NON-COMPETE AGREEMENT
Exhibit
10.3
THIS
NON-COMPETE AGREEMENT (the "Agreement") is entered into on June ____, 2007
by
and between Xxxxx X. Prygelski (the "Employee") and 21st
Century
Holding Company, a Florida corporation (the "Company").
WITNESSETH:
WHEREAS,
the Employee is employed by the Company and the Employee and the Company,
intending to be legally bound hereby and in consideration of the promises
contained herein, do hereby agree as follows:
1. Non-Competition.
During
the Term and for a period of two
(2)
year(s)
following the termination (other than without Cause) of the Employee’s
employment by the Company, Employee shall not, directly or indirectly engage
in
or have any interest in, directly or indirectly, any sole proprietorship,
partnership, corporation, business or any other person or entity (whether as
an
employee, officer, director, partner, agent, security holder, creditor,
consultant or otherwise) that, directly or indirectly, engages primarily in
the
development, marketing, distribution, underwriting or sale of products and
services competitive with the Company’s and/or any subsidiary’s products and
services in any and all states in which the Company and/or any subsidiary
conducts its business during the Term or at the time Executive’s employment with
the Company is terminated (the “Territory”); provided, however, that Employee
may hold Company securities and/or acquire, solely as an investment, shares
of
capital stock or other equity securities of any such company, so long as
Employee does not control acquire a controlling interest in or become a member
of a group which exercises direct or indirect control of, more than five percent
of any class of capital stock of such corporation.
2. Nondisclosure.
During
the Term and following termination of the Employee’s employment with the
Company, Employee shall not divulge, communicate, use to the detriment of the
Company or for the benefit of any other person or persons, or misuse in any
way,
any Confidential Information (as hereinafter defined) pertaining to the business
of the Company. Any Confidential Information or data now or hereafter acquired
by the Executive with respect to the business of the Company (which shall
include, but not be limited to, information concerning the Company’s financial
condition, prospects, technology, customers, methods of doing business and
marketing, distribution, underwriting or sale of the Company’s products and
services) shall be deemed a valuable, special and unique asset of the Company
that is received by the Employee in confidence and as a fiduciary. For purposes
of this Agreement “Confidential Information” means information disclosed to the
Employee or known by the Employee as a consequence of or through his employment
by the Company (including information conceived, originated, discovered or
developed by the Employee) prior to or after the date hereof and not generally
known or in the public domain, about the Company or its business.
Notwithstanding the foregoing, nothing herein shall be deemed to restrict the
Employee from disclosing Confidential Information to the extent required by
law.
3. Nonsolicitation
of Employees.
During
the Term and for a period of two
(2)
year(s)
following termination of the Employee’s employment with the Company, Employee
shall not directly or indirectly, for himself or for any other person, firm,
corporation, partnership, association or other entity, attempt to employ or
enter into any contractual arrangement with any employee or former employee
of
the Company, unless such employee or former employee has not been employed
by
the Company for a period in excess of six months.
4. Books
and Records.
All
books, records, accounts and similar repositories of Confidential Information
of
the Company, whether prepared by the Employee or otherwise coming into the
Executive’s possession, shall be the exclusive property of the Company and shall
be returned immediately to the Company on termination of this Agree-ment or
on
the Board’s request at any time.
5. Injunction.
It is
recognized and hereby acknowledged by the parties hereto that a breach by the
Employee of any of the covenants contained in this Agreement will cause
irreparable harm and damage to the Company, the monetary amount of which may
be
virtually impossible to ascertain. As a result, the Employee recognizes and
hereby acknowledges that the Company shall be entitled to an injunction from
any
court of competent jurisdiction enjoining and restraining any violation of
any
or all of the covenants contained in this Agreement by the Employee or any
of
his affiliates, associates, partners or agents, either directly or indirectly,
and that such right to injunction shall be cumulative and in addition to
whatever other remedies the Company may possess.
6. Binding
Effect.
Except
as herein otherwise provided, this Agreement shall inure to the benefit of
and
shall be binding upon the parties hereto, their personal representatives,
successors, heirs and assigns.
