EXHIBIT 10.3
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT (this "Agreement") is made as of the __th
day of September, 1996, by and among 3D SYSTEMS, INC., a California corporation
("3D") and Wayne O. Duescher ("Covenantor").
RECITALS
3D is purchasing from Keltool all of the assets (the "Assets") of Keltool,
together with the goodwill of Keltool (collectively, the "Business"), located
at 561 Shoreview Park Road, St. Paul, Minnesota 55126, pursuant to that certain
Asset Purchase Agreement dated August 30, 1996 (the "Purchase Agreement").
Covenantor has, in consideration of 3D entering into the Purchase Agreement,
which Purchase Agreement would not have been entered into by 3D if Covenantor
was unwilling to execute this Agreement, agreed to execute this Agreement and
perform his obligations hereunder.
AGREEMENT
NOW, THEREFORE, in reliance on the foregoing facts and in consideration of
the mutual covenants and agreements contained herein, the parties hereto agree
as follows:
1. NON-COMPETITION. During the term hereof Covenantor agrees that,
throughout the State of Minnesota, any other state or territory of the United
States, or anywhere else in the World, he shall not, without the prior
written consent of 3D (which consent may be withheld by 3D in the exercise of
its sole and absolute discretion), directly or indirectly, own, manage,
operate, join, control, finance or participate in the ownership, management,
operation, control or financing of, or be connected as an officer, director,
employee, principal, agent, representative, consultant, investor, owner,
partner, stockholder (except as a holder of less than 2% of the issued and
outstanding voting stock of a publicly held corporation), member, manager
joint venturer or otherwise permit his name to be used by or in connection
with, or lease, sell, or permit to use any real property or interest therein
owned by him to, any business which is in any manner competitive with the
Business, as conducted during the one year period prior to the date hereof;
provided however, that Covenantor may continue to conduct the business of
Keltech Engineering as currently conducted (the "Keltech Business"). It is
agreed that the Keltech Business as currently conducted does not involve the
manufacture of, sale of, or provision of services to enable or facilitate the
manufacture or creation of, any hard tools or molds for hard tools. In
connection with and in addition to the foregoing, Covenantor agrees during
the term hereof not to: (i) hire or offer employment to any employee of 3D
or any of its affiliates unless 3D first terminates the employment of such
employee (except with respect to Matt Mullenburg, who Conventor may hire or
offer employment to upon the earlier of (x) the relocation of the Assets
and Business of Keltool to California, or (y) after six months after the
Closing of the sale pursuant to the Purchase Agreement); or (ii) solicit,
divert, or take away from 3D and its affiliates the business of any
individual, corporation, trust, estate, partnership, joint venture,
association, limited liability company, governmental bureau or other entity
of whatsoever kind or nature ("Person") who or which at the time of the
Closing or at any time within the three years prior to such time or at any
time thereafter, was a customer of the Business.
2. CONFIDENTIAL INFORMATION. Covenantor agrees that he will not, during
the term of this Agreement or at any time thereafter, use or disclose to any
Person other than 3D or its affiliates or their respective employees acting on
behalf of 3D or its affiliates, any customer list, potential customer list,
records, techniques, business secrets, trade secrets or any other information
with respect to the Business not available generally in the rapid prototype
tooling or moldmaking industries and not known to competitors of 3D or its
affiliates or other third parties unaffiliated with 3D or its affiliates
("Confidential Information") except as may be required by order of court or
other governmental agency, provided that Covenantor shall have first provided
3D with notice of such order and an opportunity to object.
3. CONSIDERATION. As consideration for the covenants and agreements of
Covenantor contained herein, 3D has agreed to execute the Purchase Agreement
and the exhibits thereto, and to perform its obligations thereunder. The
parties hereto agree that $250,000 of the Purchase Price (as that term is
defined in the Purchase Agreement) has been allocated to the covenants and
agreements of Covenantor contained herein. Covenantor hereby acknowledges
that 3D has been materially induced to enter into the Purchase Agreement and
to make the payments provided for thereunder by and in reliance on
Covenantor's execution of this Agreement, such execution of this Agreement
being a condition precedent to 3D's obligation to consummate the Purchase
Agreement, and agreement to comply with the covenants and agreements
contained therein.
4. TERM AND TERMINATION. The term of this Agreement shall commence on
the date hereof and shall terminate on that date which is five (5) years
following the date of this Agreement.
