Exhibit 10.1
NON-COMPETE AGREEMENT
THIS NON-COMPETE AGREEMENT (the "Agreement") is entered into on December 19,
2005 by and between Xxxxxxx X. Xxxxx (the "Employee") and 21st Century Holding
Company, a Florida corporation (the "Company").
WITNESSETH:
WHEREAS, the Employee is employed by the Company and the Employee and the
Company, intending to be legally bound hereby and in consideration of the
promises contained herein, do hereby agree as follows:
1. Non-Competition. During the Term and for a period of 1 year following the
termination (other than without Cause) of the Employee's employment by the
Company, Employee shall not, directly or indirectly engage in or have any
interest in, directly or indirectly, any sole proprietorship, partnership,
corporation, business or any other person or entity (whether as an employee,
officer, director, partner, agent, security holder, creditor, consultant or
otherwise) that, directly or indirectly, engages primarily in the development,
marketing, distribution, underwriting or sale of products and services
competitive with the Company's and/or any subsidiary's products and services in
any and all states in which the Company and/or any subsidiary conducts its
business during the Term or at the time Executive's employment with the Company
is terminated (the "Territory"); provided, however, that Employee may hold
Company securities and/or acquire, solely as an investment, shares of capital
stock or other equity securities of any such company, so long as Employee does
not control acquire a controlling interest in or become a member of a group
which exercises direct or indirect control of, more than five percent of any
class of capital stock of such corporation.
2. Nondisclosure. During the Term and following termination of the Employee's
employment with the Company, Employee shall not divulge, communicate, use to the
detriment of the Company or for the benefit of any other person or persons, or
misuse in any way, any Confidential Information (as hereinafter defined)
pertaining to the business of the Company. Any Confidential Information or data
now or hereafter acquired by the Executive with respect to the business of the
Company (which shall include, but not be limited to, information concerning the
Company's financial condition, prospects, technology, customers, methods of
doing business and marketing, distribution, underwriting or sale of the
Company's products and services) shall be deemed a valuable, special and unique
asset of the Company that is received by the Employee in confidence and as a
fiduciary. For purposes of this Agreement "Confidential Information" means
information disclosed to the Employee or known by the Employee as a consequence
of or through his employment by the Company (including information conceived,
originated, discovered or developed by the Employee) prior to or after the date
hereof and not generally known or in the public domain, about the Company or its
business. Notwithstanding the foregoing, nothing herein shall be deemed to
restrict the Employee from disclosing Confidential Information to the extent
required by law.
3. Nonsolicitation of Employees. During the Term and for a period of 1 year
following termination of the Employee's employment with the Company, Employee
shall not directly or indirectly, for himself or for any other person, firm,
corporation, partnership, association or other entity, attempt to employ or
enter into any contractual arrangement with any employee or former employee of
the Company, unless such employee or former employee has not been employed by
the Company for a period in excess of six months.
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4. Books and Records. All books, records, accounts and similar repositories of
Confidential Information of the Company, whether prepared by the Employee or
otherwise coming into the Executive's possession, shall be the exclusive
property of the Company and shall be returned immediately to the Company on
termination of this Agreement or on the Board's request at any time.
5. Injunction. It is recognized and hereby acknowledged by the parties hereto
that a breach by the Employee of any of the covenants contained in this
Agreement will cause irreparable harm and damage to the Company, the monetary
amount of which may be virtually impossible to ascertain. As a result, the
Employee recognizes and hereby acknowledges that the Company shall be entitled
to an injunction from any court of competent jurisdiction enjoining and
restraining any violation of any or all of the covenants contained in this
Agreement by the Employee or any of his affiliates, associates, partners or
agents, either directly or indirectly, and that such right to injunction shall
be cumulative and in addition to whatever other remedies the Company may
possess.
6. Binding Effect. Except as herein otherwise provided, this Agreement shall
inure to the benefit of and shall be binding upon the parties hereto, their
personal representatives, successors, heirs and assigns.
