MUTUAL NON-COMPETITION AGREEMENT
In consideration of the mutual promises contained herein and for such other good
and valuable consideration, the receipt and sufficiency are hereby acknowledged,
NEXLAND, INC., an Arizona corporation (together with its successors, assigns and
other legal representatives, if and where applicable, "Nexland"), and NEXLAND,
S.A., a corporation formed under the laws of France (together with its
successors, assigns and other legal representatives, if and where applicable,
"Nexland France"; together with Nexland, the "Parties," and each a "Party")
covenant and agree as follows:
1. Competition. Each Party acknowledges and agrees that the other would
suffer injury in the event of competition between them. As such, it is
covenanted and agreed as follows:
(a) Effective as of November 17, 2000, and continuing for a period
of five (5) years (the "Restricted Period"), Nexland agrees
that it will not, directly or indirectly, operate, organize,
maintain, establish, manage, own, participate in any business
or venture in any part of Europe (the geographic region of
Europe with respect to Nexland France, and the rest of the
world with respect to Nexland, are referred to herein as each
entity's respective "Restricted Territory") which engages in
the business or other areas of activity of Nexland France or
is otherwise in competition with products or services being
developed, manufactured, marketed, provided or sold by Nexland
France, unless such activity shall have been previously agreed
to in writing by Nexland France;
(b) During the Restricted Period, Nexland France agrees that it
will not, directly or indirectly, operate, organize, maintain,
establish, manage, own, participate in any business or venture
in any part of the Restricted Territory of Nexland, which
engages in the business or other areas of activity of Nexland
or is otherwise in competition with products or services being
developed, manufactured, marketed, provided or sold by
Nexland, unless such activity shall have been previously
agreed to in writing by Nexland;
(c) During the Restricted Period, neither Party shall, directly or
indirectly, divert business from the other.
(d) Notwithstanding anything herein contained to the contrary, a
Party shall not be deemed to be in breach of this Agreement if
it enters into an agreement covering the Restricted Territory
of the other Party. In such instances, that portion of the
agreement concerning the Restricted Territory shall be
assigned to the Party having rights under this Agreement over
such Restricted Territory. The assignee Party shall pay an
amount equal to 20% of such gross sales amount to the assignor
Party.
(e) In the event that either Party receives a commercial inquiry
from a third party located in the Restricted Territory of the
other, such Party shall refer or otherwise direct the inquiry
to the Party holding rights under this Agreement to such
Restricted Territory.
2. Reasonableness of Restrictions. Each Party has carefully read and
considered the provisions of Section 1 hereof and, having done so,
agrees that the covenants set forth therein are fair and reasonable and
are reasonably required to protect the legitimate business interests of
the other. Each Party agrees that if a court of competent jurisdiction
holds any of the covenants set forth in Section 1 unenforceable, the
court shall substitute an enforceable covenant that preserves, to the
maximum lawful extent, the scope, duration and all other aspects of the
covenants deemed unenforceable, and that any such covenant substituted
by the court shall be immediately enforceable against either Party. The
foregoing shall not be deemed to affect the right of the Parties to
appeal any decision by a court concerning this Agreement.
3. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without regard to the
conflict of laws principles thereof.
4. Suits in Florida. The Parties agree that any action or proceeding
relating in any way to this agreement shall be brought exclusively in
the state or federal court of competent subject matter jurisdiction in
Miami-Dade County, Florida. The Parties expressly voluntarily consent
to personal jurisdiction and venue in these courts, and expressly waive
any objection to jurisdiction or venue in these courts.
5. Severability. Each provision hereof shall be deemed a separate
agreement, severally and independently enforceable, regardless of the
invalidity or unenforceability of any other provision. Any invalid or
unenforceable provision shall be deemed, without further action on the
part of the parties, to be modified, amended and limited solely to the
extent necessary to render the same valid and enforceable.
6. Waiver of Jury Trial. The parties hereby knowingly, voluntarily and
intentionally waive the right either may have to a trial by jury in
respect of any litigation based hereon, or arising out of, under or in
connection with this agreement and any document executed in connection
herewith or related hereto, or any course or conduct, or actions or
statements (oral or written) of either party. This provision is a
material inducement for the parties to enter into this transaction.
THE UNDERSIGNED HAVE READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND UNDERSTAND
AND AGREE TO EACH OF THEM.
NEXLAND, INC., an Arizona corporation NEXLAND, S.A., a French corporation
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxx Xxxxxx Name: Xxxxxx X. Xxxxxx
Title: President Title:
Date: Date:
