Covenant Not to Compete and Confidentiality Agreement
THIS COVENANT NOT TO COMPETE AND CONFIDENTIALITY AGREEMENT ("Agreement"),
dated June 7, 2005, by and between IPEX, Inc., a corporation organized and
existing under the laws of Nevada with offices at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx
000, Xxx Xxxxx, Xxxxxxxxxx 00000 (the "Company") and RGB Channel SRL, a
corporation organized and existing under the laws of Italy with offices at Xxx
Xxxxxxx 00, Xxxxxx 00000 Xxxxx , Xxxxxxx Xxxxxxxxx, B Tech, Ltd.., a corporation
organized and existing under the laws of the British Virgin Islands and Xxxxxxxx
Xxxx (collectively "Covenanter").
W I T N E S S E T H:
WHEREAS, the Company and Covenanter, among others, are parties to two (2)
certain asset purchase and sale agreements (the "APA's") of even date herewith,
whereby the Company has agreed to purchase certain of the assets of the
Covenanter;
WHEREAS, the Company and Covenanter are desirous of restricting the
competition of Covenanter, as provided herein.
NOW THEREFORE, in consideration of the inducement to enter into the APA's
and other good and valuable consideration, the receipt and sufficiency whereof
are hereby acknowledged, and in further consideration of the covenants and
agreements contained herein, the parties hereto agree with each other, as
follows:
1. Covenant Not to Compete. Covenanter agrees and covenants that
Covenanter shall not, without the prior written consent of the Company, directly
or indirectly, anywhere within the territory in which the Company conducts its
business (the "Restricted Territory") for a period from the date hereof until
five (5) years following the date hereof: (1) form, acquire, finance, assist,
support, or become associated as an employee, agent, partner, shareholder,
coventurer or otherwise, directly or indirectly, with, or engage in, a business
which is similar to the business of the Company (any such business is
hereinafter referred to as a "Competitive Business"); (2) for the purpose of
conducting or engaging in any Competitive Business, call upon, solicit, advise
or otherwise do, or attempt to do business with any suppliers, customers or
accounts of the Company or take away or interfere or attempt to interfere with
any customer, trade, business or patronage of the Company; (3) interfere with or
attempt to interfere with or hire any officers, employees, representatives or
agents of the Company, or any of the Company's subsidiaries or affiliates, or
induce or attempt to induce any of them to leave the employ of the Company or
any of the Company's subsidiaries or affiliates, or violate the terms of their
contract with any of them, or (4) make any statement disparaging the business of
the Company, or its subsidiaries, officers, directors and shareholders, to any
person, firm, corporation or other business organization whatsoever. Covenanter
shall not use or disclose, after the date hereof, any proprietary information or
know-how of the Company in any Competitive Business.
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2. Confidentiality. Covenanter agrees expressly that Covenanter shall not
use, permit the use of, disclose, or permit the disclosure to any competitor or
other third party of any Confidential Information (as herein defined).
Covenanter acknowledges that the continued success of Company is largely
dependent upon maintaining the confidentiality of such information and
preventing its disclosure to competitors and other third parties. "Confidential
Information" includes, but shall not be limited to, information pertaining to
research and development of new product designs, sales and marketing information
of Company, trade secrets, software programs, and customer data and shall
include any information of a similar nature hereafter identified to this
Agreement as confidential or proprietary. "Customer data" means any information
pertaining to a customer, distributor, supplier, or other person or entity
contacted to utilize Company's services or purchase or license its products,
including, but not limited to, preferences, pricing information, service needs,
software, and similar insider knowledge of such parties' requirements obtained
by Company at any time or obtained by Covenanter. Covenanter agrees that for the
five (5) year term of this Agreement Covenanter will not disclose to any
unauthorized person or use for its own account, anywhere within the geographical
territory in which Company is marketing its services or products, any of such
Confidential Information without the prior written consent of Company, unless
and to the extent the aforementioned matters become known to or available for
use by the public otherwise than as a result of Covenanter 's acts or omissions
to act. Covenanter further agrees that upon termination of this Agreement it
will not withhold or retain any records, papers, letters, or other data and
information with respect to Buyer's business without the prior written consent
of Company's Board of Directors.
3. Saving Clause. The Company and Covenanter intend that the covenants of
Sections 1 and 2 shall be deemed to be a series of separate covenants, one for
each county of each and every state, country, province, municipality, territory
or jurisdiction located in the Restricted Territory and one for each month of
the period specified above. If, in any judicial proceeding, a court shall refuse
to enforce any of such covenants, then such unenforceable covenants shall be
deemed eliminated from the provisions hereof for the purpose of such proceedings
to the extent necessary to permit the remaining separate covenants to be
enforced in such proceedings.
4. Injunction. In the event of a breach or a threatened breach by
Covenanter or any of its affiliates of this Sections 1 or 2, the Company shall
be entitled to an injunction restraining such breach without posting bond, but
nothing herein shall be construed to prohibit the Company from pursuing any
remedy available to the Company for such breach or such threatened breach.
5. Successors and Assigns; Gender. This Agreement shall inure to the
benefit of the Company, its successors and assigns and may not be terminated,
amended or modified, except by an instrument in writing executed by Covenanter
and the Company. The masculine gender shall be deemed to include the feminine
and neuter genders in this Agreement.
6. Governing Law. The provisions of this Agreement shall be construed, and
the performance thereof shall be enforced, in accordance with the laws of
California. The parties hereby irrevocably and unconditionally submit to the
exclusive jurisdiction and venue of the courts of California and the federal
courts of the United States of America located in such State in the event of any
dispute hereunder.
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7. Designation of Agent. Covenanter represents, warrants and covenants
that it is subject to service of process at the official residence of Xxxxxxxxx
in California, or an identified location communicated from time to time to the
Company should Xxxxxxxxx'x employment relationship with the Company terminate,
and that it will remain so subject so long as this Agreement is in effect
Covenanter further acknowledges that it will materially, directly or
indirectly, receive financial benefit from the underlying transactions.
Covenanter agrees that the execution of this Agreement and performance of its
obligations hereunder shall be deemed to have a California situs, and Covenanter
shall be subject to the personal jurisdiction of the courts of California with
respect to any action the Company, its successors or assigns may commence
hereunder. Accordingly, Covenanter hereby specifically and irrevocably (a)
agrees that any suit, action or other legal proceedings arising out of this
Agreement may be brought in the courts of record of California or the courts of
the United States located in such state; (b) consents to the jurisdiction of
each such court in any such suit, action or proceeding; and (c) waives any
objection which Covenanter may have to the laying of venue of any such suit,
action or proceeding in any of such courts.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties have each executed and delivered this
Agreement as of the day and year first above written.
COMPANY
IPEX, Inc.
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx "Xxxx" Alt
Title: Chief Executive Officer
COVENANTER
RGB Channel SRL
By: consigliere administezio de RGB Channel
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Name: /s/ Xxxxxxx Xxxxxxxxx
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Title: consigliere
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/s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
B Tech, Ltd.
By:
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Name:
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Title:
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/s/ Xxxxxxxx Xxxx
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Xxxxxxxx Xxxx
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