7. Terminology. All personal pronouns used in this Agreement, whether used in
the masculine, feminine or neuter gender, shall include all other genders; the
singular shall include the plural and vice versa. Titles of Paragraphs are for
convenience only, and neither limit nor amplify the provisions of the Agreement
itself.
8. Entire Agreement. This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof. It supersedes all
prior negotiations, letters and understandings relating to the subject matter
hereof.
9. Amendment. This Agreement may not be amended, supplemented or modified in
whole or in part except by an instrument in writing signed by the party or
parties against whom enforcement of any such amendment, supplement or
modification is sought.
10. Choice of Law. This Agreement will be interpreted, construed and enforced in
accordance with the laws of the State of Florida, without giving effect to the
application of the principles pertaining to conflicts of laws.
t 0 0 11. Effect of Waiver. The failure of any party at any time or times to
require performance of any provision of this Agreement will in no manner affect
the right to enforce the same. The waiver by any party of any breach of any
provision of this Agreement will not be construed to be a waiver by any such
party of any succeeding breach of that provision or a waiver by such party of
any breach of any other provision.
12. Severability. The invalidity, illegality or unenforceability of any
provision or provisions of this Agreement will not affect any other provision of
this Agreement, which will remain in full force and effect, nor will the
invalidity, illegality or unenforceability of a portion of any provision of this
Agreement affect the balance of such provision. In the event that any one or
more of the provisions contained in this Agreement or any portion thereof shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be reformed, construed and enforced as if such invalid,
illegal or unenforceable provision had never been contained herein.
13. Enforcement. Should it become necessary for any party to institute legal
action to enforce the terms and conditions of this Agreement, the successful
party will be awarded reasonable attorneys' fees at all trial and appellate
levels, expenses and costs. Any suit, action or proceeding with respect to this
Agreement shall be brought in the courts of Broward County in the State of
Florida or in the U.S. District Court for the Southern District of Florida. The
parties hereto hereby accept the exclusive jurisdiction of those courts for the
purpose of any such suit, action or proceeding.
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Venue for any such action, in addition to any other venue permitted by statute,
will be Broward County, Florida. The parties hereto hereby irrevocably waive, to
the fullest extent permitted by law, any objection that any of them may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or any judgment entered by any court in
respect thereof brought in Broward County, Florida, and hereby further
irrevocably waive any claim that any suit, action or proceeding brought in
Broward County, Florida, has been brought in an inconvenient forum.
The parties hereto acknowledge and agree that any party's remedy at law for a
breach or threatened breach of any of the provisions of this Agreement would be
inadequate and such breach or threatened breach shall be per se deemed as
causing irreparable harm to such party. Therefore, in the event of such breach
or threatened breach, the parties hereto agree that, in addition to any
available remedy at law, including but not limited to monetary damages, an
aggrieved party, without posting any bond, shall be entitled to obtain, and the
offending party agrees not to oppose the aggrieved party's request for,
equitable relief in the form of specific enforcement, temporary restraining
order, temporary or permanent injunction, or any other equitable remedy that may
then be available to the aggrieved party.
14. Binding Nature. This Agreement will be binding upon and will inure to the
benefit of any successor or successors of the parties hereto.
15. Counterparts. This Agreement may be executed in one or more counterparts,
each of which will be deemed an original.
16. Notice. Any notice required or permitted to be delivered hereunder shall be
deemed to be delivered when sent by facsimile with receipt confirmed or when
deposited in the United States mail, postage prepaid, registered or certified
mail, return receipt requested, or by overnight courier, addressed to the
parties at the addresses first stated herein, or to such other address as either
party hereto shall from time to time designate to the other party by notice in
writing as provided herein.
IN WITNESS WHEREOF, this Agreement has been duly signed by the parties hereto on
the day and year first above written.
21ST CENTURY HOLDING COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: President & CEO
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/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, EMPLOYEE
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