EXHIBIT 10.17
NONCOMPETITION AGREEMENT
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THIS AGREEMENT, dated as of the 3rd day of November, 1995, is made and
entered into by and between DATAMAX CORPORATION, a Delaware corporation
("Seller"), XXXXXX X. XXXXXXX ("Xxxxxxx"), G. XXXXXXX XXXXXXX, XX. ("Xxxxxxx"),
XXXXXX X. XXXXXXXXXX ("Xxxxxxxxxx") and UNIMARK, INC., a Kansas corporation
("Buyer").
RECITALS:
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A. Buyer and Seller have entered into a certain Agreement of Purchase and
Sale of Assets dated November 3, 1995 (the "Acquisition Agreement"), whereby
Buyer is acquiring certain assets of Seller.
B. As a condition to Buyer's obligation to consummate the transactions
contemplated by the Acquisition Agreement, Buyer requires that Wohlers, Hartman,
Xxxxxxxxxx and Seller (collectively, the "Datamax Group") execute this
Noncompetition Agreement.
NOW, THEREFORE, in consideration of the premises and the following mutual
promises, the parties agree as follows:
1. The Datamax Group acknowledges and recognizes the highly competitive
nature of the operations of Seller being acquired by Buyer pursuant to the
Acquisition Agreement and acknowledge the necessity of preserving for Buyer the
proprietary rights and ongoing business value of such operations, and thus
hereby jointly and severally agree that they will not, directly or indirectly,
during the period commencing on the date hereof and continuing for that period
of time set forth opposite such party's name:
Datamax 8 years
Xxxxxxx 3 years
Xxxxxxx 3 years
Xxxxxxxxxx 3 years
(a) own, manage, operate, control or participate in the ownership,
management, operation or control of, or have any interest, financial or
otherwise, in any business engaged in the business of automated ticketing
and boarding pass, or luggage tag or gate reading (the "ATB Business");
(b) knowingly allow or permit any member of the Datamax Group or any
officer, director or employee of the Datamax Group (while an officer,
director or employee of Datamax Group) to act as an officer, director,
partner, principal, employee, agent, representative, consultant or
independent contractor of, or in any way assist in, or assist any
individual or entity other than Buyer in the conduct of, any ATB Business;
or
(c) divert or attempt to divert clients or customers (whether or not
such persons have done business with Buyer once or more than once) or
accounts of Buyer for ATB Business.
Notwithstanding the foregoing, the Datamax Group may own in the aggregate not
more than 5% of the stock of any corporation which is listed upon a national
stock exchange or actively traded in the over-the-counter market.
2. As compensation for the covenants of the Datamax Group set forth
above, Buyer shall to pay to Datamax the total sum of $1,000,000, payable over a
period of eight (8) years in eight annual payments of ONE HUNDRED TWENTY-FIVE
THOUSAND DOLLARS ($125,000.00). As compensation for the covenants of Xxxxxxx,
Xxxxxxx and Xxxxxxxxxx set forth above, Xxxxxxx, Xxxxxxx and Xxxxxxxxxx
acknowledge that the consummation of the transactions contemplated by this
Agreement will constitute an indirect, intangible benefit. The Datamax Group
also acknowledges that Buyer was not willing to close the transactions
contemplated by the Acquisition Agreement or pay any substantial amount to
Seller for such assets and covenants not to compete unless Buyer could be
assured that the Datamax Group would not engage in competition with Buyer, which
competition would deprive Buyer of the value and benefit of its purchase of
assets from Datamax. The annual payments hereunder shall be due and payable on
November 1 of each year following the year of this Agreement, with the first
payment due on November 1, 1996, and the final payment due on November 1, 2003.
Any payment which is not made when due shall bear interest from the date notice
of such non-payment is received by Buyer until the date paid at the lower of 15%
or the highest interest rate permitted by law.
3. It is expressly understood and agreed that, although the Datamax
Group considers the restrictions contained in Paragraph 1 of this Agreement to
be reasonable for the purposes set forth herein, if a final judicial
determination is made by a court of competent jurisdiction that any restriction
contained in Paragraph 1 of this Agreement is an unreasonable or otherwise
unenforceable restriction against the Datamax Group or any person in the Datamax
Group, neither this Agreement nor the provisions of such Paragraph shall be
rendered void, but shall be deemed amended to apply as to the maximum extent as
such court may judicially determine or indicate to be reasonable or, if such
court does not so determine or indicate, to the maximum extent which any
pertinent statute or judicial decision may indicate to be a reasonable
restriction under the circumstances involved. No such judicial determination or
amendment shall limit or relieve Buyer from the obligation to pay the total sum
of $1,000,000 or the annual fee(s) described above for the full eight (8) year
term of this Agreement.
4. The Datamax Group acknowledges and agrees that Buyer's remedy at law
for a breach or threatened breach of any of the provisions of Paragraph 1 of
this Agreement would be inadequate and, in recognition of that fact, in the
event of a breach or threatened breach, it is agreed that, in addition to its
remedy at law, Buyer shall be entitled to, and the Datamax Group agrees not to
oppose Buyer's request for, equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction or
any other equitable remedy which may then be available. Nothing herein contained
shall be construed as prohibiting Buyer from pursuing any other remedies
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available to it for such breach or threatened breach.
