EXHIBIT 10.32
NON-COMPETITION, CONFIDENTIALITY AND SEVERANCE AGREEMENT
This Non-Competition, Confidentiality and Severance Agreement (this
"Agreement") is made as of February 8, 2002, by and between Sport Supply
Group, Inc., a Delaware corporation ("Employer"), and Xxxx Xxxx
("Employee").
RECITALS:
WHEREAS, Employee has requested that Employer pay Employee a specified
severance amount if Employee is terminated without cause (as described in
Paragraph 1 below) by Employer;
WHEREAS, Employer has agreed to the severance arrangement described
herein so long as Employee agrees to abide by the terms and provisions of
this Agreement.
WHEREAS, but for Employee's promises and representations made herein,
Employer would not have agreed to the payment of severance as set forth
herein;
NOW, THEREFORE, in consideration of the covenants and agreements of the
parties herein contained, the parties to this Agreement agree as follows:
1. Severance.
Employee acknowledges and agrees that Employee is an employee at will
and may be terminated by Employer at any time with or without cause (as
described below). Notwithstanding the foregoing, in consideration for the
promises made by Employee herein, including but not limited to Employee's
agreement regarding non-competition and nondisclosure of Confidential
Information below, Employer agrees as follows: If Employee is terminated by
Employer without cause, Employer agrees to pay Employee his then current bi-
weekly salary (i.e., happening every two weeks) for a period of twenty-four
(24) bi-weekly periods from the date of termination (less all amounts
required to be deducted or withheld therefrom and all amounts owed or due by
Employee to Employer). In exchange for Employer's agreement to make such
severance payments to Employee and other promises made by Employer herein,
Employee agrees that upon the termination of his employment without cause he
will sign and deliver to Employer a Release in the form of Exhibit A
attached hereto (as such Release may be modified by Employer due to changes
in applicable law). If Employee revokes the Release pursuant to Section 4
thereof or otherwise, or does not sign the release, Employer shall not be
obligated to pay any severance to Employee.
Employee acknowledges that he shall not be entitled to the severance
payments referenced above (but he will continue to be obligated by all the
provisions that survive termination of this Agreement, including without
limitation Sections 2, 3 and 4) if Employee (i) dies, (ii) resigns, (iii) is
absent from employment or unable to satisfactorily perform his essential job
functions, by reason of physical or mental illness or disability for more
than thirty (30) days in the aggregate in any twelve (12) month period, or
(iv) is terminated for cause. For the purposes of this Agreement, a
discharge "for cause" shall mean a discharge resulting from a determination
by Employer that Employee: (i) has committed a crime involving moral
turpitude, including fraud, theft or embezzlement; (ii) has failed and/or
refused to follow the policies, practices, directives, or orders established
by Employer's Board of Directors; (iii) has committed acts of gross
negligence or misconduct to the detriment of Employer; (iv) has been
insubordinate and/or has persistently failed to perform his duties as
described on Exhibit B attached hereto; or (v) has breached any of the terms
or provisions of this Agreement (including, but not limited to, a breach of
Section 2, 3 or 4 hereof).
Except as set forth in this Section and/or required by federal or state
law, Employer will have no other obligations to Employee if Employee is
terminated with or without cause.
2. Confidentiality
(a) In exchange for and in consideration for the promises made by
Employee herein, including promises made by Employee regarding
noncompetition in Section 3 herein as well as Employee's agreement to
execute the attached Release in the event of Employee's discharge from
employment without cause, Employer promises and agrees to provide Employee
with confidential, nonpublic information (in addition to any such
information previously obtained by Employee in the course of his employment)
consistent with the duties of an individual in Employee's position,
including but not limited to Employer's customer, supplier, and distributor
lists, trade secrets, plans, manufacturing techniques, sales, marketing and
expansion strategies, and technology and processes of Employer and/or its
affiliates, as they may exist from time to time, and information concerning
the products, services, production, development, technology and all
technical information, procurement and sales activities and procedures,
promotion and pricing techniques and credit and financial data concerning
customers of, and suppliers to, Employer and/or its Affiliates (referred to
hereinafter as "Confidential Information"). Employee acknowledges that such
Confidential Information constitutes valuable, special and unique assets of
the Employer and that his access to and knowledge of the Confidential
Information is essential to the performance of his duties under this
Agreement. In consideration for Employer's promises herein, Employee agrees
that all Confidential Information previously provided or known to Employee
in the course of his employment with Employer and all such Confidential
Information made available and provided to Employee pursuant to the terms of
this Agreement will be considered Confidential Information owned by Employer
and Employee agrees that Employee will not (i) disclose any Confidential
Information to any person or entity other than in connection with his
employment for Employer in accordance with Employer's policy, or (ii) make
use of any Confidential Information for his own purposes or for the benefit
of any other person or entity, other than Employer. Employee further
represents and warrants that, on or prior to the date of this Agreement, he
has not (i) disclosed any Confidential Information to any person or entity
other than in connection with his employment for Employer in accordance with
Employer's policy or (ii) made use of any Confidential Information for his
own purposes or for the benefit of any other person or entity, other than
Employer.
