Exhibit 10.3(e)
COVENANT NOT TO COMPETE OR SOLICIT BUSINESS
Modem Media. Xxxxx Xxxxx, Inc. ("Company") and Xxxx Xxxxxxx ("Execuitve") enter
into this Covenant Not To Compete or Solicit Business ("Covenant") as December
31,1998.
WHEREAS, Company and Executive are parties to an Employment Agreement;
NOW, THEREFORE, in further consideration of the promises and mutual covenants
contained in the Employment Agreement, Executive covenants and agrees as
follows:
1. Covenant Not To Compete. Executive covenants that during the period
commencing on the Effective Date of the Employment Agreement and ending 12
months after the later of (i) the termination of Executive's Employment with
Company or (ii) the end of any severance payment or other salary continuation
period (the "Non-Compete Period"), either individually or in partnership or
jointly or in conjunction with any person or persons, firm, association,
syndicate, company, contractor, corporation or organization of any kind, as
principal, agent, trustee, shareholder, employee or consultant, or in any other
manner whatsoever, whether directly or indirectly, he shall not render or assist
others in rendering services to or for any person or persons, firm, association,
syndicate, company or corporation, that is engaged in any business substantially
similar to any part of:
(a) advertising, media or direct marketing services delivered through the
Internet or corporate intranets or digital communications services
dedicated to marketing purposes that competes directly or indirectly with
Company's business strategy during the two-year period immediately
preceding the date employment is terminated;
(b) any other advertising, media or direct marketing services delivered through
the Internet or corporate intranets, digital communications services
dedicated to marketing purposes for which Company or its affiliates has, as
of the termination of such Employee's employment, formulated plans, of
which Executive is aware, to commence carrying on within I year after the
date employment is terminated; or
(c) any advertising, media or direct marketing services delivered through the
Internet or corporate intranets, digital communications services dedicated
to marketing purposes solicited by Company or its affiliates with respect
to clients or potential clients of Company or its affiliates.
Without limiting the foregoing, nothing herein shall prohibit Executive from
being a passive owner of not more than 5% of the outstanding stock of any class
of a corporation or other entity which is publicly traded, so long as Executive
has no active participation in the business of such corporation or other entity.
2. Covenant Not To Solicit. Executive covenants and agrees that he will not,
and will not attempt to, at any time during the Non-Compete Period, directly or
indirectly, induce or assist in the inducement of:
(i) any employee or consultant of Company away from Company or its Affiliates
or from the faithful discharge of such employee's or consultant's
contractual and fiduciary obligations to serve Company's or its Affiliates'
interest; or
(ii) any "Client" of Company or its Affiliates away from Company or its
Affiliates.
As used in this Covenant, "Client" shall mean those persons, firms, corporations
or other entities (a) who are current clients of Company or its Affiliates, (b)
who are active new business contacts (as defined by written or oral proposals or
contemplation of proposals between company or its affiliates), as is applicable,
during the Non-Compete Period or (c) who are strategic new business prospects of
the Company or its Affiliates, which list of prospects will be defined at the
time of Executive's departure and will be limited to no more than 12 companies.
3. Non Interference. Executive covenants and agrees that he will not at any
time during the Non Competition/Non-Solicitation Period, directly or indirectly,
seek to cause the termination or any change in the terms of any relationships
between Company or its affiliates and any supplier or vendor or prospective
supplier or vendor of Company or its affiliates; provided, however, that
Executive shall not be precluded from utilizing any supplier or vendor.
4. Remedies. If Executive violates any of the terms of this Covenant, Company
or any of its affiliates shall be entitled to all appropriate remedies,
including an interim, interlocutory or permanent injunction or restraining order
to be issued by any competent court enjoining and restraining Executive from
such wrongful acts. It is further agreed that Company or any of its affiliates
would be irreparably damaged by Executive's breach of any provision of this
Covenant, that damages for such a breach are not easily calculated, and that any
remedy at law would be inadequate. Therefore, Company and any of its affiliates
shall be entitled to seek and obtain injunctive or other equitable relief
against Executive, his agents, assigns or successor for a breach of this
Covenant and without the necessity of proving actual monetary loss. It is
expressly understood between the parties that this injunctive or equitable
relief shall not be Company's or any of its affiliates' exclusive remedy for
breach of this Covenant.
Should any litigation be commenced concerning any provision of this Covenant,
the prevailing party shall be entitled, in addition to such other relief as may
be granted, to its attorneys' fees and costs incurred by reason of such
litigation.
5. Legal Enforceability. Any provision of this Covenant which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
6. Governing Law. This Covenant shall be governed by and construed in
accordance with the internal laws as opposed to the conflicts of law provisions)
of the State of Connecticut.
7. Entire Agreement; Amendment. This Covenant and the Employment Agreement
constitute the entire agreement between Company and Executive with respect to
the subject matter hereof. This Covenant supersedes any prior agreement made
between the parties. The parties may not amend this Covenant except by written
instrument signed by each party hereto and approved by C.E.O. of the Company.
8. Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given or delivered and
received when delivered personally (which shall be deemed to include delivery
via express courier such as Federal Express) or three days after having been
sent by registered or
certified mail or upon receipt when sent by facsimile (but only if receipt is
confirmed by the addressee by a return facsimile signed by the addressee)
addressed as follows:
If to Company, to:
Modem Media. Xxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: X. X. X'Xxxxxxx, Chairman and CEO
If to Executive, to:
Xxxx Xxxxxxx
0 Xxxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
9. Successors and Assigns. Executive acknowledges that his obligations
hereunder are unique and personal. Accordingly, Executive may not assign any of
his rights or delegate any of his duties or obligations under this Covenant.
Company may assign its rights, duties or obligations under this Covenant to any
person with whom it has merged or consolidated, or to whom it has transferred
all, or substantially all, of its assets.
This Covenant shall be binding upon and inure to the benefit of the parties
hereto and their permitted successors and assigns. Nothing in this Covenant,
express or implied, is intended or shall be construed to confer upon any person
other than the parties and their respective successors and assigns permitted by
this Covenant any right, remedy or claim under, or by reason of, this Covenant.
10. Waiver. No provisions of this Covenant shall be deemed to be waived as a
result of the failure of Company or its affiliates or Executive to require the
performance of any term or condition of this Covenant or by other course of
conduct. To be effective, a waiver must be in writing, signed by all of the
parties hereto and approved by the Board of Directors or the Compensation
Committee of the Board of Directors of Company and state specifically that it is
intended to constitute a waiver of a term or breach of this Covenant. The waiver
by Company or its Affiliates or Executive of any term or breach of this Covenant
shall not prevent a subsequent enforcement of such term or any other term and
shall not be deemed to a waiver of any subsequent breach.
EXECUTIVE ACKNOWLEDGES THAT HE HAS READ, UNDERSTOOD AND ACCEPTS THE PROVISIONS
OF THIS COVENANT. HE ALSO ACKNOWLEDGES THAT HE HAS HAD THE OPPORTUNITY TO AND
HAS REVIEWED THE TERMS AND CONDITIONS OF THIS COVENANT WITH COUNSEL.
IN WITNESS WHEREOF, the parties hereto have executed this Covenant as of the
date first written above.
Modem Media. Xxxxx Xxxxx, Inc. Xxxx Xxxxxxx
By:/s/ Xxxxxx X. Xxxxx /s/ Xxxx Xxxxxxx
Position: President
