non compete agreement by jmcinerny

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									NON-COMPETITION AGREEMENT THIS NON-COMPETITION AGREEMENT (hereinafter referred to as the ("Agreement") is entered in this 4th day of August, 2005, by and between Hair Design of Williamsburg, Inc., a Maryland corporation, (the “Seller”), Thomas Leary and Mary Leary being the controlling shareholders and officers of Hair Design of Williamsburg, Inc.(jointly referred to hereinafter as the "Seller’s Shareholders and Officers"), and ABCD, Inc., a Maryland Corporation, (the “Purchaser”), the shareholders of which are Paul Rollins and Jane Burke. EXPLANATORY STATEMENT WHEREAS, the Seller and the Purchaser entered into a Purchase Contract dated June 20th, 2009 (the, Asset Purchase Agreement”), for the purchase and sale of the assets of the business which trades as " Hair Design of Williamsburg" (the "Business"), located at 10243 Keller Road, Oakhurst, Maryland 20098 (the "Business Premises"); and WHEREAS, Thomas Leary, as sole shareholder of Seller represents the controlling interest in Seller as required under Maryland Law for the Seller to consummate the transaction contemplated under the referenced Asset Purchase Agreement and WHEREAS, from the beginning of this transaction it has been, and it remains, the intention of the parties that the Seller, and the Seller’s Shareholders and Officers be bound by a covenant not to compete with the Business; and WHEREAS, the Purchaser desires to secure from the Seller and its Shareholders and Officers, and the Seller and the Seller’s Shareholders and Officers are willing to grant to the Purchaser a covenant and agreement not to compete with the Purchaser in its operation of the Business. NOW THEREFORE, in consideration of the mutual covenants set forth herein and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows: 1. Covenants of the Seller: For a period of two (2) consecutive years from the date of this Agreement, Seller, and the Seller’s Shareholders and Officers each covenants and agrees that it, he or she will not:

(a) Directly or indirectly, engage in the business of a beauty salon, spa, hair styling shop, barber shop business whether a an owner, manager, employee,

independent contractor or consultant within Montgomery County, Maryland; nor (b) Aid or assist anyone else, except the Purchaser to do so within these limits, nor have any direct interest in such business, except as an employee of the Purchaser; nor (c) Directly or indirectly solicit or attempt to solicit any employee, independent contractor or consultant of the Business to become an employee, consultant or independent contractor to or for any other person or entity, nor solicit any customers of the Business with whom Seller had contact or whose identity Seller learned as a result of his or her involvement with the Business. If an employee of the Business is involuntarily terminated by the Purchaser, the Seller or the Seller’s Shareholders may immediately hire that employee. If an employee resigns from the Business, the Seller or the Seller’s Shareholders may hire the employee after a period of not less than ninety (90) days after such employee’s last day of work for the Purchaser’s Business; nor (d) Use or disclose to any person or entity any confidential information of the Business or permit any person to examine and/or make copies of any materials, documents or other work product which contain or are derived from confidential information of the Business or which are or were connected to the Business without the prior written consent of Purchaser. Confidential information shall include but shall not be limited to: (i) product information, information regarding plans for research, development, new products, marketing and selling, billing procedures, plans of operation, budgets and unpublished financial statements, licenses, prices and costs, lists of suppliers and customers, lists of employees, and information regarding the skills and compensation of other employees of the Business; (ii) all formulae, protocols, data (including cost and performance data), inventions, business plans, writings, specifications, procedures and techniques, methods, technology, know-how, programs, devices and materials relating to the business, products (both existing and under development), security devices, services or activities of the Business regardless of whether or not any or all of the foregoing may be patented or copyrighted; (iii) any other information or aspect of or related to any of the Business's trade, business products or activities which are designed or treated by the Business as confidential, secret, or of a proprietary nature; (iv) any customer's usage and requirements, including, without limitation, any of the Business's customer databases and customer files; and (v) any and all manuals, databases, computer generated 2

information, brochures, formats, binders and the like relating to pricing or marketing presentations.

