EXHIBIT (H)
September 23, 1999
TERMINATION OF NON-COMPETITION AGREEMENT
Parties: GLOBAL SPORTS, INC.,
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a Delaware corporation (the "Company")
000 X. Xxxxxxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000 U.S.A.
DMJ FINANCIAL, INC.,
a Barbados limited company ("DMJ")
Royal Bank of Canada (Caribbean) Corporation
2/nd/ Floor, Building #0
Xxxxxxxx Xxxx
Xxxxxxxxx, Xx. Xxxxxxx, Barbados
XXXXX X. XXXXXX,
an individual ("Xxxxxx")
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
XXXXXXX X. XXXXXXXXXXX,
an individual ("Xxxxxxxxxxx")
00 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Date: ______________________, __________
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Background: Global, U.S. Acquisition Co. ("U.S. Co."), Canadian Acquisition Co.
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("Canadian Co."), DMJ, Xxxxxx and Xxxxxxxxxxx are parties to an Acquisition
Agreement, dated as of September 24, 1999 (the "Acquisition Agreement"),
pursuant to which (i) U.S. Co. acquired all of the issued and outstanding shares
of capital stock of Gen-X Holdings Inc., a Washington corporation, in exchange
for, among other things: (a) a cash payment in the amount of Six Million Forty
Thousand Dollars ($6,040,000); (b) a promissory note in the principal amount of
Five Million Dollars ($5,000,000); and (c) the assumption of Global's non-
negotiable subordinated notes in the original aggregate principal amount of
Three Million Nine Hundred Sixty Thousand Dollars ($3,960,000) payable to Gen-X
Holdings, dated as of the Closing Date, together with all accrued and unpaid
interest thereon, and (ii) Canadian Co. acquired all of the issued and
outstanding shares of capital stock of Gen-X Equipment Inc., an Ontario
corporation, in exchange for, among other things, a promissory note (the in the
principal amount of Five Million Dollars ($5,000,000). As a condition to the
consummation of the transactions contemplated by the Acquisition Agreement, the
Company has agreed to waive DMJ, Xxxxxx and Xxxxxxxxxxx'x compliance, subject to
the terms and conditions contained herein, with certain of the provisions of
the Non-Competition Agreement, dated May 12, 1998, among the Company, DMJ,
Xxxxxx and Xxxxxxxxxxx (the "Non-Competition Agreement"). Any
capitalized terms not defined herein shall have the meaning ascribed to such
terms in the Acquisition Agreement.
INTENDING TO BE LEGALLY BOUND, and in consideration of the mutual
agreements stated below and in the Acquisition Agreement, the parties hereby
agree as follows:
1. Termination of Non-Competition Agreement. Effective as of the date
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hereof, the Non-Competition Agreement is hereby terminated and of no further
force or effect.
2. Miscellaneous.
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(a) Notices. All notices, consents or other communications required
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or permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given (i) when delivered personally, (ii) three
business days after being mailed by first class certified mail, return receipt
requested, postage prepaid, or (iii) one business day after being sent by a
reputable overnight delivery service, postage or delivery charges prepaid, to
the parties at their respective addresses stated on the first page of this
Agreement. Notices may also be given by prepaid telegram or facsimile and shall
be effective on the date transmitted if confirmed within 24 hours thereafter by
a signed original sent in the manner provided in the preceding sentence. A copy
of each notice to DMJ, Xxxxxx or Xxxxxxxxxxx shall be simultaneously sent to
Xxxxxx & Xxxxxx, Scotia Plaza, 00 Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx X0X 0X0,
Xxxxxx, Attn: Xxxxxx X. Xxxxx. A copy of each notice to the Company shall be
simultaneously sent to: Blank Rome Xxxxxxx & XxXxxxxx LLP, Xxx Xxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attn: Xxxxxxx X. Xxxxx, Esquire. Any party
may change its address for notice and the address to which copies must be sent
by giving notice of the new addresses to the other parties in accordance with
this Section 2(a), except that any such change of address notice shall not be
effective unless and until received.
(b) Amendment. This Agreement may be amended, modified or
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supplemented by the parties hereto, provided that any such amendment,
modification or supplement shall be in writing and signed by the each of the
parties hereto.
(c) Waivers. No waiver with respect to this Agreement shall be
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enforceable against DMJ, Xxxxxx or Xxxxxxxxxxx unless in writing and signed by
DMJ, Xxxxxx or Xxxxxxxxxxx, as the case may be. No waiver with respect to this
Agreement shall be enforceable against the Company unless in writing and signed
by the Company. Except as otherwise expressly provided herein, no failure to
exercise, delay in exercising, or single or partial exercise of any right, power
or remedy by any party, and no course of dealing between or among any of the
parties, shall constitute a waiver of, or shall preclude any other or further
exercise or further exercise of the same or any other right, power or remedy.
(d) Entire Understanding. This Agreement states the entire
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understanding among the parties with respect to the subject matter hereof, and
supersede all prior oral and written communications and agreements, and all
contemporaneous oral communications and agreements, with respect to the subject
matter hereof.
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(e) Parties in Interest. This Agreement shall bind, benefit, and be
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enforceable by and against each party hereto and its successors and assigns.
None of the parties shall in any manner assign any of their rights or
obligations under this Agreement except with the express prior written consent
of the other parties.
(f) Severability. If any provision of this Agreement is construed to
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be invalid, illegal or unenforceable, then the remaining provisions hereof shall
not be affected thereby and shall be enforceable without regard thereto.
(g) Counterparts. This Agreement may be executed in any number of
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counterparts, each of which when so executed and delivered shall constitute an
original hereof, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one original counterpart hereof.
(h) Section Headings. The section and subsection headings in this
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Agreement are for convenience of reference only, do not constitute a part of
this Agreement, and shall not affect its interpretation.
(i) References. All words used in this Agreement shall be construed
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to be of such number and gender as the context requires or permits. Unless a
particular context clearly provides otherwise, the words "hereof" and
"hereunder" and similar references refer to this Agreement in its entirety and
not to any specific section or subsection hereof.
(j) Controlling Law. THIS AGREEMENT IS MADE UNDER, AND SHALL BE
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CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
(k) Jurisdiction and Process. Each of the parties (i) irrevocably
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consents to the exclusive jurisdiction of the Courts of Common Pleas of
Xxxxxxxxxx County, Pennsylvania, or the United States District Court for the
Eastern District of Pennsylvania, in any and all actions between or among any of
the parties, whether arising hereunder or otherwise, (ii) irrevocably waives its
right to trial by jury in any such action, and (iii) irrevocably consents to
service of process by first class certified mail, return receipt requested,
postage prepaid, to the address at which such party is to receive notice in
accordance with Section 2(a). In any and all actions between or among any of
the parties, whether arising hereunder or otherwise, the prevailing party or
parties shall be entitled to recover their reasonable attorneys' fees and legal
expenses from the other party or parties.
(l) No Third Party Beneficiaries. No provision of this Agreement is
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intended to or shall be construed to grant or confer any right to enforce this
Agreement, or any remedy for breach of this Agreement, to or upon any Person
other than the parties hereto, including, but not limited to, any customer,
prospect, supplier, employee, contractor, salesman, agent or representative of
any of the parties hereto.
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IN WITNESS WHEREOF, the parties have executed this Termination of Non-
Competition Agreement as of the date first above written.
GLOBAL SPORTS, INC. DMJ FINANCIAL, INC.
By: _______________________________ By: _______________________________
Name: Name:
Title: Title:
___________________________________ ___________________________________
XXXXXXX X. XXXXXXXXXXX XXXXX X. XXXXXX
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