(b) Employee acknowledges and agrees that all manuals, drawings,
blueprints, letters, notes, notebooks, reports, financial records
(including, without limitation, budgets, business plans and financial
statements), computers, computer equipment, computer disks, hard drives,
electronic storage devices, books, procedures, forms, documents, records or
paper, or copies thereof, pertaining to the operations or business of
Employer made or received by Employee or made known to him in any way in
connection with his employment and any other Confidential Information are
and will be the exclusive property of Employer. Employee agrees not to copy
or remove any of the above from the premises and custody of Employer, or
disclose the contents thereof to any other person or entity except in the
ordinary course of business consistent with Employer's policies. Employee
acknowledges that all such papers and records will at all times be subject
to the control of Employer, and Employee agrees to surrender the same upon
request of Employer, and will surrender such no later than any termination
of his employment with Employer, whether voluntary of involuntary.
3. Non-Compete Covenant.
Employee acknowledges that the Confidential Information specified above
is valuable to the Employer and that, therefore, its protection and
maintenance constitutes a legitimate interest to be protected by the
Employer by the enforcement of this covenant not to compete. Therefore, in
consideration for the promises made by Employer herein, including but not
limited to Employer's promises regarding the payment of severance benefits
set forth in Section 1 and the provision of Confidential Information set
forth in Section 2 herein, Employee covenants and agrees that, (i) during
the term of his employment by the Employer (or an affiliate of Employer) and
(ii) for a period commencing upon the termination of Employee's employment
by Employer (or an affiliate of Employer) and ending upon the first
anniversary thereof, Employee will not, directly or indirectly, either as
an individual or as an employer, employee, consultant, partner, officer,
director, shareholder (except as a shareholder holding less than a five
percent (5%) interest in a corporation whose shares are actively traded on a
regional or national securities exchange or in the over-the-counter market),
substantial investor, trustee, agent, advisor, or consultant or in any other
capacity whatsoever, of any person or entity (other than the Employer):
(a) conduct or assist others in conducting any business in any
market area in the United States related to the promotion, marketing,
distribution, manufacturing, sourcing, importing, bidding and/or sale of
sports related equipment and/or supplies to institutional customers
(including, without limitation, schools, government agencies,
municipalities, military facilities, athletic clubs, youth sport leagues,
recreational organizations, sporting goods dealers, etc.) or any other
business that generates more than 10% of Employer's revenues at the time of
termination (the "Employer's Business");
(b) recruit, hire, assist others in recruiting or hiring, discuss
employment with or refer to others for employment (collectively referred to
as "Recruiting Activity") any person who is, or within the twenty-four (24)
month period immediately preceding the date of any such Recruiting Activity
was, at any time, an employee of, or a consultant to, the Employer or its
affiliates; or
(c) (i) communicate to any competing entity or enterprise any
competitive non-public information concerning any past, present or
identified prospective client or customer of, or supplier to, Employer; or
(ii) call on, solicit or hire or attempt to call on, solicit or hire any of
the customers, suppliers, clients, licensors, licensees, manufacturers,
distributors, dealers or independent salespersons of the Employer or any of
its affiliates which are engaged in the Employer's Business or that conduct
business with Employer in the United States; or induce, attempt to induce or
assist any other person or entity in inducing or attempting to induce,
directly or indirectly, any such customer, supplier, client, licensor,
licensee, manufacturer, dealer, distributor or independent salesperson to
discontinue their relationship with the Employer or its affiliates.
The existence of any claim or cause of action of Employee against
Employer, or any officer, director, or shareholder of Employer, whether
predicated on this Agreement or otherwise, shall not constitute a defense to
the enforcement by Employer of the covenants of Employee contained in this
Section 3. In addition, the provisions of this Section 3 shall continue to
be binding upon Employee in accordance with its terms, notwithstanding the
termination of Employee for any reason.
