RESTRICTIVE COVENANT AGREEMENT
Exhibit
10.12
This
Restrictive Covenant Agreement (this “Agreement”) is made
and entered into as of May 28, 2010, by and
between __________________, a Delaware limited liability company (the “Seller”), having its
principal place of business at ______________________, and Clarus Corporation, a
Delaware corporation (the “Company”), having its
principal place of business at 0000 Xxxx 0000 Xxxxx, Xxxx Xxxx Xxxx, XX
00000.
WHEREAS, the Company, through
Sapphire/Everest Acquisition, LLC (“Purchaser”), a Delaware limited liability
company and a wholly-owned subsidiary of the Company, is acquiring all of the
issued and outstanding capital stock of Xxxxxxx Mountain Products,
Inc., a Delaware corporation (“GMP”), pursuant to the terms and conditions of
the Merger Agreement;
WHEREAS, the Seller is one of
two stockholders of GMP and the Company desires to be assured that the goodwill
of GMP remains intact after the Closing; and
WHEREAS, it is a material
inducement that the Seller enter into this Agreement for the Company to enter
into the Merger Agreement.
NOW, THEREFORE, in
consideration of the terms, conditions and other provisions set forth herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
Capitalized
terms used and not otherwise defined herein shall have the meanings given such
terms in the Merger Agreement. As used in this Agreement, the
following terms shall have the following meanings:
“Business” shall mean
the business of GMP, including manufacturing, assembling, licensing,
distributing, marketing and selling commercial expedition, technical backpacking
and non-technical/“lifestyle” packs and bags.
“Competitive Business”
shall mean any business competitive with the Business.
“Merger Agreement”
shall mean that certain merger agreement dated as of May 7, 2010,
among Clarus Corporation, (the “Company”), Everest/Sapphire Acquisition, LLC,
Everest Merger I Corp., Everest Merger II, LLC, Xxxxxxx Mountain Products, Inc.
and Kanders GMP Holdings, LLC and Xxxxxxxx Xxxxxxx Investment Company,
LLC.
“Restricted Period”
shall mean a consecutive three year period commencing on the Closing Date,
subject to the tolling provisions hereof.
1. Restrictive
Covenant. For purposes of Section 1 and Section 2 of this
Agreement, all references to the Company shall be deemed to include each
Subsidiary and each of their respective successors and assigns, including,
without limitation, the Purchaser, and all references to the Seller shall be
deemed to include all of the Affiliates, heirs and personal and legal
representatives of the Seller. The Seller acknowledges that in order
to assure the Company that GMP will retain the value of GMP as a “going
concern,” the Seller on behalf of itself and on behalf of its Affiliate and any
of their respective employees, agents or others under their control, agrees not
to utilize its special knowledge of the Business and its relationships with
customers, prospective customers, suppliers and others or otherwise to compete
with the Company in the Business during the Restricted Period. Except
with respect to the Seller’s ownership of the securities of the Company, during
the Restricted Period, the Seller shall not, and shall cause its Affiliates to
not, permit any of their respective employees, agents or others under their
control to, directly or indirectly, on behalf of the Seller or any
Affiliate to engage or have an interest, anywhere in the world in which the
Company conducts business or markets or sells its products as of the Closing
Date, alone or in association with others, as principal, officer, agent,
employee, director, partner or stockholder (except as an owner of two percent or
less of the stock of any company listed on a national securities exchange or
traded in the over-the-counter market), whether through the investment of
capital, lending of money or property, rendering of services or capital, or
otherwise, in any business involving, relating or similar to, directly or
indirectly, the Business. During the Restricted Period, the Seller
shall not, and shall cause its Affiliates to not, permit any of their respective
employees, agents or others under their control to, directly or indirectly, on
behalf of the Seller or any Affiliate, to (i) accept Competitive Business from,
or solicit the Competitive Business of any Person who, to the Seller’s
knowledge, is, or who had been at any time during the preceding three years, a
customer, known prospective customer, or supplier of the Business conducted by
the Company; or (ii) recruit or otherwise solicit or induce any Person who is an
employee or consultant of, or otherwise engaged by Company, to terminate his or
her employment or other relationship with Company, or such successor, or hire
any person, other than Xxxx Xxxxxxx, Xxxxxx Xxxxxxxx or Xxxxxx X. Xxxxxxx, who
has left the employ of the Company, during the preceding two years.