7. Terminology.
All
personal pronouns used in this Agreement, whether used in the masculine,
feminine or neuter gender, shall include all other genders; the singular shall
include the plural and vice versa. Titles of Paragraphs are for convenience
only, and neither limit nor amplify the provisions of the Agreement
itself.
8. Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof. It supersedes all prior negotiations,
letters and understandings relating to the subject matter hereof.
9. Amendment.
This
Agreement may not be amended, supplemented or modified in whole or in part
except by an instrument in writing signed by the party or parties against whom
enforcement of any such amendment, supplement or modification is
sought.
10. Choice
of Law.
This
Agreement will be interpreted, construed and enforced in accordance with the
laws of the State of Florida, without giving effect to the application of the
principles pertaining to conflicts of laws.
11. Effect
of Waiver.
The
failure of any party at any time or times to require performance of any
provision of this Agreement will in no manner affect the right to enforce the
same. The waiver by any party of any breach of any provision of this Agreement
will not be construed to be a waiver by any such party of any succeeding breach
of that provision or a waiver by such party of any breach of any other
provision.
12. Severability.
The
invalidity, illegality or unenforceability of any provision or provisions of
this Agreement will not affect any other provision of this Agreement, which
will
remain in full force and effect, nor will the invalidity, illegality or
unenforceability of a portion of any provision of this Agreement affect the
balance of such provision. In the event that any one or more of the provisions
contained in this Agreement or any portion thereof shall for any reason be
held
to be invalid, illegal or unenforceable in any respect, this Agreement shall
be
reformed, construed and enforced as if such invalid, illegal or unenforceable
provision had never been contained herein.
13. Enforcement.
Should
it become necessary for any party to institute legal action to enforce the
terms
and conditions of this Agreement, the successful party will be awarded
reasonable attorneys' fees at all trial and appellate levels, expenses and
costs. Any suit, action or proceeding with respect to this Agreement shall
be
brought in the courts of Broward County in the State of Florida or in the U.S.
District Court for the Southern District of Florida. The parties hereto hereby
accept the exclusive jurisdiction of those courts for the purpose of any such
suit, action or proceeding.
Venue
for
any such action, in addition to any other venue permitted by statute, will
be
Broward County, Florida. The parties hereto hereby irrevocably waive, to the
fullest extent permitted by law, any objection that any of them may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or any judgment entered by any court in
respect thereof brought in Broward County, Florida, and hereby further
irrevocably waive any claim that any suit, action or proceeding brought in
Broward County, Florida, has been brought in an inconvenient forum.
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The
parties hereto acknowledge and agree that any party's remedy at law for a breach
or threatened breach of any of the provisions of this Agreement would be
inadequate and such breach or threatened breach shall be per se deemed as
causing irreparable harm to such party. Therefore, in the event of such breach
or threatened breach, the parties hereto agree that, in addition to any
available remedy at law, including but not limited to monetary damages, an
aggrieved party, without posting any bond, shall be entitled to obtain, and
the
offending party agrees not to oppose the aggrieved party's request for,
equitable relief in the form of specific enforcement, temporary restraining
order, temporary or permanent injunction, or any other equitable remedy that
may
then be available to the aggrieved party.
14. Binding
Nature.
This
Agreement will be binding upon and will inure to the benefit of any successor
or
successors of the parties hereto.
15. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which will be
deemed an original.
16. Notice.
Any
notice required or permitted to be delivered hereunder shall be deemed to be
delivered when sent by facsimile with receipt confirmed or when deposited in
the
United States mail, postage prepaid, registered or certified mail, return
receipt requested, or by overnight courier, addressed to the parties at the
addresses first stated herein, or to such other address as either party hereto
shall from time to time designate to the other party by notice in writing as
provided herein.
IN
WITNESS WHEREOF, this Agreement has been duly signed by the parties hereto
on
the day and year first above written.
21ST CENTURY HOLDING COMPANY | ||
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|
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By: | ||
Name: Xxxxxx X. Xxxxxx |
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Title: Chief Executive Officer | ||
Xxxxx X. Prygelski, EMPLOYEE |
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