EXHIBIT 10.3.7
NON-COMPETITION AGREEMENT
THIS AGREEMENT is made and entered into as of September 16, 1997, by
and between SKY-TRACKER OF AMERICA, INC.,28007 Front Street, Temecula,
California 92590, a California corporation (the "Seller"), MARLOWE A. PICHEL,
a California resident ("Pichel"), and BALLANTYNE OF OMAHA, INC., 4350
McKinley Street, Omaha, Nebraska 68112, a Delaware corporation (the "Buyer").
WHEREAS, Buyer and Seller have entered into an Asset Purchase Agreement
dated as of the 8th day of September, 1997 (the "Asset Purchase Agreement")
wherein Seller has agreed to sell, and Buyer has agreed to buy, all of the
operating assets of Seller pertaining only to certain product lines of search
lights and illumination equipment manufactured and sold by Seller; and
WHEREAS, pursuant to the Asset Purchase Agreement, Buyer has agreed to
enter into a Consulting Agreement with Pichel for a three (3) year period
following the closing of the transactions contemplated in the Asset Purchase
Agreement; and
WHEREAS, it is specifically provided that as an integral part of said
transaction, an agreement not to compete would be set forth in a separate
agreement between the parties, and that this Agreement is in fulfillment of
the same.
NOW, THEREFORE, for the consideration mentioned in the Asset Purchase
Agreement, and in consideration of the purchase by Buyer of certain of the
operating assets of Seller, which is in the business of the design,
manufacture, marketing, distribution, and sale of search lights and
illumination equipment, and in consideration of the Consulting Agreement
between Pichel and Buyer, and in consideration of Sixty Thousand Dollars
($60,000) to be paid to Pichel as hereinafter provided, the parties agree as
follows, to wit:
1. Seller and Pichel jointly and severally agree that for a period of
time beginning on September 16, 1997, and ending on a date which is three
(3) years after the date of the termination of Pichel's Consulting Agreement
with the Buyer, or any extension thereof, or on September 16, 2002,
whichever date shall be later, Seller and Pichel, or either of them, shall not,
without Buyer's prior written consent, directly or indirectly, own, manage,
operate, join, control, be employed by, or participate in the ownership,
management, operation or control of, or assist any other person, firm, or
corporation as an employee or otherwise, in the ownership, management,
operation or control, financial or otherwise, of any business or organization
anywhere in the world which, directly or indirectly, competes with the
lighting business of the Buyer or its affiliated or subsidiary companies; and
Seller and Pichel, or either of them, shall not, directly or indirectly, by
themselves or through others, make, manufacture, assemble, sell, distribute or
otherwise deal in lighting products similar to those manufactured, assembled,
sold or distributed by Buyer. Pichel hereby agrees that he shall not, as a
director, an officer, and a stockholder of Seller, take any action which
would cause the Seller to be in violation of any provision of this Agreement.
2. Seller specifically acknowledges that the market for its lighting
business is global and that the restrictions on competition herein contained
are fair and reasonable.
3. Seller and Pichel specifically acknowledge that a breach by them or
either of them of this Agreement would cause Buyer irreparable harm which
could not be adequately compensated by monetary damages, and therefore,
Seller and Pichel expressly agree that Buyer shall be entitled to injunctive
or other equitable relief from any court having jurisdiction of the parties
to prevent a breach of this Agreement, and that said injunctive or other
equitable relief shall be in addition to any and all other remedies which may
be available to Buyer.
4. As consideration for this Non-competition Agreement, Buyer agrees to
pay to Seller and Pichel the total sum of Sixty Thousand Dollars ($60,000),
payable in three (3) annual installmants of Twenty Thousand Dollars ($20,000)
each, the first such installment being paid simultaneously with the execution
hereof, and such installments continuing on the same date each year until
said total sum shall be paid in full.
5. This Agreement shall be construed, interpreted and the rights of the
parties determined in accordance with the laws of the State of California
(without reference to the choice of law provisions of California law).
6. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, successors, personal
representatives and assigns, and no other person shall have any right,
benefit or obligation hereunder, as a third-party beneficiary or otherwise.
7. In the event that any one or more of the provisions contained in
this Agreement or in any other instrument referred to herein shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect, then
to the maximum extent permitted by law, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement or
any other such instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
SKY-TRACKER OF AMERICA, INC. MARLOWE A. PICHEL
"Seller" "Pichel"
By /s/ Marlowe A. Pichel /s/ Marlowe A. Pichel
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Marlowe A. Pichel, Its President Marlowe A. Pichel
BALANTYNE OF OMAHA, INC.
"Buyer"
By /s/ Ronald H. Echtenkamp
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Ronald H. Echtenkamp, Vice Chairman
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