AGREEMENT
This Agreement is entered into on this 23 day of September, 2002 by and
between Health Express USA, Inc. d/b/a Healthy Bites Grill (hereinafter referred
to as "Seller") and Roll-A-Round Real Roast Beef, Inc. (hereinafter referred to
as "Buyer").
WHEREAS, Seller desires to sell all of the assets of that certain business
known as Healthy Bites Grill located at 0000-X Xxxx Xxxxxxxxxx Xxxx., Xx.
Xxxxxxxxxx, Xxxxxxx to Buyer and Buyer desires to purchase the assets on such
terms and conditions as agreed upon between Seller and Buyer in that certain
Asset Purchase Agreement dated July 19, 2002 and Addenda thereto; and
WHEREAS, the parties acknowledge that this Agreement is a material
consideration to the sale and purchase of the business assets and is
specifically to protect the goodwill of the business, including the customer
list of the business; and
WHEREAS, the parties intend to enter into and will be bound by
the within agreement; and
WHEREAS, the parties recognize that there are legitimate business interests
justifying the terms of this Agreement including but not limited to:
a. valuable confidential business information
b. substantial relationships with specific prospective or
existing customers and
c. customer good will associated with an ongoing business
by way a specific geographic location and a specific
marketing or trade area; and
WHEREAS, this Agreement is reasonably necessary to protect the
legitimate business interests of the Buyer;
Now therefore in consideration of ten dollars ($10.00) and other good and
valuable consideration the sufficiency and adequacy of which are hereby
acknowledged, Seller agrees as follows:
1. Seller, its shareholders, officers and directors will not
do or attempt to do any of the following, either directly or
indirectly, during the period of five (5) years after the date of
closing within a five (5) mile radius of the business location of
0000-X Xxxx Xxxxxxxxxx Xxxx., Xx. Xxxxxxxxxx, Xxxxxxx:
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a. Compete against the Buyer.
b. Carry on a business similar to the
Buyer's business, which is a quick
service restaurant serving breakfast,
lunch and dinner.
c. Engage in a business similar to the
Buyer's business, which is a quick
service restaurant serving breakfast,
lunch and dinner.
d. Solicit old or existing customers of the
business for the purpose of competing with
the Buyer's, which is a quick
service restaurant serving breakfast,
lunch and dinner.
e. Employ any employee of the business.
f. Own, manage, be employed by, work for, have any interest in
directly or indirectly or in any manner, or engage in a business
similar to the business being sold, or aid or assist anyone else,
except Buyer, to do so, or solicit in any manner any past accounts
of the business, or consult for, be an officer or director,
advise, represent, engage in, or carry on any business or any
other business similar to the type of business engaged in by the
Seller at this time. It is acknowledged by the Buyer that Seller
is in gourmet fast health food business and operates other
retail locations of this business which will not, for the
purposes herein, be deemed a business similar to the Buyer's
business.
3. Seller agrees that this Agreement is important, material,
confidential, and gravely affects the effective and successful conduct of the
business being purchased by the Buyer and affects the Buyer's reputation and
good will. Buyer is entitled to obtain an injunction and damages for any breach
of this Agreement, including but not limited to compensatory, incidental,
consequential, exemplary, and lost profit damages. In the event Seller seeks
judicial intervention to enforce the terms of this agreement, the prevailing
party to said suit shall be entitled to reasonable attorney's fees and costs,
including those fees and costs for appeal and post judgment proceedings for
enforcement of this agreement.
4. Wherever used in this Agreement, the phrase "directly or indirectly"
includes but is not limited to acting through Seller's spouse, children,
parents, brothers, sisters, or any other relatives, friends, trustees, agents or
associates.
5. Buyer may waive a provision of this Agreement only in writing signed
by the President of the Buyer and specifically stating the subject matter that
is waived.
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6. The rights of the Buyer under this Agreement may be assigned, but
Seller may not assign its rights or obligations under this Agreement.
7. No change, addition, deletion or amendment of this Agreement shall
be valid or binding upon the Seller or Buyer unless in writing and signed by the
Seller and the Buyer.
8. This Agreement is intended to be a valid contract under Section
542.335, Florida Statutes. If a court of competent jurisdiction determines that
this Agreement is unreasonable, then said Court may reduce the term or the
geographical range, or both as set forth in this Agreement so as to be
reasonable.
9. This Agreement shall be governed by the laws of the State of Florida
and venue for any action brought here under shall be in Broward County, Florida.
IN WITNESS WHEREOF the parties have hereunto set forth their hands on the
date set forth above.
SELLER:
Health Express USA, Inc. d/b/a
Healthy Bites Grill
/s/ By:/s/ Xxxxxxx Xxxxx
------------------------ ----------------------------
Witness Xxxxxxx Xxxxx, Chief Executive Officer
/s/
------------------------
Witness BUYER:
Roll-A-Round Real Roast Beef, Inc.
/s/ By:/s/ Xxxxxxx Xxxxx
------------------------ -------------------------------
Witness Xxxxxxx Xxxxx, President
/s/
------------------------
Witness
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