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Exhibit 10.3
NON-COMPETITION AGREEMENT
Pursuant to an Asset Purchase Agreement executed on even date herewith
(the "Asset Purchase Agreement"), Xxxxxxxxx, Inc. ("Xxxxxxxxx"), a Maryland
corporation, agreed to purchase substantially all of the assets of Corporate
Accommodations, Inc. ("Corporate Accommodations"), a Florida corporation, solely
owned by Xxxxx Xxxxxx ("Xxxxxx"). As a material inducement to Xxxxxxxxx to enter
into the Asset Purchase Agreement, Xxxxxx agreed to enter into this
Non-Competition Agreement pursuant to which certain restrictions are to be
placed on Xxxxxx'x ability to compete with the Business of Xxxxxxxxx (as defined
in Section 6 below). This covenant not to compete is given in partial
consideration of Xxxxxxxxx'x purchase of Corporate Accommodations' assets
pursuant to the Asset Purchase Agreement and is independent of any covenant
entered into by Xxxxxx under any employment agreement with Xxxxxxxxx.
NOW, THEREFORE, in consideration of the mutual promises of the parties
each to the other made in the Asset Purchase Agreement and for other good and
valuable consideration acknowledged by each party to have been received from the
other, Xxxxxx and Xxxxxxxxx agree to certain restrictive covenants as follows:
1. NON-COMPETITION. Xxxxxx agrees that she shall not, at any time for a
period of five (5) years after the execution date of this Agreement (the
"Restricted Period"), anywhere in Arizona, California, Colorado, Delaware,
Florida, Georgia, Maryland, North Carolina, Pennsylvania, South Carolina,
Virginia, and Washington, D.C. (all of which areas are currently the locations
in which Xxxxxxxxx
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is actively conducting its Business) and, in addition, any other locations in
which Xxxxxxxxx conducts its business during the Restricted Period:
(a) be associated with or engaged in, directly or indirectly, in any
capacity whatsoever, whether as a employee, proprietor, director, stockholder,
investor, partner, consultant, independent contractor, agent, representative,
officer or otherwise, with any business of a similar nature that is competitive
with Xxxxxxxxx'x Business or with the business of Xxxxxxxxx'x affiliated
entities, Executive Furniture Center, Inc. and Executive Amenities, Inc. (the
"Affiliates"); or
(b) assist or attempt to assist with respect to the providing of
capital needs, borrowing needs or credit needs, in any capacity whatsoever,
whether as a lender, guarantor, accommodation party, financier, investor, or
otherwise, any person(s) or entity(ies) of any nature or description, who or
which shall be engaged in, or intend to be engaged in, a business which is
competitive with Xxxxxxxxx'x Business or with the business of the Affiliates of
Xxxxxxxxx.
2. NON-SOLICITATION. Xxxxxx agrees that she shall not, during the
Restricted Period (i) solicit, obtain, service, directly or indirectly, or
accept, whether or not solicited by Xxxxxx, any business relating to services
provided by Xxxxxxxxx or Affiliates of Xxxxxxxxx from any client, customer, or
account of Xxxxxxxxx or Affiliates; or (ii) assist any other person, firm,
association, partnership, corporation, or other business to solicit, obtain or
service any such business from any client, customer, or account of Xxxxxxxxx or
Affiliates of Xxxxxxxxx.
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3. NON-SOLICITATION OF EMPLOYEES. Xxxxxx agrees that she shall not,
during the Restrictive Period, directly or indirectly, alone or as an employee,
proprietor, director, stockholder, investor, partner, consultant, independent
contractor, agent, representative, officer or otherwise, induce, cause,
persuade, or attempt to do any act or thing which would cause or induce any
representative or employee of Xxxxxxxxx or Affiliates to terminate his/her
representation of or employment with Xxxxxxxxx or Affiliates or to violate the
terms of any agreement between said representative or employee and Xxxxxxxxx or
Affiliates.
4. CONFIDENTIAL INFORMATION. Xxxxxx recognizes that she may occupy a
position of trust with respect to Business information of a secret or
confidential nature which is the property of Xxxxxxxxx and which has been or
will be used by or imparted to Xxxxxx from time to time ("Confidential
Information"). As used herein, "Confidential Information" shall mean information
of any nature and in any form which at the time or times concerned is not
generally known to those persons engaged in businesses similar to that conducted
or contemplated by Xxxxxxxxx or Affiliates and which relates to any one or more
of the aspects of the present or past Business of Xxxxxxxxx or the Affiliates,
including, but not limited to, patents and patent applications, inventions and
improvements, whether patentable or not, business development projects,
products, product designs and materials for products, internal business
policies, processes, techniques, know-how, advertising plans, financial matters,
customer and customer lists, leases, and sub-leases. Xxxxxx further acknowledges
that such Confidential Information includes the information
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which Xxxxxxxxx purchased from Corporate Accommodations pursuant to the Asset
Purchase Agreement for which valuable consideration was paid by Xxxxxxxxx.
