to facilitate the consummation of the transactions
contemplated by the Purchase Agreement, in consideration of the sum of Ten
Dollars ($10.00) and in
consideration of the premises and the covenants hereinafter set forth, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
acknowledge, agree and covenant as follows:
ARTICLE
1
INTERPRETATION
1.1 Definitions
In this
Agreement, unless otherwise defined here, capitalized terms shall have the
meanings given to such terms in the Purchase Agreement Certain other
terms are defined in this Agreement, including the recitals and this Section,
and the words and phrases set forth below shall have the following meanings,
namely:
“Current
Businesses Acquired by SSAG” means the business of the Vendor with respect to
the sale of the Products solely in the sports nutrition market;
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“Proprietary
Information” means confidential information owned, controlled or in the
possession of the Corporation and the Vendor, including, without
limitation:
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(i)
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trade
secrets and confidential or proprietary information, knowledge, documents
or materials owned, developed or possessed by the Corporation or the
Vendor, whether in tangible or intangible form, which are not publicly
disseminated information; and
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(ii)
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information
pertaining to the Corporation’s or the Vendor’s research, operations,
customers (including identities of customers and prospective customers,
identities of individual contacts at business entities which are customers
or prospective customers, and their respective preferences, businesses or
habits), business relationships (including those with suppliers and
others), products (including prices, costs, markets, sales or contents),
mailing lists, marketing or sales strategies, financial information or
measures, business methods, future business plans, databases, matters of a
technical nature (including know-how, data, formulae, secret processes and
designs and models), operating procedures, knowledge of the Corporation’s
or the Vendor’s organization, and other information owned, developed or
possessed by or on behalf of the Corporation but does not include
information, knowledge, documents or materials which become public
knowledge through no fault or omission of the
Vendor.
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Notwithstanding
the foregoing, Proprietary Information shall not include information that is or
becomes a part of the public domain through no direct or indirect act or
omission of the Vendor.
“Purchase
Agreement” has the meaning ascribed to that term in the recitals;
“Products”
has the meaning given to such term in the Purchase Agreement;
“Restricted
Period” has the meaning ascribed to that term in Section 3.1; and
“Territory”
means the world.
1.2 Articles,
Sections and Headings
The
division of this Agreement into Articles, Sections and subsections and the
insertion of headings are for convenience of reference only and shall not affect
the construction or interpretation of this Agreement. Unless otherwise stated
specifically in this Agreement, any reference in this Agreement to an Article,
Section or subsection refers to the specified Article, Section or subsection of
this Agreement.
1.3 Rules of
Construction
Unless
the context otherwise requires:
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(a)
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words
importing the singular number only shall include the plural and vice versa
and words including the masculine gender shall include the feminine and
neuter genders and vice versa; and
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(b)
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the
word “including” means including without
limitation.
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ARTICLE
2
PROPRIETARY
AND CONFIDENTIAL INFORMATION
2.1 Proprietary
Information
The
Vendor acknowledges and agrees that:
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(a)
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it
is privy to the Proprietary
Information;
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(b)
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the
Proprietary Information is unique and valuable to the Corporation;
and
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(c)
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the
Corporation would suffer irreparable injury if the Proprietary
Information, or any portion thereof, was divulged to those in competition
with the Corporation.
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2.2 Confidentiality
Except
with the prior written approval of SSAG, the Vendor shall not:
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(a)
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directly
or indirectly, disclose any Proprietary Information to any person except
authorized personnel of SSAG or the Vendor or as required by law;
nor
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(b)
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publish
or make use of any Proprietary Information in any manner
whatsoever.
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2.3 Disclosure
of Proprietary Information
Prior to
any disclosure of the Proprietary Information which is required by law, the
Vendor, if permitted by law, shall give SSAG reasonable prior notice of any such
disclosure, and, if requested by and at the expense of SSAG, shall permit and
co-operate with any effort by SSAG to obtain a protective order or similar
protection. SSAG shall reimburse the Vendor for all reasonable costs it incurs
in assisting SSAG in seeking such an order.
ARTICLE
3
NON-COMPETITION
3.1 Non-Competition
For a period commencing on the Closing Date and continuing
thereafter until the seventh anniversary of the Closing Date (the
“Restricted Period”), the Vendor agrees that it shall not, directly or
indirectly, whether through a corporation, subsidiary or otherwise, individually
or in partnership, jointly or in conjunction with any person, firm, association,
syndicate, corporation or any other entity, whether as principal, agent,
employer, consultant, partner, or otherwise, do any of the following without the
consent of SSAG:
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(a)
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compete
with the Current Business Acquired by SSAG within the
Territory;
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(b)
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lend
money to, guarantee the debts and obligations of, invest in, or have any
other interest in (whether financial or otherwise) any person or entity
engaging in any business within the Territory which is competitive with
the Current Business Acquired by
SSAG;
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(c)
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directly
or indirectly solicit or attempt to solicit any employee of the
Corporation for the purpose of encouraging, enticing, or causing said
employee to terminate employment with the
Corporation;
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(d)
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directly
or indirectly solicit or attempt to solicit, without the prior written
consent of SSAG, not to be unreasonably withheld, any business or
non-employee of SSAG providing consulting, marketing or other services to
the Corporation or to not provide or cease to provide such services to the
Corporation;
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(e)
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directly
or indirectly take any action which could reasonably result in the
relations between the Corporation and its suppliers or customers to be
impaired; or
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(f)
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directly
or indirectly take any action which could reasonably be foreseen to be
detrimental to the Corporation, except that the Vendor may exercise or
enforce any of its rights and remedies against the Corporation arising
under this Agreement, the Purchase Agreement, the Transaction Agreements
or any other agreements entered into between the Vendor and the
Corporation.
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Notwithstanding
anything in this Agreement to the contrary, the parties acknowledge and
understand that the Vendor may continue, without restriction hereunder, (a) to
market to third parties 6-OXO, 11-OXO, 1-AD and Geranamine as ingredients, and
not as stand alone products, that, when combined with other active ingredients,
render such third party formulations distinctively different from any of the
Products (provided that the Corporation acknowledges that all third party
products containing any of the aforementioned ingredients of the Vendor as of
the date of this Agreement constitute distinctively different formulations), (b)
to develop and sell under its own label or otherwise any products to be marketed
outside of the sports nutrition market, and (c) subject to the terms of that
certain Right of First Refusal Agreement dated of even date herewith by and
between the parties, to market any new proprietary ingredient, whether as a
stand alone product or an ingredient, in the sports nutrition market or
otherwise.
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3.2 Material
Interest
The
Vendor agrees that the Corporation has a material interest in preserving the
relationships the Current Business Acquired by SSAG has developed with customers
against impairment by competitive activities of an existing or former director,
officer, employee, consultant or shareholder and Vendor shall use reasonable
commercial efforts to preserve such relationships for the benefit of the
Corporation. Accordingly, the Vendor agrees that the restrictions and covenants
in Articles 2 and 3 and the Vendor’s agreement to such restrictions and
covenants as evidenced by its execution of this Agreement constitute a material
inducement to SSAG entering into this Agreement and the Purchase Agreement and
that SSAG would not enter into this Agreement nor the Purchase Agreement absent
these inducements.
3.3 Independent
Covenants
The
Vendor agrees that the restrictions and covenants contained in Articles 2 and 3
are reasonable and necessary for the protection of the Corporation and each
shall be construed independently of any provisions of this Agreement and the
existence of any claim or cause of action by the Vendor against the Corporation,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Corporation of the covenants or restrictions
in this Agreement; provided however, that if any provision shall be held to be
illegal, invalid or unenforceable in any jurisdiction, this decision shall not
affect any other covenants or provisions of this Agreement or the application of
any other covenant or provision in respect of each year during which the other
covenants or provisions are to continue.
