EXHIBIT 10.4
JD NON-COMPETITION AGREEMENT
September 18, 1996
JWL Associates Corp.
and Razorfish, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
Pursuant to the Stock Purchase Agreement of even date herewith (the
"PURCHASE AGREEMENT"), JWL Associates Corp. ("PURCHASER"), acquired a 40% equity
interest in Razorfish, Inc., a New York corporation (the "COMPANY") and, under
certain circumstances, an option to increase this to an 80% equity interest in
the Company. The undersigned is a shareholder in the Company and has an
interest in the purchase price paid and to be paid under the said Purchase
Agreement. Capitalized terms used herein but not defined herein shall have the
meanings given to such terms in the Purchase Agreement.
As an inducement to the Purchaser to consummate the transactions
contemplated by the Purchase Agreement, the undersigned hereby covenants and
agrees that from the date hereof through the later of (x) December 31, 2001 and
(y) one year after termination of employment with the Company, he will not,
except on behalf of the Company, directly or indirectly, and regardless of his
continuing to be employed by the Company or the reason for his ceasing to be
employed by the Company:
(1) attempt in any manner to solicit from any client business of the
type performed by the Company or to persuade any client to cease to do
business or to reduce the amount of business which any such client has
customarily done or is reasonably expected to do with the Company, whether
or not the relationship between the Company and such client was originally
established in whole or in part through his efforts; or
(2) employ as an employee or retain as an exclusive consultant any
person who is then or at any time during the preceding twelve months was an
employee of or exclusive consultant to the Company, or persuade or attempt
to persuade any employee of or exclusive consultant to the Company to leave
the employ of the Company or to become employed as an employee or retained
as a consultant by anyone other than the Company; or
(3) render to or for any client any services of the type which are
rendered by the Company.
As used herein, the term "Company" shall include subsidiaries of the
Company; and the term "client" shall mean (i) anyone who is a client of the
Company at the time of the termination of the undersigned's employment with the
Company, or if the undersigned's employment shall not have terminated, at the
time of the alleged prohibited conduct (the "DETERMINATION DATE"); (ii) anyone
who was a client of the Company at any time during the two year period
immediately preceding the Determination Date; and (iii) any prospective clients
to whom the Company made a new business presentation at any time during the one
year period immediately preceding the Determination Date.
The undersigned acknowledges that his position with the Company
requires the performance of services which are special, unique, extraordinary
and of an intellectual character, and places and will continue to place him in a
position of confidence and trust with the clients of the Company. Accordingly,
the undersigned acknowledges that the restrictive covenants above are necessary
in order to protect and maintain the trade secrets, business and assets and
goodwill of the Company.
The undersigned acknowledges that a breach of the covenants contained
in this Agreement may cause the Purchaser irreparable damage, the exact amount
of which will be difficult to ascertain, and that the remedies at law for any
such breach will be inadequate. Accordingly, the undersigned agrees that each
of the Purchaser and the Company shall, in addition to all other available
remedies (including without limitation seeking such damages as it can show it
has sustained by reason of such breach), be entitled to specific performance and
injunctive relief without being required to post bond or other security and
without having to prove the inadequacy of the available remedies at law.
The parties acknowledge that the time, scope, geographic area and
other provisions of this Agreement have been specifically negotiated by
sophisticated commercial parties and agree that all such provisions are
reasonable under the circumstances of the transactions contemplated by the
Purchase Agreement and are given as an integral and essential part of the
transactions contemplated by the Purchase Agreement, it being understood that
the clients of the Company may be serviced from any location and accordingly it
is reasonable that the restrictive covenants set forth herein are not limited by
narrow geographic area but generally by the location of such clients and
potential clients. The undersigned specifically acknowledges that his being
restricted from servicing clients and prospective clients as contemplated by
this Agreement will not prevent him from being employed or earning a livelihood
in the type of business conducted by the Company. In the event that any
covenant contained in this Agreement shall be determined by any court of
competent jurisdiction to be unenforceable by reason of its extending for too
great a period of time or over too great a geographical area or by reason of its
being too extensive in any other respect, it shall be interpreted to extend only
over the maximum period of time for which it may be enforceable and/or over the
maximum geographical area as to which it
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may be enforceable and/or to the maximum extent in all other respects as to
which it may be enforceable, all as determined by such court in such action. The
existence of any claim or cause of action which the undersigned may have against
the Purchaser or the Company shall not constitute a defense or bar to the
enforcement of any of the provisions of this Agreement and shall be pursued
through separate court action by the undersigned.
The undersigned acknowledges that the Purchaser, the Company and the
undersigned intend to and hereby confer jurisdiction to enforce the covenants
contained in this Agreement upon the courts of any state or other jurisdiction
within the geographical scope of such covenants in which a breach or alleged
breach of a covenant contained herein has been alleged to have occurred. In the
event that the courts of one or more of such states or other jurisdictions shall
hold such covenants unenforceable (in whole or in part) by reason of the breadth
of such scope or otherwise, it is the intention of the parties hereto that such
determination not bar or in any way affect the right of the Purchaser and/or the
Company to the relief provided above in the courts of any other states or other
jurisdictions within the geographical scope of such covenants, as to breaches of
such covenants in such other respective states or other jurisdictions, the above
covenants as they relate to each state or other jurisdiction being, for this
purpose, severable into diverse and independent covenants.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, successors
and assigns.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York (without reference to choice of law provisions
of New York law).
In the event any provision of this Agreement is found to be void and
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall nevertheless be binding upon the parties hereto with the
same effect as though the void or unenforceable part had been severed and
deleted.
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This Agreement may not be changed orally, but only by an agreement in
writing signed by the Purchaser and the undersigned.
Yours very truly,
/s/Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx
c/o Razorfish, Inc.
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Fax No. (000) 000-0000
AGREED TO AND ACCEPTED:
JWL ASSOCIATES CORP.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Secretary
Razorfish, Inc.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chairman
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