If Employee violates any covenant contained in this Section 3 and
Employer brings legal action for injunctive or other relief, Employer shall
not, as a result of the time involved in obtaining the relief, be deprived
of the benefit of the full period of any such covenant. Accordingly, the
covenants of Employee contained in this Section 3 shall be deemed to have
durations as specified above, which periods shall commence upon the later of
(i) the termination of Employee's employment with Employer, and (ii) the
date of entry by a court of competent jurisdiction of a final, non-
appealable judgment enforcing the covenants of Employee in this Section 3.
During any period of time in which Employee is in breach of this covenant
not to compete, the parties agree that the time period of this covenant
shall be extended for an amount of time that Employee is in breach hereof.
Employee understands and agrees that the scope of this covenant
contained in this Section 3 is reasonable as to time, area, and persons and
is necessary to protect the proprietary and legitimate business interests of
the Employer, and but for such covenant the Employer would not have agreed
to enter into the transactions contemplated by this Agreement. Employee
agrees that this covenant is reasonable in light of the compensation and
other benefits Employee has accepted pursuant to this Agreement. It is
further agreed that such covenant will be regarded as divisible and will be
operative as to time, area, and persons to the extent that it may be so
operative. If any part of this Section is declared invalid, unenforceable,
or void as to time, area, or persons, the validity and enforceability of the
remainder will not be affected. Should a court of competent jurisdiction
determine this covenant unenforceable as written, the parties agree that the
court shall modify this covenant to the extent necessary to make it
enforceable. The alleged breach of any other provision of this Agreement
asserted by Employee shall not be a defense to claims arising from
Employer's enforcement of this covenant.
The provisions of Sections 1, 2, 3 4, 5, 6, 10 and 12 shall survive
any termination or expiration of this Agreement.
4. Proprietary Information. Employee hereby assigns to Employer
all of Employee's right, title and interest to, and shall promptly disclose
to Employer, all ideas, inventions, products, services, discoveries or
improvements (whether or not patentable) conceived or developed solely or
jointly by Employee during the term of this Agreement (a) which relate to
the business or the actual or anticipated research or development of
Employer, (b) which result from any work performed by Employee for Employer,
or (c) for which equipment, supplies, facilities or Confidential Information
of Employer was used. Employee agrees to execute any further documents
and/or patents that Employer requests and will otherwise assist Employer (at
Employer's expense) in protecting Employer's rights to such ideas,
inventions, products, services, discoveries or improvements. Employee
hereby appoints Employer as his attorney-in-fact, with full power of
substitution, to execute and deliver such documents or patents on behalf of
Employee. Employee represents to Employer that Employee has not conceived
or reduced to practice any ideas, inventions, products, services,
discoveries or improvements at the time of signing this Agreement.
5. Injunctive Relief. Each party acknowledges that a remedy at law
for any breach or attempted breach of this Agreement will be inadequate,
agrees that each party will be entitled to specific performance and
injunctive and other equitable relief in case of any breach or attempted
breach and agrees not to use as a defense that any party has an adequate
remedy at law. This Agreement shall be enforceable in a court of equity, or
other tribunal with jurisdiction, by a decree of specific performance, and
appropriate injunctive relief may be applied for and granted in connection
herewith. Such remedy shall not be exclusive and shall be in addition to
any other remedies now or hereafter existing at law or in equity, by statute
or otherwise. No delay or omission in exercising any right or remedy set
forth in this Agreement shall operate as a waiver thereof or of any other
right or remedy and no single or partial exercise thereof shall preclude any
other or further exercise thereof or the exercise of any other right or
remedy.
6. Binding Nature. The rights and obligations of Employer under
this Agreement will inure to the benefit of and will be binding upon the
successors and assigns of Employer.
7. Confidentiality. Employee further agrees to keep the terms of
this Agreement wholly and completely confidential. Further, Employee
agrees not to disclose the amount, terms, substance, or contents of this
Agreement to any person or persons, excluding only his spouse, his
attorneys, his tax advisors and any government agency to which he is
required by law to reveal the terms of this Agreement.
8. Severability. If any provision of this Agreement is declared or
found to be illegal, unenforceable or void, in whole or in part, then both
parties will be relieved of all obligations arising under such provision,
but only to the extent it is illegal, unenforceable or void. The intent and
agreement of the parties to this Agreement is that this Agreement will be
deemed amended by modifying and/or reforming any such illegal, unenforceable
or void provision to the extent necessary to make it legal and enforceable
while preserving its intent, or if such is not possible, by substituting
therefor another provision that is legal and enforceable and achieves the
same objectives. Notwithstanding the foregoing, if the remainder of this
Agreement will not be affected by such declaration or finding and is capable
of substantial performance, then each provision not so affected will be
enforced to the extent permitted by law.
9. Waiver. No delay or omission by either party to this Agreement
to exercise any right or power under this Agreement will impair such right
or power or be construed as a waiver thereof. A waiver by either of the
parties to this Agreement of any of the covenants to be performed by the
other or any breach thereof will not be construed to be a waiver of any
succeeding breach thereof or of any other covenant contained in this
Agreement. All remedies provided for in this Agreement will be cumulative
and in addition to and not in lieu of any other remedies available to either
party at law, in equity, or otherwise.
10. Governing Law. This Agreement will be governed by and construed
in accordance with the laws of the State of Texas without giving effect to
any principle of conflict-of-laws that would require the application of the
law of any other jurisdiction.
11. Notices. For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to Employee: If to Employer:
Xxxx Xxxx Sport Supply Group, Inc.
[ deleted for confidentiality ] Attention: Chief Executive Officer
0000 Xxxxxxxx Xxxxx
Xxxxxxx Xxxxxx, Xxxxx 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
12. Submission to Jurisdiction. Each party agrees that this
Agreement is performable in Dallas, Dallas County, Texas, and that any
action or proceeding arising out of or related in any way to this Agreement
shall be brought solely in a court of competent jurisdiction sitting in
Dallas, Dallas county, Texas. All parties hereto hereby irrevocably submit
to the nonexclusive jurisdiction of the state and federal courts of the
State of Texas and agree and consent that service of process may be made
upon it in any proceeding arising out of this Agreement by service of
process as provided by Texas law. All parties hereto hereby irrevocably
waive, to the fullest extent permitted by law, any objection which it may
now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement brought in the
District Court of Dallas County, State of Texas, or in the United States
District Court for the Northern District of Texas, and hereby further
irrevocably waive any claims that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
13. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
14. Assignment. The rights and obligations of Employer may, without
the consent of Employee, be assigned by Employer to any parent, subsidiary,
affiliate, or successor of Employer. Employee may not assign any of his
rights or obligations under this Agreement.
15. Entire Agreement. This Agreement (along with the Exhibits)
constitutes the entire agreement between the parties to this Agreement with
respect to the subject matter of this Agreement and there are no
understandings or agreements relative to this Agreement which are not fully
expressed in this Agreement and the Exhibit. All prior or contemporaneous
agreements between the parties with respect to the subject matter of this
Agreement being expressly superseded by this Agreement and the Exhibit. No
change, waiver, or discharge of this Agreement will be valid unless in
writing and signed by the party against which such change, waiver, or
discharge is to be enforced.
16. Attorneys' Fees. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party
shall be entitled to receive from the other its reasonable attorneys' fees,
costs, and necessary disbursements in addition to any other relief to which
such party may be entitled.
IN WITNESS WHEREOF, the parties to this Agreement have executed and
delivered this Agreement on the date first above written.
EMPLOYER:
SPORT SUPPLY GROUP, INC.
By:
---------------------------------------
Xxxx X. Xxxxxx
President
EMPLOYEE:
---------------------------------------
Xxxx Xxxx
EXHIBIT A
RELEASE
This Release (this "Agreement") is made and entered into on
____________, ___ (the "Effective Date") by and between Sport Supply Group,
Inc., a Delaware corporation (the "Company") and Xxxx Xxxx ("Bals").
WHEREAS, the Company and Bals entered into that certain Non-
Competition, Confidentiality and Severance Agreement dated ______________
(the "Severance Agreement").