(b) The
Seller shall not, and shall cause its Affiliates to not, permit any of their
respective employees, agents or others then under their control to, directly or
indirectly, (i) make or cause to be made, any statements that are disparaging or
derogatory concerning the Business, the Company or its businesses, customers,
suppliers, services, reputations, or prospects, or the Company’s past or present
officers, managers, members, employees and agents; (ii) request, suggest,
influence or cause any party, directly or indirectly, to cease doing business
with or to reduce its business with the Company or do or say anything which
could reasonably be expected to damage any of the business, supplier, or
customer relationships of the Company; or (iii) use or purport to authorize any
Person to use any Intellectual Property which is the same as or similar to that
used currently or in the past in connection with any product or service in
respect of the Business by the Company.
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2. Confidentiality. The
Seller acknowledges that the intangible property and all other confidential or
proprietary information with respect to the Business are valuable, special and
unique assets of the Company. The Seller shall not, at any time after
the Closing Date, disclose, directly or indirectly, to any Person, or use or
purport to authorize any Person to use any confidential or proprietary
information with respect to the Company, whether or not for their own benefit,
without the prior written consent of the Purchaser unless required by Law,
including, without limitation, (i) Trade Secrets, intangible property, marketing
plans, business plans and strategies; (ii) confidential or proprietary
information relating to products or services; (iii) the names of customers and
contacts, vendors and suppliers, the cost of materials and labor, the prices
obtained for services sold (including the methods used in price determination,
manufacturing and sales costs), compensation paid to employees and consultants
and other terms of employment, production operation techniques or any other
confidential or proprietary information of, about or pertaining to the Business,
and any other confidential or proprietary information and material relating to
any customer, vendor, licensor, licensee, or other party in connection with the
Business; and (iv) any other confidential or propriety information which the
Seller acquired or developed in connection with or as a result of his being a
shareholder, officer, director, employee, agent or representative of GMP,
excepting in each instance (i) – (iv) only such information as (a) is already
known to the public or which may become known to the public without any fault of
the Seller in violation of any confidentiality restrictions, (b) (i) was
available to the Seller (prior to its delivery to the Seller by the Company) or
(ii) becomes available to the Seller on a non-confidential basis from a Person
other than the Company who is not otherwise bound by a confidentiality agreement
with respect to such information or is otherwise prohibited from transmitting
the information to the Seller, or (c) can be proven to have been independently
developed by the Seller without reference to such information.
3. Continuing Obligations;
Equitable Remedies. The restrictions set forth in Sections 1
and 2 are considered by the parties to be reasonable for the purposes of
protecting the value of the business and goodwill of GMP. The Seller
acknowledges that the Company would be irreparably harmed and that monetary
damages would not provide an adequate remedy to the Company in the event the
covenants contained in Sections 1 and 2 were not complied with in accordance
with their terms. Accordingly, the Seller agrees that any breach by
him of any provision of Sections 1 or 2 shall entitle the Company to injunctive
and other equitable relief to secure the enforcement of these provisions, in
addition to any other remedies (including damages) which may be available to the
Company. If the Seller or any of its respective Affiliates breaches
the covenant set forth in Section 1, the running of the Restricted Period
described therein shall be tolled for so long as such breach
continues. It is the desire and intent of the parties that the
provisions of Sections 1 and 2 be enforced to the fullest extent permissible
under the laws and public policies of each jurisdiction in which enforcement is
sought. If any provisions of Section 1 or 2 relating to the time
period, scope of activities or geographic area of restrictions is declared by a
court of competent jurisdiction to exceed the maximum permissible time period,
scope of activities or geographic area, as the case may be, the time period,
scope of activities or geographic area shall be reduced to the maximum which
such court deems enforceable. If any provisions of Section 1 or 2
other than those described in the preceding sentence are adjudicated to be
invalid or unenforceable, the invalid or unenforceable provisions shall be
deemed amended (with respect only to the jurisdiction in which such adjudication
is made) in such manner as to render them enforceable and to effectuate as
nearly as possible the original intentions and agreement of the
parties. The Seller agrees that it will be responsible for any breach
of this Agreement by it or its Affiliates or any of their respective employees,
agents or others under their control.
