NON-COMPETITION AND NON-SOLICITATION AGREEMENT
EXHIBIT
10.21
NONCOMPETITION AND NONSOLICITATION
AGREEMENT (this “Agreement”), dated as
of May 13, 2010, is entered into by and among SSGI, Inc., a Florida corporation
(“Buyer”), B
& M Construction Co., Inc., a Florida corporation (the “Company”), and Xxxxx
X. Xxxxx, Xx., an individual resident of the State of Florida (“Covenantor”).
PRELIMINARY
STATEMENTS
A. Buyer,
Covenantor and the Company have entered into that certain Stock Purchase
Agreement, dated May 13, 2010 (the “Purchase Agreement”),
that provides for the purchase by Buyer of all of the shares of capital stock of
the Company owned by Covenantor;
B. Buyer
is unwilling to proceed with the purchase of such shares unless Covenantor
agrees to refrain from engaging in any activities that are in competition with
the businesses of the Company and Buyer, and has conditioned its commitment to
proceed with the purchase of such shares upon the receipt of this Agreement from
Covenantor; and
C. Capitalized
terms used in this Agreement but not otherwise defined herein shall have the
meanings ascribed to such terms in the Purchase Agreement.
NOW, THEREFORE, in consideration of the
premises, the agreement of Buyer to consummate the purchase of the shares
contemplated by the Purchase Agreement, the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Buyer, the Company and Covenantor
agree as follows:
SECTION 1. Noncompetition and
Nonsolicitation Covenants.
1.1 Agreement not to
Compete. Covenantor covenants and agrees that, during the
period beginning on the date of this Agreement and ending on the fifth (5th)
anniversary of the date hereof (the “Covenant Period”), he
shall not (and shall not permit any of his Affiliates to), directly or
indirectly engage in competition with the Company or Buyer in any manner or
capacity (including, without limitation, as an advisor, consultant, principal,
agent, partner, officer, director, stockholder, employee, member of any
association or otherwise) in any aspect of any business being conducted by the
Company or Buyer immediately prior to the date hereof.
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1.2 Agreement not to
Solicit. Covenantor covenants and agrees that, during the
Covenant Period, he shall not (and shall not permit any of his Affiliates to),
directly or indirectly (a) call upon or communicate with any Person who was a
customer of the Company or Buyer immediately prior to the date hereof for the
purpose of soliciting or obtaining for his own account or for any third party
any business, customer, order or contract for the sale to such Person of any
products or services offered or dealt in by the Company or Buyer immediately
prior to the date hereof or for the purpose of diverting from the Company or
Buyer, or any successor thereof, any such business, customer, order or contract
with such Person; (b) in any manner misuse or divulge to any Person any list of
customers, clientele, proprietary information or trade secrets of the Company or
Buyer, or any successor thereof; or (c) solicit or attempt to induce any Person
employed by the Company or Buyer, or any successor thereof, to leave his or her
employment with the Company or Buyer, or any successor thereof.
1.3 Geographic Extent and Scope
of Covenants. The obligations of Covenantor under this Section 1 shall
apply in any territory in which the Company or Buyer is doing business at any
time during the Covenant Period, including, without limitation, the State of
Florida. Covenantor acknowledges and agrees that the length and scope
of the restrictions contained in this Section 1 are reasonable and necessary to
protect Buyer’s rights and interests under the Purchase
Agreement. The duration of the covenants contained in this Section 1
shall be extended for the amount of any time of any violation thereof and the
time, if greater, necessary to enforce such provisions or obtain any relief or
damages for such violation through the court system.
1.4 Limitation on
Covenants. Ownership by Covenantor, as a passive investment, of less than
1% of the outstanding shares of capital stock of any corporation listed on a
national securities exchange or publicly traded on any nationally recognized
over-the-counter market shall not constitute a breach of Section 1.1
hereof.
1.5 Indirect
Competition. Covenantor further agrees that, during the
Covenant Period, he shall not, directly or indirectly, assist or encourage any
other Person in carrying out, directly or indirectly, any activity that would be
prohibited by the above provisions of this Section 1 if such activity were
carried out by Covenantor, either directly or indirectly. In
particular, Covenantor agrees that he shall not, directly or indirectly, induce
any employee of the Company or Buyer, or their respective Affiliates, to carry
out, directly or indirectly, any such activity.
SECTION 2. Definitions. For
purposes of this Agreement, the following terms shall have the definitions
described below:
2.1 Affiliate of any
specified Person shall mean any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified
Person. For the purposes of this definition, “control”, “controlling”
or “controlled” when used with respect to any Person means the power to direct
the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or
otherwise.