WHEREAS, Bals's execution and delivery of this Agreement is a condition
precedent to Bals being paid pursuant to the terms of the Severance
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Bals agree as
follows:
1. Covenants and Agreements of Bals. Bals acknowledges and agrees that
the consideration he has accepted and received pursuant to the
Severance Agreement is not otherwise due to him. In consideration for
the compensation in the Severance Agreement, the receipt and
sufficiency of which are hereby acknowledged, Bals voluntarily and
knowingly:
a. Nondisparagement of Company. Agrees that after the date hereof, he
will not say, publish or do anything that casts the Company or any
of the Company's affiliates (including, without limitation,
successors, assigns, officers, directors, or employees), any of its
products or the industry or management of the Company or any of the
Company's affiliates in an unfavorable light, or disparage or injure
the Company's or any of the Company's affiliate's goodwill, business
reputation or relationship with existing or potential suppliers,
vendors, customers, employees, contractors, investors or the
financial community in general, or the goodwill or business
reputation of the Company's, or any of the Company's affiliates',
employees, former employees, officers, directors, consultants or
contractors. Notwithstanding the foregoing, nothing herein shall
prohibit Bals from truthfully testifying in a hearing, deposition or
other legal proceeding in which Bals could be criminally or civilly
sanctioned for the failure to respond truthfully.
b. Release. Hereby waives, releases and forever discharges and
covenants not to xxx the Company and/or its predecessors;
successors; partners; affiliates, parents, or subsidiaries; assigns,
employee retirement, health and welfare benefit plans and the
fiduciaries thereof; officers; administrators; employees; former
employees; directors; trustees; shareholders; representatives;
attorneys; and agents, from all claims, liabilities, demands,
actions, or causes of action, in contract, tort or otherwise,
including but not limited to all wrongful discharge claims, all
tort, intentional tort, personal injury, negligence, defamation, and
contract claims, any claim for attorneys' fees, or any claim arising
from any federal, state or local civil rights and/or employment
legislation (including but not limited to Title VII of the Civil
Rights Act of 1964, as amended by the Civil Rights Act of 1991, the
Age Discrimination in Employment Act of 1967, the Americans with
Disabilities Act, and any claim for benefits, including but not
limited to those arising under the Employee Retirement Income
Security Act of 1974 ("ERISA")), known or hereafter discovered by
Bals, on account of or connected with or growing out of, directly or
indirectly, Bals's employment and termination thereof or any act or
omission by the Company or its agents occurring on or before the
Effective Date. By execution hereof, Bals represents, covenants,
and warrants that no claims released or waived herein have been
previously conveyed, assigned, or transferred in any manner, whether
in whole or in part, to any persons, entity, or other third party.
Bals expressly represents that he is competent and authorized to
release and/or waive any claim he may have against the Company on
any basis whatsoever.
c. Acknowledgment. Acknowledges that as of Effective Date: (i) Bals's
employment by the Company is lawfully and voluntarily terminated;
(ii) Bals has received all due and owing pay for all labor and
services performed by him for the Company; (iii) he has received or
been compensated for all salary, vacation time, sick leave,
compensatory time, reimbursable expenses, car allowance, personal
injuries, bonuses, profit-sharing, retirement, health, welfare,
pension, all rights under all employee benefits to which he may have
been entitled as of the Effective Date; (iv) he will promptly
reimburse the Company for all personal expenses incurred by Bals,
including, without limitation, travel advances; and (v) there are no
other agreements, whether written or oral, between Bals and the
Company, other than certain Stock Option Agreements that Bals may
have, and the Severance Agreement. The options governed by the
Stock Option Agreements, if any, may be exercised for a period of
one-hundred twenty (120) days after the Effective Date; thereafter,
the Stock Option Agreements will be deemed to be terminated and of
no further force or effect.
d. Transition. Agrees to cooperate and assist the Company in the
training of Bals's successor during the period of time in which Bals
is being paid pursuant to the Severance Agreement.
2. Conditions. It is expressly understood that the obligations and
agreements of the Company pursuant to this Agreement and the Severance
Agreement are expressly subject to the continuing performance by Bals
of the obligations, covenants and agreements assumed by him pursuant
hereto. In the event the Company's Board of Directors in good faith
determines Bals breached any representation, agreement, covenant or
obligation contained herein or in said Severance Agreement, the
agreements, covenants and obligations of the Company pursuant hereto
and the Severance Agreement shall terminate and be of no further force
or effect, without prejudice to any other right the Company may have
hereunder to performance of the agreements and obligations assumed by
Bals hereunder and the Severance Agreement.
