NONCOMPETITION AGREEMENT
Exhibit 10.4
NONCOMPETITION AGREEMENT
This Non-Competition Agreement (the “Agreement”) is made as of January 31, 2007, by and
between Haights Cross Communications, Inc. (the “Company”) and Xxxx X. Xxxxxx (“Xxxxxx”).
WHEREAS, Xxxxxx serves as Executive Vice President and Chief Financial Officer of the Company,
pursuant to the terms of an Employment Agreement dated as of January 1, 2007 (the “Employment
Agreement”), and also is a shareholder of the Company and serves as a director of the Company and
certain of its subsidiaries;
WHEREAS, as a result of his positions, Xxxxxx has and will in the future obtain extensive and
valuable knowledge of confidential information regarding the business of the Company and its
subsidiaries related to the operation of the Company, Buckle Down Publishing/Triumph Learning,
Sundance Publishing/Newbridge Educational Publishing, Oakstone Publishing, Options Publishing,
Recorded Books, and such other subsidiaries and affiliates as the Company may acquire in the future
(the “Business”);
WHEREAS, Xxxxxx’x services to the Company are unique and extraordinary;
WHEREAS, Section 6(b) of the Employment Agreement contemplates the Company and Xxxxxx entering
into this Agreement.
NOW THEREFORE, the Company and Xxxxxx, for good and valuable consideration, receipt of which
is hereby acknowledged, agree as follows:
1. Restricted Territory. In addition to other terms defined herein, the following
term when used herein shall have the following meaning:
“Restricted Territory” means the 00 xxxxxx xx xxx Xxxxxx Xxxxxx of America.
2. Noncompetition and Nonsolicitation. During his employment with the Company and for
twelve (12) months thereafter, Xxxxxx (i) will not, directly or indirectly, whether as owner,
partner, shareholder, consultant, agent, employee, co-venturer or otherwise, engage, participate,
assist or invest in any Competing Business (as hereinafter defined); (ii) will refrain from
directly or indirectly employing, attempting to employ, recruiting or otherwise soliciting,
inducing or influencing any person to leave employment with the Company (other than terminations of
employment of subordinate employees undertaken in the course of Xxxxxx’x employment with the
Company); and (iii) will refrain from soliciting or encouraging any customer or supplier to
terminate or otherwise modify adversely its business relationship with the Company. Xxxxxx
understands that the restrictions set forth in this Section 2 are appropriate given that Xxxxxx’x
services are unique and extraordinary, and Crecca further understands that such restrictions are
intended to protect the Company’s interest in its
confidential information and established employee, customer and supplier relationships and
goodwill, and agrees that such restrictions are reasonable and appropriate for this purpose. For
purposes of this Agreement, the term “Competing Business” shall mean a business conducted in all or
any portion of the Restricted Territory which is competitive with any business which the Company or
any of its direct or indirect subsidiaries conducts as of and subsequent to the date of this
Agreement. Notwithstanding the foregoing, Xxxxxx may own up to one percent (1%) of the outstanding
stock of a publicly held corporation which constitutes or is affiliated with a Competing Business.
3. Non-Compete Payment. In consideration for Xxxxxx’x agreement to abide by the
restrictions contained in Section 2, if Xxxxxx’x employment is terminated without Cause (as defined
in Section 5(b) of the Employment Agreement or by Xxxxxx for Good Reason (as defined in Section
3(b) of the Employment Agreement), and if Xxxxxx executes the Separation and Release Agreement
referenced in Section 10 of the Employment Agreement and the Separation and Release Agreement
becomes irrevocable, the Company hereby agrees to pay to Xxxxxx, during the twelve (12) month
period following such termination, the gross amount of $300,000 in monthly installments of $25,000,
subject to applicable tax withholdings, payable on or before the fifteenth day of each month.
4. Specific Performance. Xxxxxx acknowledges that, in view of the nature of the
Business, the restrictions contained in Section 2 hereof are reasonably necessary to protect the
legitimate business interests of the Company and that any violation of such restrictions may result
in irreparable injury to the Company and the Business for which damages may not be an adequate
remedy. Xxxxxx therefore acknowledges that, if a court of competent jurisdiction shall find that
any such restrictions are violated, the Company shall be entitled to preliminary and injunctive
relief (without the requirement of posting a bond) as well as to an equitable accounting of
earnings, profits and other benefits arising from such violation.
5. Non-Exclusivity. The rights and remedies of the Company hereunder are not
exclusive of, or limited by, or in limitation of, any other rights or remedies which it may have,
whether at law, in equity, by contract or otherwise, all of which shall be cumulative.
6. Successors and Assigns.
(a) This Agreement shall be binding upon and shall inure to the benefit of the Company and its
successors and assigns, and the term the “Company” as used herein shall include its successors and
assigns. The term “successors and assigns” as used herein shall include but not be limited to a
corporation or other entity acquiring all or substantially all of the stock, assets, or business of
the Company whether by operation of law or otherwise.
(b) Neither this Agreement nor any right or interest hereunder shall be assignable or
transferable by Crecca, his heirs, beneficiaries or legal representatives except by will or by the
laws of descent and distribution. This Agreement shall be binding upon and inure to the benefit of
Crecca, his heirs, beneficiaries and legal representatives.
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7. Miscellaneous. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing and signed by
Xxxxxx and the Company. No waiver by either party hereto at any time of any breach by the other
party hereto of, or compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreement or representation, oral or otherwise,
express or implied, with respect to the subject matter hereof has been made by either party which
is not expressly set forth in this Agreement. No failure or delay of the Company in enforcing any
of its rights hereunder at any time shall constitute or evidence any waiver of such rights.
8. Governing Law. This Agreement shall be governed by and in accordance with the law
of the State of New York, without giving effect to the principles governing conflicts of law.
9. Severability. Should any provision of this Agreement or part thereof be held under
any circumstances in any jurisdiction to be invalid or unenforceable for any reason, including,
without limitation, because of its geographic or business scope or duration, such provision shall
be construed in such a way as to make it valid and enforceable to the maximum extent possible. Any
invalidity or unenforceability of any provision in this Agreement shall not affect the validity or
enforceability of any other provision or other part of such provision of this Agreement or any
other agreement or instruments.
10. Entire Agreement. This Agreement shall constitute the entire agreement between
the parties hereto with respect to the subject matter hereof and supersedes all prior agreements,
understandings and arrangements, oral or written, between the parties hereto on the subject matter
hereof.
11. Counterparts. This Agreement may be executed and delivered in counterparts,
including by facsimile, each of which shall be deemed an original. It shall not be necessary for
each party to sign each counterpart so long as each party has signed at least one counterpart.
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IN WITNESS WHEREOF, the parties have signed this Agreement as of the date and year first above
written.
| HAIGHTS CROSS COMMUNICATIONS, INC. |
||||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxxx | |||
| Title: | Director | |||
| XXXX X. XXXXXX | ||||
| Xxxx X. Xxxxxx | ||||
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