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2.2 Person shall mean any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
SECTION 3. Miscellaneous.
3.1 Governing Law; Exclusive Jurisdiction and
Venue. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE
LAWS OF THE STATE OF FLORIDA AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED WITHIN SAID STATE. Each of the Company, Buyer and Covenantor (a)
hereby irrevocably submits to the exclusive jurisdiction of the United States
District Court for the Southern District of Florida and the courts of the State
of Florida located in Palm Beach County, Florida, for the purposes of any suit,
action or proceeding arising out of or relating to this Agreement, and (b)
hereby waives, and agrees not to assert in any such suit, action or proceeding,
any claim that he or it is not personally subject to the jurisdiction of any
such court, that the suit, action or proceeding is brought in an inconvenient
forum or that the venue of the suit, action or proceeding is
improper.
3.2 Prior
Agreements. This Agreement contains the entire agreement of
the parties relating to the subject matter hereof and supersedes all prior
agreements and understandings with respect to such subject matter and the
parties hereto have made no agreements, representations or warranties relating
to the subject matter of this Agreement which are not set forth
herein.
3.3 Amendments. No
amendment or modification of this Agreement shall be deemed effective unless
made in writing signed by all parties hereto.
3.4 Assignment. This
Agreement shall not be assignable, in whole or in part, by either party without
the prior written consent of the other party, except that the Company or Buyer
may, without the consent of Covenantor, assign its rights and obligations under
this Agreement to any other Person with or into which the Company or Buyer may
merge, consolidate or engage in a share exchange, or to which the Company or
Buyer may sell or transfer all or substantially all of its assets, or which may
otherwise be an Affiliate of the Company or Buyer; provided, however, that any
such assignee Person must agree in writing to be bound by the terms of this
Agreement.
3.5 No
Waiver. No term or condition of this Agreement shall be deemed
to have been waived, nor shall there be any estoppel to enforce any provisions
of this Agreement, except by a statement in writing signed by the party against
whom enforcement of the waiver or estoppel is sought. Any written
waiver shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
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3.6 Severability. To
the extent any provision of this Agreement shall be deemed illegal, invalid or
unenforceable, such provision shall be considered deleted herefrom and the
remainder of such provision and of this Agreement shall be unaffected and shall
continue in full force and effect. In lieu of such illegal, invalid
or unenforceable provision, there shall be added automatically as a part of this
Agreement a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable,
and Buyer, the Company and Covenantor hereby request the court or any arbitrator
to whom disputes relating to this Agreement are submitted to reform the
otherwise illegal, invalid or unenforceable provision in accordance with the
preceding provision. In furtherance of and not in limitation of the
foregoing, it is expressly agreed that should the duration or geographical
extent of, or business activities covered by, Section 1 of this Agreement be in
excess of that which is valid or enforceable under applicable law, such
provision shall be construed to cover only that duration, extent or activities
which may validly or enforceably be covered. Covenantor acknowledges
the uncertainty of the law in this respect and expressly stipulates that this
Agreement shall be construed in a manner which renders its provisions valid and
enforceable to the maximum extent (not exceeding its express terms) possible
under applicable law.
3.7 Injunctive
Relief. Covenantor agrees that it would be difficult to
compensate the Company or Buyer fully for damages for any violation of the
provisions of this Agreement. Accordingly, Covenantor specifically
agrees that each of the Company and Buyer shall be entitled to temporary and
permanent injunctive relief to enforce the provisions of this Agreement and that
such relief may be granted without the necessity of proving actual
damages. This provision with respect to injunctive relief shall not,
however, diminish the right of the Company or Buyer to claim and recover damages
in addition to injunctive relief.
3.8 Counterparts. This
Agreement may be executed in separate counterparts, each of which shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
[Remainder
of page intentionally left blank; signature page to follow.]
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IN
WITNESS WHEREOF, the Company, Buyer and Covenantor have executed this Agreement
as of the date first above written.
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Buyer:
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By:
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/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx
X. Xxxxxxxxx, Chief
Executive Officer
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Company:
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B
& M CONSTRUCTION CO., INC.
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By:
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/s/ Xxxx X. Xxxxx
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Xxxx
X. Xxxxx, Chief
Financial Officer
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Covenantor:
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/s/ Xxxxx X. Xxxxx, Xx.
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Xxxxx
X. Xxxxx, Xx.
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