2. Reasonableness; Enforceability: The parties hereto agree that the restrictions imposed upon the Seller and the Seller’s Shareholders and Officers by the provisions of this Agreement are fair and reasonable and are reasonably required for the protection of the Purchaser. In the event that the provisions of this Agreement relating to the area of restriction or the period of restriction shall be deemed to exceed the maximum area or period of time which a court of competent jurisdiction would deem enforceable, said area and/or period of duration shall, for the purposes of this Agreement, be deemed to be the maximum area or duration of time which a court of competent jurisdiction would deem enforceable. 3. Breach; Remedies:

(a) In the event of a breach or threatened breach by Seller, or its Shareholders or Officers (collectively referred to in this section as "Seller") of the restrictive covenants contained herein, Seller acknowledges and stipulates that Purchaser and its Shareholders (collectively referred to in this section as "Purchaser") shall not have an adequate remedy at law and shall suffer irreparable harm; and, therefore, it is mutually agreed and stipulated by the parties hereto that, in addition to any other remedies at law or in equity which the Purchaser may have, the Purchaser shall be entitled to obtain in a court of law and/or equity a temporary and/or permanent injunction restraining Seller from any further violation or breach of such covenants, and, if applicable, monetary damages. Nothing herein stated shall be construed as prohibiting the Purchaser from pursuing any other available remedies for such breach or threatened breach, including the recovery of damages from the Seller. (b) In view of the difficulty of determining the amount of the damages which may result to Purchaser from a violation of any of the restrictive covenants contained in this Agreement, Seller shall pay to Purchaser, $15,000.00 as liquidated damages for each and every such violation under Section 1(a); $10,000.00 as liquidated damages for each and every such violation under Sections 1(b) and 1(c); and $5,000.00 for each and every violation of Section 1(d); payment of such amounts as liquidated damages shall not be construed as a release or waiver by Purchaser of the right to prevent any such violation in equity or otherwise, or to pursue, against Seller additional damages as a result of violation of this Section or to cease payments which may be due Seller under this Agreement. (c) In the event of a default under this Agreement, and the institution of legal proceedings relative thereto, the prevailing party in such litigation shall be entitled to recover reasonable attorney's fees from the other party in addition to any other damages that may be properly recoverable in such action. 3

4. Entire Agreement: This Agreement represents the entire agreement of the parties relating to the subject matter hereof. This Agreement may not be modified except by an instrument in writing duly executed by the parties.

5. Notices: All notices, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered personally or if sent registered or certified mail, return receipt requested, properly addressed and postage prepaid: If to Seller, Seller’s Shareholders/Officers Hair Design of Williamsburg, Inc. If to the Buyer, Buyer’s Shareholders/Officers ABCD, Inc. Attn: Jane Thomas, Secretary with a copy to: Law Offices of Justin McInerny with a copy to: Law Offices Anthony R. Mello Attn

or to such other address as shall be designated from time to time by any of the parties hereto by appropriate written notice given to the other party or parties at least ten (10) days in advance of the effective date of said change of address. 6. Counterparts: This Agreement may be executed simultaneously in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. 7. Miscellaneous:

(a) The paragraph headings used herein are for convenience and reference only and shall not enter into the interpretation hereof. (b) Should any of the provisions contained in this Agreement be held invalid or unenforceable, such portion shall be severed, and the remaining portions of the covenants shall remain valid and enforceable. In the event that a court of competent jurisdiction or board of arbitration determines by final judgment that the scope, time period, or geographical limitations of the covenants specifically set forth herein are too broad to be capable of enforcement, or that the remedies are unreasonable, the covenants and remedies established by the Court or board of arbitration shall be applied to reduce the provision determined to be unreasonable and then the entire covenant or remedy as modified shall be enforced. (c) The parties each reserve the right to waive any of the terms of this Agreement which benefits the party waiving the same. Any such waiver must be in a writing signed by the party waiving the same. (d) The obligations of each of the parties hereunder are joint and several. 4

(e) It is the intention of the parties hereto that all questions with respect to the interpretation and enforcement of this Agreement and the right and liabilities hereunder shall be determined in accordance with the laws of the State of Maryland. (f) No provision of this Agreement shall be construed against a party by virtue of the fact that this Agreement or a particular provision hereof was prepared by the attorney for that party, whether or not this Agreement was reviewed by legal counsel for the other party. (g) Each party hereby acknowledges that it, he or she has been advised of the need to be represented by counsel of his or her own choosing in regard to this negotiation and preparation of this Agreement and has acted of its, his or her own choosing; that it, he or she has read the terms of this Agreement; that it, he or she has had the opportunity to ask its, his or her attorney (with the assistance of an interpreter, if necessary) any questions he or she may have concerning this Agreement and the meaning and effect of each provision hereof; that it, he or she fully understands the meaning and import of this Agreement; and that by its, his or her signature appearing below, it, he or she fully intends to be legally bound hereby. IN WITNESS WHEREOF, this Agreement has been executed under seal as of the day and year first above written. ATTEST: SELLER: Hair Design of Williamsburgs, Inc. By: Thomas Leary, President SELLER’S SHAREHOLDERS: CONTROLLING




Thomas Leary,


BUYER: ABCD, Inc. By: President 5


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