ARTICLE
4
INJUNCTIVE
RELIEF
4.1
Injunctive Relief
The
parties agree that as set out in Sections 3.2 and 3.3, the provisions of
Articles 2 and 3 are essential and reasonable for the protection of the
Corporation and, if breached, will result in irreparable harm to the
Corporation. Without prejudice to any and all remedies which may be available to
the Corporation, at law or in equity, injunctive relief is the only sufficient
relief for a breach of the covenants of the Vendor under Articles 2 or 3 and the
Vendor hereby agrees that the Corporation shall be entitled to injunctive
relief, including an interim injunction, in any court of competent jurisdiction,
to enforce any of the covenants of the Vendor in this Agreement, upon the breach
or threatened breach thereof, together with reimbursement of all reasonable
solicitor and client fees and other expenses incurred in connection
therewith.
ARTICLE
5
MISCELLANEOUS
5.1 Further
Assurances
Each of
the parties to this Agreement will, from time to time and at all times
hereafter, but without further consideration, do such further acts and deliver
all such further assurances, deeds and documents as shall be reasonably required
in order to fully perform and carry out the terms of this
Agreement.
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5.2 Governing
Laws
This
Agreement shall be governed by and construed in accordance with the laws of the
State of Illinois.
5.3 Counterparts
This
Agreement may be executed in one or more counterparts, including facsimile
transmission thereof, each of which shall be deemed an original and when so
executed all such counterparts taken together shall form one agreement and shall
be valid and binding on all parties to this Agreement.
5.4 Entire
Agreement
This
Agreement constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof and there are no other written or verbal agreements
or representations, warranties or covenants related hereto. This Agreement is
separately enforceable.
5.5 No
Waiver
The
failure of any party to this Agreement to insist upon strict performance of a
covenant in this Agreement or of any obligation in this Agreement, irrespective
of the length of time for which such failure continues, shall not be a waiver of
such party’s right to demand strict compliance in the future. No consent or
waiver, express or implied, to or of any breach or default in the performance of
any obligation in this Agreement shall constitute a consent or waiver to or of
any other breach or default in the performance of the same or of any other
obligation in this Agreement.
5.6 Enurement
This
Agreement shall be binding upon and shall enure to the benefit of each of the
parties to this Agreement and their respective trustees, receivers, legal
representatives, successors and assigns.
5.7 Notices
All
notices and other communications pursuant to this Agreement shall be in writing
and shall be deemed to have been duly given if delivered personally, sent by
telecopy, facsimile or overnight courier, or mailed by registered mail (postage
prepaid and return receipt requested), to the party to whom the same is so
delivered, sent or mailed at the following addresses (or at such other address
for a party as shall be specified by like notice):
Proviant
Technologies, Inc.
000 X.
Xxxxxxx Xx.
Xxxxxxxxx,
Xxxxxxxx 00000
Fax: (000)
000-0000
Attention:
Xxxxxxxxx Xxxxxxx, President
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Sports
Supplement Acquisition Group, Inc.
0000
Xxxxxxx Xxxx, Xxxxx 000
Xxxxx-Xxxxx,
XX X0X0X0
Fax:
(000) 000-0000
Attention:
Xxxxx Xxxxx, Chief Executive Officer
Notices
delivered personally or by telecopy or facsimile shall be deemed delivered as of
actual receipt, mailed notices shall be deemed delivered three days after
mailing and notices delivered by overnight courier shall be deemed delivered one
day after the date of sending. Any notice sent by mail will be promptly
confirmed by telecopy.
IN
WITNESS WHEREOF the parties to this Agreement have executed
this Agreement as
of the day and year first above written.
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PROVIANT
TECHNOLGIES, INC.
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SPORTS
SUPPLEMENT ACQUISITION GROUP,
INC.
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Per:
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/s/ Xxxxxxxxx Xxxxxxx |
Per:
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/s/ Xxxxx Xxxxx | |
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Name:
Xxxxxxxxx Xxxxxxx
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Name:
Xxxxx Xxxxx
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Title:
President
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Title:
President
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