EXHIBIT (G)
September 23, 1999
NON-COMPETITION AGREEMENT
Parties: XXXXXXX X. XXXXX
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an individual ("Xxxxx")
c/o GLOBAL SPORTS, INC.,
a Delaware corporation
000 X. Xxxxxxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000 X.X.X.
GLOBAL SPORTS, INC.,
a Delaware corporation ("Global")
000 X. Xxxxxxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000 X.X.X.
GEN-X HOLDINGS INC.,
a Washington corporation ("Gen-X Holdings")
00 Xxxxxx Xxxxxxxx
Xxxxx Xxxx, Xxxxxxx
Xxxxxx, X0X0X0
GEN-X EQUIPMENT INC.,
an Ontario corporation ("Gen-X Equipment")
00 Xxxxxx Xxxxxxxx
Xxxxx Xxxx, Xxxxxxx
Xxxxxx, X0X0X0
Date: _____________, _____
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Background: Global, U.S. Acquisition Co. ("U.S. Co."), Canadian Acquisition Co.
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("Canadian Co."), DMJ Financial Inc. ("DMJ"), Xxxxx X. Xxxxxx ("Xxxxxx") and
Xxxxxxx X. Xxxxxxxxxxx ("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 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 in
exchange for, among other things, a promissory note in the principal amount of
Five Million Dollars ($5,000,000). Gen-X Holdings and Gen-X Equipment are
referred to herein collectively as the "Gen-X Companies". As a condition to the
consummation of the transactions contemplated by the Acquisition Agreement,
Xxxxx, as the chief executive officer of Global, and Global (each, individually,
a "Covenantor") have agreed to become bound by certain restrictive covenants for
purposes of protecting U.S. Co.'s and Canadian Co.'s purchase under the
Acquisition 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. Noncompetition. During the Term (as hereafter defined) except with
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the Gen-X Companies' prior written consent, neither Covenantor shall, directly
or indirectly, in any capacity, at any location where either of the Gen-X
Companies currently conducts or proposes to conduct business (so long as such
Covenantor is aware of such proposal) as of the date hereof (the "Territory"):
(a) communicate with or solicit any Person who is or during the
one-year period prior to the date hereof was or during the Term becomes, a
customer, employee, salesman, agent or representative of, or a consultant to,
either of the Gen-X Companies in any manner which interferes or might interfere
with such Person's relationship with either of the Gen-X Companies, or in an
effort to obtain any such Person as a customer, employee, salesman, agent or
representative of, or a consultant to, any other Person that conducts a business
competitive with or similar to the action sports and off-price sporting goods
business currently conducted by the Gen-X Companies (which off-price sporting
goods business consists of the buying of closeout sporting goods and apparel
inventory from retailers and manufacturers and the reselling of such inventory
to other retailers); or
(b) establish, own, manage, operate, finance or control, or directly
or indirectly participate in the establishment, ownership, management,
operation, financing or control of, or be a director, officer, employee,
salesman, agent or representative of, or be a consultant to, any Person that
conducts a business competitive with the action sports and off-price sporting
goods business currently conducted by the Gen-X Companies.
Notwithstanding anything to the contrary contained herein, neither Covenantor
shall be prohibited or restricted from (i) designing, developing and/or
operating web sites for, (ii) providing fulfillment or other services or goods
in connection with, (iii) procuring goods in connection with, or (iv) offering
for sale and/or selling off-price sporting goods over the internet either on
behalf of itself or any of its customers or others with which such Covenantor
has a contractual relationship.
2. Term and Termination. The term of this Agreement (the "Term") shall
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begin on the date hereof and shall end on the fifth (5th) anniversary of the
date hereof, unless terminated earlier as provided herein. Notwithstanding the
foregoing, either Covenantor may terminate this Agreement at any time, upon the
occurrence of either of the following:
(a) the material default, breach or violation of U.S. Co., Canadian
Co., DMJ, the Gen-X Companies, Xxxxxx or Xxxxxxxxxxx in the performance or
observance of any of their respective covenants, agreements, representations,
warranties or conditions contained in the Acquisition
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Agreement or the Ancillary Agreements; provided that this Agreement shall not
terminate if U.S. Co., Canadian Co., DMJ, the Gen-X Companies, Xxxxxx or
Xxxxxxxxxxx, as the case may be, cures such default, breach or violation within
sixty (60) days after the occurrence of such default, breach or violation; or
(b) an Event of Default under the Subordinated Note Agreement, dated
as of the date hereof, among Global, U.S. Co., Canadian Co., Gen-X Holdings
Inc., a Washington Corporation, Gen-X Equipment Inc., an Ontario corporation,
Gen-X Holdings Ltd., a Washington corporation and Gen-X Equipment A.G., a
_____________ corporation, as defined therein.
3. Consideration. Each Covenantor expressly acknowledges that (a) the
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restrictive covenants of this Agreement (the "Covenants") are a material part of
the consideration bargained for by U.S. Co., Canadian Co. and DMJ, (b) without
the agreement of such Covenantor to be bound by the Covenants, U.S. Co.,
Canadian Co. and DMJ would not have agreed to enter into the Acquisition
Agreement and consummate the transactions contemplated thereby.
4. Enforcement. Each Covenantor expressly acknowledges that any breach
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of any of the Covenants will result in irreparable injury to the Gen-X Companies
for which money damages could not adequately compensate. If there is such a
breach, the Gen-X Companies shall be entitled, in addition to all other rights
and remedies they may have at law or equity, to have an injunction issued by any
competent court enjoining and restraining such breaching Covenantor and all
other Persons involved therein from continuing such breach. The existence of
any claim or cause of action which either Covenantor or any such other Person
may have against the Gen-X Companies shall not constitute a defense or bar to
the enforcement of any of the Covenants. If the Gen-X Companies must resort to
litigation to enforce any of the Covenants that has a fixed term, then such term
shall be extended for a period of time equal to the period during which a breach
of such Covenant was occurring, beginning on the date of a final court order
(without further right of appeal) holding that such a breach occurred or, if
later, the last day of the original fixed term of such Covenant.
5. Scope. If any portion of any Covenant or its application is construed
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to be invalid, illegal or unenforceable, then the other portions and their
application shall not be affected thereby and shall be enforceable without
regard thereto. If any of the Covenants is determined to be unenforceable due
to its scope, duration, geographical area or similar factor, then the court
making such determination shall have the power to reduce or limit such scope,
duration, are or other factor, and such Covenant shall then be enforceable in
its reduced or limited form.
6. Reasonableness. Each Covenantor expressly acknowledges that this
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Agreement is reasonable and valid in all respects and irrevocably waives (and
irrevocably agrees not to raise) as a defense any issue of reasonableness
(including the reasonableness of the noncompetition covenant insofar as it
relates to the business of the Gen-X Companies, the Territory or the duration or
scope of this Agreement) in any proceeding to enforce any provision of this
Agreement, the intention of the parties being to provide for the legitimate and
reasonable protection of the interests of the Gen-X Companies and by providing,
without limitation, for the broadest scope, the longest duration and the widest
territory allowable by law.
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7. 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 or the
signature pages 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 Pledgor, shall be
simultaneously sent to Xxxxxx & Elliot, Scotia Plaza, 00 Xxxx Xxxxxx Xxxx,
Xxxxxxx, Xxxxxxx X0X 0X0, Xxxxxx, Attn: Xxxxxx X. Xxxxx. A copy of each notice
to the Secured Party 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 7(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 the Gen-X Companies unless in writing and signed by the Gen-
X Companies. No waiver with respect to this Agreement shall be enforceable
against either Covenantor unless in writing and signed by such Covenantor.
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.
(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.
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(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 APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED SOLELY THEREIN,
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 7(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 Non-Competition
Agreement as of the date first above written.
GEN-X HOLDINGS INC. GEN-X EQUIPMENT INC.
By: _______________________________ By: _______________________________
Name: Name:
Title: Title:
___________________________________
XXXXXXX X. XXXXX
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