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4. Indemnification; Costs of
Enforcement. The Seller agrees to be responsible for and shall
pay and indemnify and hold harmless Company and its respective Affiliates,
members, managers, officers, employees and agents from, against and in respect
of, the full amount of any and all liabilities, damages, claims, deficiencies,
fines, assessments, losses, Taxes, penalties, interest, costs and expenses,
including, without limitation, reasonable fees and disbursements of counsel
(collectively, “Losses”), and any and
all actions, suits, proceedings, demands, assessments or judgments incidental to
any of the foregoing arising from, in connection with, or incident to any breach
or violation of any of the covenants or agreements of the Seller (whether made
on behalf of himself/itself or his/its Affiliates) set forth in Section 1 or 2
of this Agreement. Notwithstanding the foregoing if any party brings
an action to enforce any part of this Agreement or to obtain damages for a
breach thereof, the prevailing party in such action shall be entitled to recover
from the non-prevailing party all attorney's fees and expenses incurred by the
prevailing party in such action.
5. Representations and
Warranties. Each party to this Agreement represents and
warrants to each other party to this Agreement that (a) the execution, delivery
and performance by each party to this Agreement constitutes the legal, valid and
binding obligation of such party and (b) such party is not a party to any
agreement or other restriction which restricts such party from entering into
this Agreement.
6. Counterparts. This
Agreement may be executed in any number of counterparts each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument. The exchange of copies of this Agreement and of signature
pages by facsimile transmission shall constitute effective execution and
delivery of this Agreement as to the parties and may be used in lieu of the
original Agreement for all purposes. Signatures of the parties transmitted by
facsimile shall be deemed to be their original signatures for all
purposes.
7. Participation of the
Parties. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement and both parties have either
consulted with counsel of their choosing or have had the opportunity to consult
with counsel of their choosing and have waived such opportunity. If
an ambiguity or question of intent or interpretation arises, this Agreement
shall be construed as if drafted jointly and no presumption or burden of proof
shall arise favoring or disfavoring any party hereto because of the authorship
of any provision of this Agreement.
8. Entire Agreement; Waiver and
Modification. This Agreement
constitutes the entire agreement between the parties with respect to the subject
matter hereof and thereof and supersedes all prior agreements, both written and
oral, with respect to such subject matter. Any provision of this
Agreement may be waived at any time in writing by the party which is entitled to
the benefits thereof. No change, modification, extension,
termination, notice of termination, discharge, abandonment or waiver of this
Agreement or any of its provisions, nor any representation, promise or condition
relating to this Agreement, will be binding upon any party unless made in
writing and signed by such party.
9. Successors. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
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10. Governing Law; Consent to
Jurisdiction; Waiver of Jury Trial. This Agreement shall be
governed by, and construed in accordance with, the internal laws of the State of
New York without regard to the choice of law principles thereof. Each
of the parties hereto irrevocably submits to the exclusive jurisdiction of the
courts of the State of New York located in New York County and the United States
District Court for the Southern District of New York for the purpose of any
suit, action, proceeding or judgment relating to or arising out of this
Agreement and the transactions contemplated hereby. Service of
process in connection with any such suit, action or proceeding may be served on
each party hereto anywhere in the world by the same methods as are specified for
the giving of notices under this Agreement. Each of the parties
hereto irrevocably consents to the jurisdiction of any such court in any such
suit, action or proceeding and to the laying of venue in such
court. Each party hereto irrevocably waives any objection to the
laying of venue of any such suit, action or proceeding brought in such courts
and irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY
RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS
AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS
WAIVER.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have entered into and signed this Agreement
as of the date and year first above written.
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CLARUS
CORPORATION
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By:
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________________,
Individually and on
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Name: Xxxxxx X. Xxxxxxxxx
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behalf
of Seller
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Title: Chief Financial
Officer
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