EX-2.3
NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
NON -COMPETITION AND NON-DISCLOSURE AGREEMENT
AGREEMENT (this "Agreement"), dated as of May 4, 2004, by and
between FREESTAR TECHNOLOGY CORPORATION, a Nevada corporation having
offices at Calle Fantino Falco, X.X. Xxxx Xxxxxxxx, 0xx Xxxxx, Xxxxx
Xxxxxxx, Xxxxxxxxx Xxxxxxxx (the "Buyer"), and UNICOMP, INC., a
Colorado corporation having offices at 0000 Xxxxxx Xxxx Xxxx, Xxxxx
000, Xxxxxxxxx, Xxxxxxx 00000 (the "Stockholder");
WITNESSETH:
WHEREAS, on the date hereof, pursuant to that certain Asset
Purchase Agreement of even date herewith (the "Purchase Agreement"),
by and among the Buyer, UniPay, Inc. (the "Seller") and the
Stockholder, the Buyer is acquiring all of the assets and properties
of the Seller used to provide or act as an electronic gateway between
sellers of goods and services and processors of payments for such
goods and services made via credit cards and debit cards, presently
located at Seller's facility in Murphy, North Carolina (the
"Business"), as a going concern;
WHEREAS, the Stockholder has heretofore been the sole
stockholder of the Seller, and as such, will derive substantial
benefit from the transactions contemplated by the Purchase Agreement;
WHEREAS, by reason of its ownership and management of the
Seller, the Stockholder has detailed knowledge and possesses
confidential information concerning the Business;
WHEREAS, in order to induce the Buyer to consummate the
transactions contemplated by the Purchase Agreement, the Stockholder
has agreed, and the Buyer has required the Stockholder, to enter into
this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Purchase
Agreement, the parties hereby agree as follows:
10. Restrictive Covenants.
(a) The Stockholder hereby acknowledges and agrees that:
(i) the business contacts, customers, suppliers, technology, know-
how, trade secrets, marketing techniques, operating methods and other
aspects of the Business have been of value to the Seller, and have
provided the Seller (and will hereafter provide the Buyer) with
substantial competitive advantage in the operation of the Business,
and (ii) by virtue of its ownership and management of the Seller as
its sole stockholder, the Stockholder has detailed knowledge of and
possesses confidential information concerning the Business.
(b) The Stockholder hereby agrees, for the benefit of the
Buyer and its subsidiaries, that it shall not, directly or
indirectly, for itself or through or on behalf of any of its
subsidiaries or affiliates, or any other person or entity, in each
case relating only to the Business:
(i) at any time from and after the date hereof,
except to the extent required by law or in connection with any legal
proceeding of which the Stockholder has theretofore given written
notice to the Buyer, divulge, transmit or otherwise disclose or cause
to be divulged, transmitted or otherwise disclosed, any business
contacts, client or customer lists, technology, know-how, trade
secrets, marketing techniques, contracts or other confidential or
proprietary information of the Seller or the Buyer of whatever
nature, whether existing on or prior to the date hereof or arising
from and after the date hereof (provided, however, that for purposes
hereof, information shall not be considered to be confidential or
proprietary if (A) it is a matter of common knowledge or public
record, (B) it is generally known in the industry, or (C) the
Stockholder can demonstrate that such information was already known
to the recipient thereof other than by reason of any breach of any
obligation under this Agreement or any other confidentiality or non-
disclosure agreement known to the Stockholder); and/or
(ii) at any time from the date hereof through and
including the second (2nd) anniversary of the date hereof (the
"Restrictive Period"), solicit, seek to hire, employ or retain
(directly or indirectly, whether as an employee, consultant or
otherwise) any person employed or retained by the Buyer at such time
or within one (1) year prior to such solicitation, hiring, employment
or retention, or otherwise materially and adversely interfere with
the relationship between the Buyer and any such person, without the
prior written consent of the Buyer in each instance; and/or
(iii) at any time during the Restrictive Period,
solicit, canvass or approach or endeavor to solicit, canvass or
approach any person or entity which the Stockholder knows (or should
have known) was provided with products or services of the Business by
the Seller or the Stockholder at any time, for the purpose of
offering services or products which compete with or are functionally
similar to the services or products of the Business supplied by the
Seller or the Stockholder.
2. Remedies. The Stockholder and the Buyer hereby acknowledge
and agree that any breach by the Stockholder, directly or indirectly,
of the foregoing restrictive covenants will cause the Buyer and/or
its affiliates irreparable injury for which there is no adequate
remedy at law. Accordingly, the Stockholder expressly agrees that,
in the event of any such breach or any threatened breach hereunder by
the Stockholder, directly or indirectly, the Buyer and its
subsidiaries shall be entitled, in addition to any and all other
remedies available, to seek and obtain injunctive and/or other
equitable relief to require specific performance of or prevent,
restrain and/or enjoin a breach under the provisions of this Agreement.
3. Expenses. In the event of any dispute under or arising out
of this Agreement, the prevailing party in such dispute shall be
entitled to recover from the non-prevailing party or parties, in
addition to any damages and/or other relief that may be awarded, its
reasonable costs and expenses (including reasonable attorneys' fees)
incurred in connection with prosecuting or defending the subject dispute.
4. Benefits and Obligations. This Agreement shall be binding
upon and inure to the benefit of and shall be enforceable by the
Buyer and its subsidiaries, successors and assigns, and the
Stockholder and its subsidiaries, successors and assigns; provided,
however, that the obligations of the Stockholder contained herein may
not be delegated or assigned.
5. Governing Law; Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of
New York. The parties agree to the exclusive jurisdiction and venue
of Florida and Georgia state and federal courts with respect to any
action between the parties relating to this Agreement.
6. Severability. It is acknowledged, understood and agreed
that the restrictions contained in this Agreement (a) are made for
good, valuable and adequate consideration received and to be received
by the Stockholder, and (b) are reasonable and necessary, in terms of
the time, geographic scope and nature of the restrictions, for the
protection of the Buyer and the good will thereof. It is intended
that said provisions be fully severable, and in the event that any of
the foregoing restrictions, or any portion of the foregoing
restrictions, shall be deemed contrary to law, invalid or
unenforceable in any respect by any court or other tribunal of
competent jurisdiction, then such restrictions shall be deemed to be
amended, modified and reduced in scope and effect, only to that
extent necessary to render same valid and enforceable, and any other
of the foregoing restrictions shall be unaffected and shall remain in
full force and effect.
7. Waiver, Amendment or Modification. Neither this Agreement
nor any of the terms and conditions hereof may be waived, amended or
modified except by means of a written instrument duly executed by the
party to be charged therewith. No waiver of any provision,
performance or default hereunder in any instance shall be construed
as a continuing waiver of such provision, performance or default, or
a waiver of any other provision, performance or default, or of any
future performance or default.
8. Notices. Any notice, request, demand or other
communication required or permitted under this Agreement shall be in
writing and shall be deemed to have been given when delivered
personally, one (1) day after being sent by recognized overnight
courier service, or three (3) business days after being mailed by
certified mail, return receipt requested, addressed to a party at the
address of such party first set forth above, or at such other address
as such party may hereafter have designated by notice.
9. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all
of which shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first set forth above.
FREESTAR TECHNOLOGY CORPORATION
By: /s/ Xxxx Xxxx
Xxxx Xxxx
President & Chief Executive Officer
UNICOMP, INC.
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Chief Executive Officer
