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EXHIBIT 10.8
NON-COMPETITION AGREEMENT
This Non-Competition Agreement (the "AGREEMENT") is made as of the 8th
day of April, 1997 by and between XXX.XXX, Inc., a Delaware corporation (the
"COMPANY") and Xxxx X. Street ("EMPLOYEE"). This is the Non-Competition
Agreement contemplated by that certain Series B Preferred Stock Purchase
Agreement, dated as of the date hereof by and between the Company and American
Express Travel Related Services, Inc. ("TRS") (the "PURCHASE AGREEMENT").
WHEREAS, the Company and TRS have entered into the Purchase Agreement
providing for the acquisition by TRS of the Shares (as defined in the Purchase
Agreement);
WHEREAS, Employee is a key management employee and stockholder of the
Company;
WHEREAS, in order to protect the value of the Shares (as defined in the
Purchase Agreement) being acquired by TRS, TRS requires that Employee agree to
certain restrictions on Employee's ability to compete with the Company in the
future;
WHEREAS, it is expected that Employee will personally benefit from the
investment of TRS in the Company;
WHEREAS, the Company, Employee and TRS desire that the transactions
contemplated by the Purchase Agreement be consummated; and
WHEREAS, pursuant to the terms and conditions of Sections 5.2 and 5.3
of the Purchase Agreement, Employee shall execute and deliver this Agreement to
the Company prior to the Closing (as defined in the Purchase Agreement).
NOW, THEREFORE, as inducement to TRS to proceed with the Closing and in
consideration of such Closing and of the mutual covenants and agreements
contained herein and in the Purchase Agreement and for other good and valuable
consideration hereby acknowledged, intending to be legally bound, the parties
hereto do hereby agree as follows:
1. NON-COMPETITION. Employee agrees that he shall not, directly or
indirectly, from the date commencing three (3) years after the date on which
Employee's employment is terminated by Employee or the Company, whether as an
owner, consultant, partner, joint venturer, stockholder, broker, agent,
principal, trustee, licensor or in any capacity whatsoever (the "RESTRICTION
PERIOD"): (a) own, manage, operate, join, control, finance or participate in the
ownership, management, operation, control or financing of, or be connected as an
officer, director, employee, partner, principal, agent, representative,
consultant, licensor, licensee or otherwise with, any business or enterprise
which is competitive with the Company in the business of providing Internet
E-mail services (the "BUSINESS"), or (b) engage in any other manner, in any
business which is competitive with the Company in the Business as conducted by
the Company at the time Employee's employment relationship with the Company is
terminated; provided, however, that the acquisition or ownership of less than 5%
of the outstanding shares of any corporation engaged in the Business will not
constitute a violation of
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this Agreement. Employee agrees that during the Restricted Period, Employee
shall not employ, or directly or indirectly solicit for employment or advise or
recommend to any other person that he or she employ or solicit for employment,
any person employed at that time by the Company, its parent, subsidiaries or
affiliates.
2. JUDICIAL LIMITATION. In the event that any provision of this Agreement
is more restrictive than permitted by the law of the jurisdiction in which the
Company seeks enforcement thereof, the provisions of this Agreement shall be
limited only to that extent that a judicial determination finds the same to be
unreasonable or otherwise unenforceable. Such invalidity or unenforceability
shall not affect any other terms herein but such term shall be deemed deleted,
and such deletion shall not affect the validity of the other terms hereof. In
addition, if any one or more of the terms contained in this Agreement shall for
any reason be held to be excessively broad or of an overly long duration that
term shall be construed in a manner to enable it to be enforced to the extent
compatible with applicable law. Moreover, notwithstanding any judicial
determination that any provision of this Agreement is not specifically
enforceable, the parties intend that the Company shall nonetheless be entitled
to recover monetary damages as a result of any breach hereof.
3. INJUNCTIVE RELIEF. In view of the nature of the rights in goodwill,
business reputation and prospects of the Company and the value of the Shares to
be protected under this Agreement, Employee understands and agrees that the
Company could not be reasonably or adequately compensated in damages in an
action at law for Employee's breach of its obligations hereunder. Accordingly,
Employee specifically agrees that the Company 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 to claim and recover damages in addition to injunctive
relief.
4. WAIVER. The failure of the Company to enforce at any time any of the
provisions of this Agreement or to require at any time performance by Employee
of the provisions hereof shall in no way be construed to be a waiver of such
provisions or to affect either the validity of this Agreement, or any part
hereof, or the right of the Company thereafter to enforce each and every
provision in accordance with the terms of this Agreement.
5. SEVERABILITY. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
6. ASSIGNABILITY. This Agreement shall be freely assignable by the Company
and shall inure to the benefit of its successors and assigns.
7. TERMINATION IN THE EVENT OF A CHANGE OF CONTROL. This Agreement shall
terminate in the event of (a) any consolidation or merger of the Company with or
into any other corporation or other entity or person, or any other corporate
reorganization,
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in which the stockholders of the Company immediately prior to such
consolidation, merger or reorganization, own less than 50% of the Company's
voting power immediately after such consolidation, merger or reorganization, or
any transaction or series of related transactions in which in excess of fifty
percent (50%) of the Company's voting power is transferred (an "Acquisition");
or (b) a sale, lease or other disposition of all or substantially all of the
assets of the Company (an "Asset Transfer"); provided, however, that TRS is not
the acquiring party in such Acquisition or Asset Transfer.
8. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Colorado without regard to its conflicts-of-laws rules.
9. AMENDMENTS. This Agreement may not be amended, altered or modified
other than by a written agreement between the parties hereto.
10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
XXX.XXX, Inc. EMPLOYEE:
By: /s/ XXXX X. STREET /s/ XXXX X. STREET
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Xxxx X. Street
Title: President, CEO
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