5. (a) This Agreement cancels and supersedes all previous agreements
relating to the subject matter of this Agreement, written or oral, between the
parties hereto and contains the entire understanding of the parties hereto and
shall not be amended, modified or supplemented in any manner whatsoever except
as otherwise provided herein or in writing signed by each of the parties hereto.
(b) The waiver by either party, or the failure by either party, to
claim a breach, or give notice with respect thereto, of any provision of this
Agreement shall not be, or be deemed to be, a waiver of any subsequent breach,
or deemed to affect in any way the effectiveness, of such provision.
(c) Neither this Agreement, nor any of the duties or obligations of
the Datamax Group hereunder, may be assigned (either voluntarily or by operation
of law) or otherwise delegated by the Datamax Group. This Agreement shall be
binding upon, and inure to the benefit of and be enforceable by, the parties
hereto and their respective successors and permitted assigns.
(d) This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which together shall
constitute one agreement which is binding upon all parties hereto,
notwithstanding that all parties are not signatories to the same counterpart.
(e) Any notice, request, consent or communication under this
Agreement shall be effective only if it is in writing and personally delivered
or sent by certified mail, postage prepaid, nationally recognized express
delivery service with delivery confirmed or telexed or telecopied with receipt
confirmed, addressed as follows:
If to THE DATAMAX GROUP:
Name: With Copy To:
---- ------------
Datamax Corporation Xxxxx X. Xxx
4501 Parkway Commerce Blvd. Datamax Corporation
Xxxxxxx, XX 00000 0000 Xxxxxxx Xxxxxxxx Xxxx.
Attention: Xxxxxx Xxxxxxxxxx Xxxxxxx, XX 00000
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If to BUYER:
Name: With Copy To:
---- ------------
Unimark, Inc. Xxxx Xxxx X'Xxxxxxx
0000 Xxxxx Xx. Husch & Eppenberger
Xxxxxxxx Xxxx, XX 00000 1200 Main, Suite 1700
Attn: Xxxx X. Xxxxxxxx Xxxxxx Xxxx, XX 00000
or such other person and/or addresses as shall be furnished in writing by any
such party, and shall be deemed to have been given as of the date so personally
delivered or received.
(f) This Agreement and all rights and obligations of the parties
hereunder and all rights and obligations of the parties shall be governed by,
and construed and interpreted in accordance with, the laws of the State of
Missouri applicable to agreements made and to be performed entirely within such
State, including all matters of enforcement, validity and performance.
(g) If any legal action or other proceeding is brought for the
enforcement or interpretation of any of the rights or provisions of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any of the provision of this Agreement, the
successful or prevailing party shall be entitled to recover reasonable
attorneys' fees and all other costs and expenses incurred in that action or
proceeding, in addition to any other relief to which it may be entitled.
(h) The parties hereto represent that in the negotiation and drafting
of this Agreement they have been represented by and relied upon the advice of
counsel of their choice. The parties affirm that their counsel have both had a
substantial role in the drafting and negotiation of this Agreement and,
therefore, this Agreement shall be deemed drafted by all of the parties hereto
and the rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Agreement or any attachment hereto.
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IN WITNESS WHEREOF, the parties hereto have duly executed or caused to be
duly executed this Agreement as of the day and year first above written.
_______________________________
SELLER: BUYER:
DATAMAX, INC. UNIMARK, INC.
By:________________________________ By:_____________________________
Xxxxxx X. Xxxxxxxxxx, President Xxxx X. Xxxxxxxx, President
Xxxxxx X. Xxxxxxx
G. Xxxxxxx Xxxxxxx, Xx.
Xxxxxx X. Xxxxxxxxxx
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ASSIGNMENT AND ASSUMPTION OF CONTRACT
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Effective this ____ day of __________, 1995, pursuant to the Agreement
of Purchase and Sale of Assets dated ______________, 1995 (the "Agreement")
between DATAMAX CORPORATION, a Delaware corporation having its principal office
at 0000 Xxxxxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000 ("Datamax"), UNIMARK,
INC., a Kansas corporation having its principal office at 0000 Xxxxx Xxxx,
Xxxxxxxx Xxxx, Xxxxxx 00000 ("Purchaser"), DATAMAX, for and in consideration of
the payment by Purchaser of Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
does hereby assign, sell, bargain, grant, set over and otherwise transfer to
Purchaser all of DATAMAX's right, title, and interest in and to the following
contract: OEM Purchase Agreement between DATAMAX and OKIDATA, Division of OKI
America, Inc., executed by the parties in November 1992, together with all
revisions and amendments thereof, if any, to date.
Purchaser hereby assumes and agrees to be bound by and to perform, pay
when due, discharge and be liable for all obligations and liabilities under the
Contract described above from and after the effective date hereof.
DATAMAX CORPORATION
By:____________________________
President
UNIMARK, INC.
By:____________________________
Its:___________________________
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