3. Return of Property. Bals further agrees to return to the Company
(Attention: President), simultaneously with the execution of this
Agreement, all computers, computer disks or other magnetic storage
data, facsimile machines, telephones, credit cards, calling cards,
keys, security codes, and other property of the Company in Bals's
possession or control and all documents, records, notebooks, mailing
lists, business proposals, contracts, agreements and other repositories
containing information concerning the Company or its business, whether
copies or originals (including but not limited to all correspondence,
client and/or customer lists, vendor agreements, minutes or agenda(s)
for any meeting, hand-written notes, journals, computer printouts or
programs, office memoranda, other tangible items or materials).
4. Revocation of this Agreement. Bals further acknowledges and agrees
that he has the right to discuss all aspects of this Agreement with a
private attorney, and that he has done so to the extent he desires.
Bals acknowledges and understands that he has twenty-one (21) days to
sign this Agreement after receipt of it in order to fully consider all
of its terms. Bals further acknowledges and understands that this
Agreement may be revoked by him in writing within seven (7) days from
the date he signs it, and that this Agreement shall not become
effective or enforceable until eight (8) days after Bals has signed
this Agreement.
5. Full and Final Settlement. This Agreement is contractual, not a mere
recital, and is a full and final settlement of any and all claims each
party hereto may have against the other and its affiliates on any basis
whatsoever, and shall be binding on the each party hereto and their
heirs, personal representative(s), estate, successors and assigns.
6. Entire Agreement. This Agreement and the Severance Agreement
constitute the entire understanding Bals has with the Company and
supersedes any previous agreements (other than the Severance
Agreement), whether oral or written, between the Company and Bals. No
other promises or agreements regarding the matters addressed herein
shall be binding unless they are in writing and signed by Bals and the
Company.
7. No Continuing Waiver. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provisions, whether or not similar, nor shall any waiver constitute a
continuing waiver. Any waiver must be in writing and signed by the
party entitled to performance.
8. Attorneys' Fees. If any civil action, whether at law or in equity, is
necessary to enforce or interpret any of the terms of this Agreement,
the prevailing party shall be entitled to reasonable attorneys' fees,
court costs and other reasonable expenses of litigation, in addition to
any other relief to which such party may be entitled.
9. Confidentiality. Bals further agrees to keep the terms of this
Agreement and the Severance Agreement wholly and completely
confidential. Further, Bals agrees not to disclose the amount, terms,
substance, or contents of this Agreement or the Severance Agreement to
any person or persons, excluding only his spouse, his attorneys, his
tax advisors and any government agency to which he is required by law
to reveal the terms of this Agreement or the Severance Agreement. In
addition, Bals agrees not to use or disclose any Confidential
Information as defined in the Severance Agreement.
10. Injunctive Relief. Each party acknowledges that a remedy at law for
any breach or attempted breach of this Agreement will be inadequate,
agrees that each party will be entitled to specific performance and
injunctive and other equitable relief in case of any breach or
attempted breach and agrees not to use as a defense that any party has
an adequate remedy at law. This Agreement shall be enforceable in a
court of equity, or other tribunal with jurisdiction, by a decree of
specific performance, and appropriate injunctive relief may be applied
for and granted in connection herewith. Such remedy shall not be
exclusive and shall be in addition to any other remedies now or
hereafter existing at law or in equity, by statute or otherwise. No
delay or omission in exercising any right or remedy set forth in this
Agreement shall operate as a waiver thereof or of any other right or
remedy and no single or partial exercise thereof shall preclude any
other or further exercise thereof or the exercise of any other right or
remedy.
11. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Texas without giving effect to
any principle of conflict-of-laws that would require the application of
the law of any other jurisdiction.
12. Submission to Jurisdiction. Each party agrees that this Agreement is
performable in Dallas, Dallas County, Texas, and that any action or
proceeding arising out of our related in any way to this Agreement
shall be brought solely in a court of competent jurisdiction sitting in
Dallas, Dallas County, Texas. All parties hereto hereby irrevocably
submit to the nonexclusive jurisdiction of the state and federal courts
of the State of Texas and agree and consent that service of process may
be made upon it in any proceeding arising out of this Agreement by
service of process as provided by Texas law. All parties hereto hereby
irrevocably waive, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this
Agreement brought in the District Court of Dallas County, State of
Texas, or in the United States District Court for the Northern District
of Texas, and hereby further irrevocably waive any claims that any such
suit, action or proceeding brought in any such court has been brought
in an inconvenient forum.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
___________,_______.
SPORT SUPPLY GROUP, INC.
By: _________________ __________________
Name: Xxxx X. Xxxxxx Xxxx Xxxx
Title: President