Xxxxxx agrees that she shall not, so long as such Confidential Information
remains secret or confidential, use or disclose, directly or indirectly, to any
person outside of Xxxxxxxxx any of such Confidential Information without the
prior written consent of Xxxxxxxxx.
5. REASONABLENESS OF RESTRICTION. Xxxxxx acknowledges that the
covenants and restrictions contained in this Agreement are reasonable as to the
time and geographic scope to which Xxxxxx'x activities are to be restricted.
Further, Xxxxxx understands said restrictions and agrees to be fully bound with
respect thereto. In addition, Xxxxxx represents that Corporate Accommodations
and she have and will be adequately compensated for providing such restrictive
covenants, that Xxxxxxxxx has paid additional consideration for such restrictive
covenants pursuant to the Asset Purchase. Agreement, and that such limitations
on Xxxxxx'x activities for the time and the areas designated shall not prevent
Xxxxxx from earning a reasonable livelihood or engaging in any other businesses
during the Restricted Period.
6. XXXXXXXXX'X BUSINESS. For purposes of this Agreement, the term
"Xxxxxxxxx'x Business" shall mean the business of providing temporary housing to
relocated employees, individuals and their families through leasing and
sub-leasing commercial rental properties and residential rental properties,
appropriately furnishing said properties and providing all amenities with
respect thereto,
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including utilities, household goods, health and entertainment facilities and
the like. Notwithstanding anything to the contrary in this Agreement, Xxxxxx
shall be entitled to continue to individually rent out those properties listed
in Schedule "A" attached hereto and to keep all rents, profits and income with
respect thereto; and such rental activities by Xxxxxx shall not be deemed a
breach of any of the restrictive covenants set forth in this Agreement.
7. REMEDIES FOR BREACH OF COVENANT. In the event of a breach or
threatened breach by Xxxxxx of any of the provisions of this Agreement, it is
agreed that Xxxxxxxxx shall be entitled to (a) injunctive relief, in whole or in
part and from time to time, as more fully described in Xxxxxxx 0, xxxxx, (x)
have the Restricted Period extended to allow Xxxxxxxxx an uninterrupted period
equal to the full Restricted Period without violation by Xxxxxx, and (c) seek
actual damages.
The parties hereto acknowledge and stipulate that it is impossible to
determine with any reasonable accuracy the amount of prospective damages to
Xxxxxxxxx upon breach of any covenant contained in this Agreement, and that the
remedies set forth herein are reasonable based upon the facts and circumstances
of the parties at the time of entering into this Agreement, and with due regard
to future expectations.
8. INJUNCTIVE RELIEF. Xxxxxx acknowledges that remedies at law for any
breach or threatened breach of the provisions of this instrument will be
inadequate and, accordingly, that Xxxxxxxxx shall, in addition to all other
available remedies (including, without limitation, seeking such monetary damages
as can be shown to
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have been sustained by reason of such breach), be entitled to injunctive or
other equitable relief without being required to post bond or other security of
any character, and without having to prove or otherwise establish the inadequacy
of available remedies at law for the breach or threatened breach hereof by
Xxxxxx. Xxxxxx further agrees that she shall not plead or otherwise defend any
claim of breach or threatened breach hereof on grounds of adequate remedy at law
in an action by Xxxxxxxxx against Xxxxxx for injunctive relief or for specific
performance of any of Xxxxxx'x obligations pursuant to this Agreement. Such
remedies and those remedies set forth in Section 7 shall be cumulative and
nonexclusive and shall be in addition to any other remedy to which Xxxxxxxxx be
entitled.
9. GOVERNING LAW; VENUE. This Agreement shall be construed under and in
accordance with the laws of the State of Florida. The parties hereto further
agree that any action brought to enforce any right or obligation under this
Agreement shall be subject to the exclusive jurisdiction of the courts of the
State of Florida.
10. ATTORNEY'S FEES. In the event either of the parties hereto shall
institute any action or proceeding against the other party relating to this
Agreement, the prevailing party in such action or proceeding shall be entitled
to reimbursement from the other party for its reasonable disbursements incurred
in connection therewith, including its reasonable attorney fees incurred in
connection therewith.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
this 1st day of April, 1997.
XXXXXXXXX, INC.
By: /s/ Xxxx Xxxxxxxx (seal)
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Xxxx Xxxxxxxx, President
/s/ Xxxxx Xxxxxx (seal)
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Xxxxx Xxxxxx
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