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EXHIBIT 10.2
December 9, 1998
Florafax International, Inc.
0000 00xx Xxxxxx
Xxxx Xxxxx, XX 00000
Gentlemen:
Reference is made to the Agreement and Plan of Merger, dated as of December
9, 1998 (the "Merger Agreement"), among FLORAFAX INTERNATIONAL, INC., a Delaware
corporation ("Red Xxxxxx"), RED XXXXXX ACQUISITION, INC., a Delaware corporation
and wholly-owned subsidiary of Red Xxxxxx ("Merger Sub"), XXXXXX XXXXXXX, INC.,
a Delaware corporation (the "Company"), pursuant to which Merger Sub is to be
merged with and into the Company (the "Merger"), with the Company continuing as
the surviving corporation and a wholly-owned subsidiary of Red Xxxxxx.
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in the Merger Agreement.
The undersigned agrees that during the undersigned's tenure as a director
of Red Xxxxxx, the Company or any of their subsidiaries (the "Red Xxxxxx
Companies") following the consummation of the Merger and for a period of three
(3) years after termination for any reason of the undersigned's tenure as a
director of any of the Red Xxxxxx Companies, the undersigned shall not, directly
or indirectly:
(1) alone or as a partner, joint venturer, officer, director,
employee, consultant, agent, independent contractor, or security holder, of
any Person, engage in any business activity in any State in which the Red
Xxxxxx Companies are doing business, which is directly or indirectly in
competition with the business engaged in by the Red Xxxxxx Companies in
such States (a "Competing Business"); provided, however, that the
beneficial ownership of less than five percent (5%) of any class of
securities of any entity having a class of equity securities actively
traded on a national securities exchange or the Nasdaq National or SmallCap
markets shall not be deemed, in and of itself, to violate the prohibitions
of this Section;
(2) (i) induce any customer of the Red Xxxxxx Companies to patronize
any business which is a Competing Business; (ii) solicit or accept for or
on behalf of any such Competing Business any customer of the Red Xxxxxx
Companies; or (iii) request or advise any customer of the Red Xxxxxx
Companies to withdraw, curtail or cancel any such customer's business with
the Red Xxxxxx Companies;
(3) employ any person who was employed by the Red Xxxxxx Companies
within six months prior to the date that the undersigned's tenure as a
director of Red Xxxxxx is terminated, or in any manner seek to induce any
employee of the Red Xxxxxx Companies to leave his or her employment;
(4) in any way utilize, disclose, copy, reproduce or retain in his
possession any of the proprietary rights, records or trade secrets of the
Red Xxxxxx Companies, including, but not limited to, any customer lists,
marketing plans, corporate development plans, and non-public financial and
other data; provided that the foregoing shall not restrict the retention by
the undersigned of non-public data received by the undersigned in his
capacity as a director of any of the Red Xxxxxx Companies.
The undersigned agrees and acknowledges that the restrictions contained in
this letter are reasonable in scope and duration, and are necessary to protect
Red Xxxxxx. If any provision of this letter is adjudged by a court of competent
jurisdiction to be invalid or unenforceable, the same will in no way affect the
validity or enforceability of the remainder of this Agreement. If any such
provision, or any part thereof, is held to be unenforceable because of the
duration of such provision, the area covered thereby or otherwise, then the
parties agree that the court making such determination shall have the power to
reduce the duration, area or scope of such provision, and/or to delete specific
words or phrases, and in its reduced or modified form, such provision shall then
be enforceable and shall be enforced. The undersigned further agrees and
acknowledges that any breach of this letter will cause irreparable injury to Red
Xxxxxx and upon any breach or threatened breach of any provision of this letter,
Red Xxxxxx shall be entitled to injunctive relief, specific performance or
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other equitable relief, without the necessity of posting bond; provided,
however, that this shall in no way limit any other remedies which Red Xxxxxx may
have as a result of such breach, including the right to seek monetary damages.
This Letter shall terminate if the Merger Agreement is terminated.
/s/ XXXXXX X. XXXXXXXX
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XXXXXX X. XXXXXXXX
ACCEPTED AND AGREED TO AS OF THE
DATE FIRST ABOVE WRITTEN:
FLORAFAX INTERNATIONAL, INC.
By: /s/ XXXXX X. XXXX
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Name: XXXXX X. XXXX
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Title: President
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