Exhibit 10.4
NON-COMPETE AGREEMENT
THIS AGREEMENT (the "Agreement") dated as of the ___21___ day of September,
1999, between xxxxxxxxxxxxxxxx.xxx corp., a Florida corporation ("Online "), and
Xxxxxxx Xxxxxxxxxx ("Xxxxxxxxxx").
WHEREAS, Xxxxxxxxxx is a principal employee of Newport Discount Brokerage, Inc.
("Newport"); and
WHEREAS, Online and Newport have entered into an Asset Purchase Agreement in
which Online has agreed to purchase Newport's clients; and
WHEREAS, Online desires to protect said purchase and its future business with
said clients pursuant to the terms of this Agreement.
NOW, THEREFORE, In consideration of the mutual covenants contained herein, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. Non-Compete. Until the fifteenth (15) anniversary of the date of
this Agreement or the fifteenth (15) anniversary of the termination of
Xxxxxxxxxx'x employment with Online for any reason (which ever is later),
Xxxxxxxxxx shall not persuade or attempt to persuade any person or entity which
is or was a customer, client or supplier of Online or Newport at or within one
year prior to the date of this Agreement, or the termination of Xxxxxxxxxx'x
employment with Online for any reason (which ever is later), to cease doing
business with Online with regard to any of Online's business activities, or to
reduce in any way the amount of business it does with Online with regard to any
of Online's business activities or accept any un-solicited business from said
person(s) or entities.
2. Acknowledgement. Xxxxxxxxxx acknowledges that the restrictive
covenants (the "Restrictive Covenants") contained in Section 1 is a condition of
the Asset Purchase Agreement and are reasonable and valid in geographic and
temporal scope and in all other respects. If any court determines that any of
the Restrictive Covenants, or any part of any of the Restrictive Covenants, is
invalid or unenforceable, the remainder of the Restrictive Covenants and parts
thereof shall not thereby be affected and shall be given full effect, without
regard to the invalid portion. If any court determines that any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable because
of the geographic or temporal scope of such provision, such court shall have the
power to reduce the geographic or temporal scope of such provision, as the case
may be, and, in its reduced form, such provision shall then be enforceable.
4. Monetary Consideration. In exchange for the Restrictive Covenants
and other covenants contained herein, Online shall pay Xxxxxxxxxx the sum of
$250,000.00 upon Closing of the transaction set forth in the Asset Purchase
Agreement.
5. Remedies. If Xxxxxxxxxx breaches, or threatens to breach, any of the
Restrictive Covenants, Online, in addition to and not in lieu of any other
rights and remedies it may have at law or in equity, shall have the right to
injunctive relief; it being acknowledged and agreed to by the Xxxxxxxxxx that
any such breach or threatened breach would cause irreparable and continuing
injury to Online and that money damages would not provide an adequate remedy to
Online.
6. Waiver. The waiver by either party of a breach of any provision of this
Employment Agreement shall not operate or be construed as a waiver of any
subsequent breach.
7. Successors and Assigns. The rights and obligations of Online under this
Agreement shall inure to the benefit of and shall be binding in all respects
upon its successors and assigns.
8. Amendments. No change or modification of this Agreement shall be valid unless
it is in writing and signed by the party against whom the change or modification
is sought to be enforced.
9. Governing Law. All questions regarding the validity and interpretation of
this Employment Agreement shall be governed by and construed and enforced in all
respects in accordance with the laws of the State of Florida.
10. Arbitration. Except as specifically provided herein, all disputes between
the parties arising out of and under this Agreement shall be submitted to the
American Arbitration Association (AAA) located in Palm Beach County, Florida.
The decision of the AAA shall be binding on all parties.
11. Preliminary Injunctive Relief. Notwithstanding any provision to the
contrary, Online is entitled to seek preliminary injunctive relief (e.g.
temporary restraining or temporary injunction) from a court of competent
jurisdiction prior to and while any arbitration proceeding is pending.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement in
duplicate on the date and year first above written.
xxxxxxxxxxxxxxxx.xxx corp.
_/s/ Xxxxxxx Xxxxxxxxxx _/s/ Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxxx Xxxxxxx Xxxxxxxxx, CIO
