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EXHIBIT 10.12
AGREEMENT
NOT TO COMPETE
BY AND AMONG:
SIERRA PRESS
&
PANORAMA
7/10/96
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AGREEMENT
NOT TO COMPETE
BY AND AMONG:
SIERRA PRESS
&
PANORAMA
7/10/96
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AGREEMENT NOT TO COMPETE
THIS AGREEMENT NOT TO COMPETE (this "Agreement") is entered into as of
this 10th day of July 1996, to be effective as of July 1, 1996 by and between
PANORAMA INTERNATIONAL PRODUCTIONS, INC., a Delaware corporation ("Buyer"), and
SIERRA PRESS, INC., a Delaware corporation ("Seller") and ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇, individuals (collectively "Owners").
A. Owners owns all of the capital stock of Seller.
B. Seller is engaged in the publishing business (the "Business").
C. Owners and Seller wish to induce Buyer or its designee to
acquire all of Seller's assets and Buyer or its designee is willing to acquire
all of the Seller's assets pursuant to an Asset Purchase Agreement dated as of
June 18, 1996 (the "Asset Purchase Agreement"), provided that Buyer has
received, among other consideration, the assurances of the Owners contained in
this Agreement.
NOW, THEREFORE, in consideration of these premises and the covenants
contained herein, the parties hereto hereby agree as follows:
1. Covenant Not To Compete.
For a period of five (5) years from and after the date hereof,
the Owners, nor any person, firm or corporation controlling, controlled by, or
under common control of the Owners shall, directly or indirectly, engage in the
Business in the Territory, whether as a shareholder (other than as a
shareholder of up to five percent (5%) of the total shares of all classes of
stock outstanding of any corporation with publicly-traded securities), partner,
proprietor, associate, representative, or otherwise; provided, however, that
such covenant not to compete shall not preclude the submission by Owners of
photograph work to other publishers, not competitive with the publications of
Buyer or its subsidiaries.
2. Injunction.
Owners acknowledge that the remedy at law for any breach of
Section 1 hereof will be inadequate and, accordingly, they covenant and agree
that Buyer shall, in addition to any other rights or remedies which it may
have, be entitled to seek such equitable and injunctive relief as may be
available from any court of competent jurisdiction to restrain them from any
violation of such provisions. Such right to obtain injunctive relief may be
exercised, at the option of Buyer, concurrently with, prior to, after, or in
lieu of, the exercise of any other rights or remedies Buyer may have as a
result of any such breach or threatened breach.
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3. Geographic and Time Scope.
Owners acknowledge that the provisions of this Agreement, both
as to time and area covered, are necessary to protect the rights of Buyer and
the goodwill that is part of the Business. It is Owners' intention that this
Agreement be enforced to the greatest extent (but to no greater extent) in
time, area and degree of participation as is permitted by law. If any portion
of this Agreement is held to be unreasonable, arbitrary or against public
policy, the provisions of this Agreement shall be considered divisible both as
to time and as to geographic areas; and each month of each year of the
specified period shall be deemed to be a separate period of time. In the event
any court or arbitrator determines the specified time period or geographic area
to be unreasonable, arbitrary or against public policy, such court or
arbitrator shall have the authority to limit such time period or geographical
area to the extent necessary so as to make this Agreement enforceable.
4. General Provisions.
4.1 Complete Agreement; Modifications. This Agreement
and any documents referred to herein or executed contemporaneously herewith
constitute the parties entire agreement with respect to the subject matter
hereof and supersede all agreements, representations, warranties, statements,
promises and understandings, whether oral or written, with respect to the
subject matter hereof. This Agreement may not be amended, altered or modified
except by a writing signed by the parties.
4.2 No Third-Party Benefits; No Assignment. None of the
provisions of this Agreement shall be for the benefit of, or enforceable by,
any third-party beneficiary. Buyer shall not assign any of its rights under
this Agreement without the prior written consent of the other parties hereto.
4.3 Governing Law. All questions with respect to this
Agreement and the rights and liabilities of the parties will be governed by the
laws of the State of California, regardless of the choice of law provisions of
California or any other jurisdiction.
4.4 Arbitration. Except for actions seeking injunctive
relief, which may be brought before any court having jurisdiction, any claims
arising out of or relating to this Agreement which are not settled by agreement
between the parties, shall be settled by arbitration in accordance with the
procedures set forth in the Share Exchange Agreement.
4.5 Headings. The Article and Section headings in this
Agreement are inserted only as a matter of convenience, and in no way define,
limit, or interpret the scope of this Agreement or of any particular Article or
Section.
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4.6 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have signed this Agreement as
of the date first set forth above.
PANORAMA INTERNATIONAL PRODUCTIONS,
INC., a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman
SIERRA PRESS, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary/Treasurer
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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/s/ ▇▇▇▇ ▇▇▇▇▇▇
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