5. INJUNCTIVE RELIEF AND OTHER REMEDIES UPON BREACH BY COVENANTOR.
Covenantor acknowledges and agrees that (i) the provisions of this Agreement
are reasonable and necessary to protect the legitimate interests of 3D, and
(ii) in the event of any breach by Covenantor of any of Covenantor's
covenants and agreements contained herein, 3D would encounter extreme
difficulty in attempting to prove the actual amount of damages suffered by it
as a result of such breach, 3D would not have an adequate remedy at law in
such event and, therefore, in addition to any other remedy it may have at law
or in equity in the event of any such breach, 3D shall be entitled to seek
and receive specific performance and temporary, preliminary and permanent
injunctive relief from violation of any of the provisions of this Agreement
from any court of competent jurisdiction without the necessity of proving the
amount of any actual damages to it resulting from such breach.
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6. MISCELLANEOUS.
6.1 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and assigns. No party other than 3D may assign any of its rights,
or delegate any of its duties or obligation, under this Agreement without the
prior written consent of the other parties, and any such purported assignment
or delegation shall be void AB INITIO. Notwithstanding the foregoing, 3D,
its affiliates, and its successors and assigns, may assign its rights and
delegate its duties to any successor entity resulting from any liquidation,
merger, consolidation, reorganization, or transfer of all or substantially
all of the assets or stock of 3D or the Business of 3D.
6.2 NOTICES. All notices, demands and other communications
(collectively, "Notices") given or made pursuant to this Agreement shall be
in writing and shall be deemed to have been duly given if sent by registered
or certified mail, return receipt requested, postage and fees prepaid, by
overnight service with a nationally recognized "next day" delivery company
such as Federal Express or United Parcel Service, by facsimile transmission
(confirmation received), or otherwise actually delivered to the following
addresses:
(a) if to 3D:
3D Systems, Inc.
26081 Avenue Hall
Valencia, California 91355
Attn: A. Sidney Alpert
Fax: (805) 257-1200
(b) if to Covenantor:
Wayne O. Duescher
559 Shoreview Road
Shoreview, MN 55126
Any Notice shall be deemed duly given when received by the addressee thereof,
provided that any Notice sent by registered or certified mail shall be deemed
to have been duly given two business days from the date of deposit in the
United States mails, unless sooner received and any notice sent by overnight
service as provided above shall be deemed to have been duly given the next
business day from date of deposit with the service. Any of the parties to
this Agreement may from time to time change its address for receiving notices
by giving written notice thereof in the manner set forth above.
6.3 AMENDMENT; WAIVER. No provision of this Agreement may be waived
unless in writing signed by all of the parties to this Agreement, and the waiver
of any one
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provision of this Agreement shall not be deemed to be a waiver of any other
provision. This Agreement may be amended only by a written agreement
executed by all of the parties to this Agreement.
6.4 GOVERNING LAW. This Agreement shall be governed by and construed
both as to validity and performance and enforced in accordance with the laws of
the State of California without giving effect to the choice of law principles
thereof.
6.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
6.6 REMEDIES CUMULATIVE. Each of the various rights, powers and
remedies shall be deemed to be cumulative with, and in addition to, all the
rights, powers and remedies which each party may have hereunder or under
applicable law relating hereto or to the subject matter hereof, and the exercise
or partial exercise of any such right, power or remedy shall constitute neither
an exclusive election thereof nor a waiver of any other such right, power or
remedy.
6.7 HEADINGS. The section and subsection headings contained in this
Agreement are included for convenience only and form no part of the agreement
between the parties.
6.8 SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be or
become prohibited or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
6.9 EXPENSES. Each party shall pay its own costs, expenses,
including without limitation, the fees and expenses of their respective counsel
and financial advisors.
6.10 ENTIRE AGREEMENT. This Agreement, including the other agreements
and schedules to be entered into in connection with the transactions
contemplated by the Purchase Agreement constitutes and embodies the entire
understanding and agreement of the parties hereto relating to the subject matter
hereof and there are no other agreements or understandings, written or oral, in
effect between the parties relating to such subject matter except as expressly
referred to herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Non-Competition
Agreement as an instrument under seal as of the day and year first set forth
above.
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WAYNE O. DUESCHER
3D SYSTEMS, INC.
a Delaware corporation
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By:
Its: