EXHIBIT NO. 10.5
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NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT (hereinafter "Agreement") made as of
September 4, 2001, effective September 1, 2001, by and between INFINITI PAINT
CO., INC., a Florida corporation (hereinafter "INFINITI"), with offices at 0000
Xxxxx Xxxxxxxxx Xxxx, Xxxxx X-0, Xxxxxxx Xxxxx, Xxxxxxx 00000 and XXXXXX X.
XXXXXXX (hereinafter "XXXXXXX"), an employee of TROPICAL ASPHALT PRODUCTS
CORPORATION (hereinafter "TROPICAL"), a Florida corporation, with an office
located at 0000 Xxxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000.
W I T N E S S E T H :
WHEREAS, at the time of execution of this Agreement, INFINITI is a wholly-
owned subsidiary of Urecoats Industries Inc.;
WHEREAS, INFINITI is engaged in the business of selling, marketing, and
distributing adhesives, sealants, coatings, paints, and foam products, directly
to contractors (hereinafter "INFINITI'S BUSINESS"); and
WHEREAS, simultaneously with the execution of this Agreement, INFINITI and
TROPICAL entered into an exclusive manufacturing agreement (hereinafter
"Manufacturing Agreement").
NOW, THEREFORE , in consideration of the mutual covenants herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by the parties hereto, the parties hereto agree as
follows:
1. RECITALS.
The foregoing recitals are true and correct.
2. NON-COMPETITION.
(a) As a material inducement to INFINITI entering into the Manufacturing
Agreement, XXXXXXX agrees that she will not during the term of the
Manufacturing Agreement become associated in any manner, directly or indirectly,
with a new entity of any kind, for the purpose of commencing a new business
which engages in any business the same or substantially similar to INFINITI'S
BUSINESS, in the United States, without INFINITI's prior express written
consent, which consent shall not be unreasonably withheld.
(b) XXXXXXX acknowledges that the occurrence of any of the events
and/or activities set forth in Paragraph 2(a) above are events and/or activities
that will by their very nature result in irreparable injury to INFINITI which
irreparable injury cannot adequately be compensated by damages in an action at
law.
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(c) XXXXXXX covenants and agrees that if she violates this Agreement,
INFINITI, in addition to the equitable relief provided for in Paragraph 4
hereof, shall be entitled to an accounting and repayment of all profits,
compensation, commissions, remuneration, or benefits which XXXXXXX directly or
indirectly, has realized and/or may realize as a result of, growing out of, or
in connection with any such violation.
3. NONSOLICITATION OF EMPLOYEES AND CUSTOMERS; NONACCEPTANCE OF BUSINESS FROM
CUSTOMERS. At all times while TROPICAL maintains the Manufacturing Agreement
with INFINITI, XXXXXXX shall not, directly or indirectly, for herself or for
any other person, firm, corporation, partnership, association or other entity
(a) employ or attempt to employ or enter into any contractual arrangement with
any employee or former employee of INFINITI in connection with any business
competitive with the INFINITI BUSINESS, nor shall XXXXXXX make known the names
and addresses of such customers or any information relating in any manner to
INFINITI'S trade or business relationships with such customers, other than in
connection with the performance of XXXXXXX'x duties under this Agreement.
4. REASONABLENESS OF RESTRICTIONS.
(a) XXXXXXX has carefully read and considered the provisions of
Paragraph 2 hereof, and agrees that the restrictions set forth in such Paragraph
2 (including, but not limited to, the time period of restriction and the
geographical areas of restriction) are fair and reasonable and are reasonably
required for the protection of the interests of INFINITI.
(b) In the event that, notwithstanding the foregoing, any of the
provisions of Paragraph 2 shall be held to be invalid or unenforceable, the
remaining provisions thereof shall nevertheless continue to be valid and
enforceable as though the invalid or unenforceable parts had not been included
therein. In the event that any provision of Paragraph 2 hereof relating to time
period and/or areas of restriction shall be declared by a court of competent
jurisdiction to exceed the maximum time period or areas such court deems
reasonable and enforceable, said time period and/or areas of restriction shall
be deemed to become, and thereafter be, the maximum time period and/or area
which such court deems reasonable and enforceable.
5. EQUITABLE RELIEF.
In the event of a breach by XXXXXXX of any of the provisions of Paragraph
2(a), INFINITI, in addition to and not in limitation of any other rights,
remedies, or damages available to INFINITI at law or in equity, shall be
entitled to a permanent injunction in order to prevent or to restrain any such
breach by XXXXXXX or any and all persons directly or indirectly acting for,
with or on behalf of XXXXXXX.
6. MISCELLANEOUS PROVISIONS.
(a) TERMINATION OF AGREEMENT. This Agreement may be terminated by either
party with or without cause upon thirty (30) days prior written notice.
Notwithstanding the foregoing, the parties hereto agree that the provisions of
Paragraph 2 of this Agreement shall continue to apply for the period(s) of time
set forth herein.
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(b) NOTICES. All notices required or permitted to be given under the
terms of this Agreement shall be in writing. Notices may be personally delivered
to a party or may be mailed or sent via overnight delivery service by a
nationally recognized overnight delivery carrier to a party at its address first
set forth above or sent via facsimile. Notices are deemed given when actually
received by the party being noticed. However, if a notice is mailed to a party
by certified mail, return receipt requested, proper postage prepaid, in an
envelope addressed to the address of the party set forth in the first paragraph
of this Agreement (or such other address as may be designated by a party by
giving notice thereof to the other party), then such notice shall be deemed
given on the date that it is turned over to the custody of the United States
Postal Service.
(c) FURTHER ASSURANCES. All parties shall execute and deliver such other
instruments and do such other acts as may be necessary to carry out the intent
and purposes of this Agreement.
(d) GENDER. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural and vice versa.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts. All executed counterparts shall constitute one agreement,
notwithstanding that all signatories are not signatories to the original or the
same counterpart.
(f) CAPTIONS. The captions contained in this Agreement are inserted only
as a matter of convenience and in no way define, limit, extend or prescribe the
scope of this Agreement or the intent of any provision hereof.
(g) COMPLETENESS AND MODIFICATION. This Agreement constitutes the entire
understanding among the parties concerning the subject matter hereof and it
supersedes all prior or contemporaneous agreements or understandings. No waiver
or modification of the terms hereof shall be valid unless in writing signed by
the party or parties to be charged and only to the extent therein set forth. No
covenant, representation or condition not expressed in this Agreement shall
offset or be effective to interpret, change or restrict the express provisions
of this Agreement.
(h) SEVERABILITY. The invalidity in whole or in part of any covenant,
promise or undertaking, or any section, subsection, paragraph, sentence, clause,
phrase or word, or of any provision of this Agreement shall not affect the
validity of the remaining portions thereof.
(i) BINDING EFFECT. This Agreement shall be binding upon the heirs,
personal representatives, guardians, legal representatives, administrators,
assigns and successors of the parties hereto.
(j) ATTORNEYS' FEES. In the event of any litigation arising out of this
Agreement, the prevailing party shall be entitled to court costs and reasonable
attorneys' fees at the trial and at the appellate levels.
(k) ASSIGNMENT. Neither party to this Agreement shall be permitted to
assign any rights or obligations under this Agreement without the prior written
consent of the other party.
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(l) GOVERNING LAW AND VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida. The parties
hereto agree that all actions and proceedings relating directly or indirectly
hereto shall be litigated in any state court or federal court located in Broward
County, Florida, and the parties hereby expressly consent to the jurisdiction of
any such courts and to venue therein and consent to service of process in any
such action or proceeding by certified or registered mailing of the summons and
complaint therein directed to the parties at their respective addresses set
forth in this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and date first above written.
INFINITI PAINT CO., INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: President
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STATE OF FLORIDA )
)SS:
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this 4th day of
September, 2001, by INFINITI PAINT COMPANY, INC., a Florida corporation, by
Xxxxxxx X. Xxxxxx as President, on behalf of such company, who is personally
known to me or who has produced driver's license as identification and who did
not take an oath.
Notary Public:
sign /s/ Xxxxxx X. Xxxxx
print Xxxxxx X. Xxxxx
State of Florida at Large (Seal)
My Commission # CC 782654
My Commission Expires: October 16, 2002
Bonded thru Notary Public Underwriters
/s/ Xxxxxx X. Xxxxxxx
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XXXXXX X. XXXXXXX
STATE OF FLORIDA )
)SS:
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this 4th day of
September, 2001, by Xxxxxx X. Xxxxxxx, who is personally known to me or who has
produced driver's license as identification and who did not take an oath.
Notary Public:
sign /s/ Xxxxxx X. Xxxxx
print Xxxxxx X. Xxxxx
State of Florida at Large (Seal)
My Commission # CC 782654
My Commission Expires: October 16, 2002
Bonded thru Notary Public Underwriters
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