NON-COMPETITITON
AGREEMENT
THIS AGREEMENT is made as of the 10th day of
December, 2008.
PROVIANT TECHNONOLGIES,
INC. (hereinafter called
the “Vendor”)
- and-
SPORTS SUPPLEMENT ACQUISITION
GROUP, INC. (hereinafter
called the “Corporation” or
“SSAG”)
WHEREAS SSAG has entered into an Asset Purchase,
Technology Transfer and License Agreement (the “Purchase
Agreement”) dated as of December 10, 2008, whereby SSAG shall
purchase certain assets of the Vendor;
AND WHEREAS consummation of the transactions
contemplated by the Purchase Agreement by SSAG is conditional on,
inter alia, the execution and delivery of this Agreement by
the Vendor;
AND WHEREAS the Vendor is a party to the
Purchase Agreement and is obtaining consideration
thereunder;
NOW, THEREFORE, in order to facilitate the
consummation of the transactions contemplated by the Purchase
Agreement, in consideration of the sum of Ten Dollars
($10.00) and in consideration of the premises and the
covenants hereinafter set forth, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto acknowledge, agree
and covenant as follows:
ARTICLE 1
INTERPRETATION
In this Agreement, unless otherwise defined
here, capitalized terms shall have the meanings given to such terms
in the Purchase Agreement Certain other terms are
defined in this Agreement, including the recitals and this Section,
and the words and phrases set forth below shall have the following
meanings, namely:
“Current
Businesses Acquired by SSAG” means the business of the Vendor
with respect to the sale of the Products solely in the sports
nutrition market;
“Proprietary Information” means
confidential information owned, controlled or in the possession of
the Corporation and the Vendor, including, without
limitation:
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trade secrets
and confidential or proprietary information, knowledge, documents
or materials owned, developed or possessed by the Corporation or
the Vendor, whether in tangible or intangible form, which are not
publicly disseminated information; and
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information
pertaining to the Corporation’s or the Vendor’s
research, operations, customers (including identities of customers
and prospective customers, identities of individual contacts at
business entities which are customers or prospective customers, and
their respective preferences, businesses or habits), business
relationships (including those with suppliers and others), products
(including prices, costs, markets, sales or contents), mailing
lists, marketing or sales strategies, financial information or
measures, business methods, future business plans, databases,
matters of a technical nature (including know-how, data, formulae,
secret processes and designs and models), operating procedures,
knowledge of the Corporation’s or the Vendor’s
organization, and other information owned, developed or possessed
by or on behalf of the Corporation but does not include
information, knowledge, documents or materials which become public
knowledge through no fault or omission of the Vendor.
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Notwithstanding
the foregoing, Proprietary Information shall not include
information that is or becomes a part of the public domain through
no direct or indirect act or omission of the Vendor.
“Purchase Agreement” has the meaning
ascribed to that term in the recitals;
“Products” has the meaning given to
such term in the Purchase Agreement;
“Restricted Period” has the meaning
ascribed to that term in Section 3.1; and
“Territory” means the
world.
1.2 Articles,
Sections and Headings
The division of this Agreement into Articles,
Sections and subsections and the insertion of headings are for
convenience of reference only and shall not affect the construction
or interpretation of this Agreement. Unless otherwise stated
specifically in this Agreement, any reference in this Agreement to
an Article, Section or subsection refers to the specified Article,
Section or subsection of this Agreement.
1.3
Rules of Construction
Unless the context otherwise
requires:
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words importing
the singular number only shall include the plural and vice versa
and words including the masculine gender shall include the feminine
and neuter genders and vice versa; and
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the word
“including” means including without
limitation.
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ARTICLE 2
PROPRIETARY AND CONFIDENTIAL
INFORMATION
2.1 Proprietary
Information
The Vendor acknowledges and agrees
that:
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it is privy to
the Proprietary Information;
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the Proprietary
Information is unique and valuable to the Corporation;
and
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the Corporation
would suffer irreparable injury if the Proprietary Information, or
any portion thereof, was divulged to those in competition with the
Corporation.
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Except with the prior written approval of SSAG,
the Vendor shall not:
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directly or
indirectly, disclose any Proprietary Information to any person
except authorized personnel of SSAG or the Vendor or as required by
law; nor
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publish or make
use of any Proprietary Information in any manner
whatsoever.
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2.3 Disclosure
of Proprietary Information
Prior to any disclosure of the Proprietary
Information which is required by law, the Vendor, if permitted by
law, shall give SSAG reasonable prior notice of any such
disclosure, and, if requested by and at the expense of SSAG, shall
permit and co-operate with any effort by SSAG to obtain a
protective order or similar protection. SSAG shall reimburse the
Vendor for all reasonable costs it incurs in assisting SSAG in
seeking such an order.
ARTICLE 3
NON-COMPETITION
For a period commencing on the Closing Date and
continuing thereafter until the seventh anniversary of
the Closing Date (the “Restricted Period”), the Vendor
ag
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