Exhibit 10.10
NON-COMPETITION AND NON-SOLICITATION AGREEMENT
THIS NON-COMPETITION AND NON-SOLICITATION AGREEMENT (this
"Agreement") dated as of February 3rd, 2006, is by and between RelationServe
Media, Inc. (the "Company"), ▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), ▇▇▇▇▇▇▇▇ ▇▇▇▇ ("▇▇▇▇"),
Boston Technology Ventures Corporation ("BTVC") and ▇▇▇▇▇▇ & Estes
Advertising, Inc. ("▇▇▇▇▇▇" and together with ▇▇▇▇▇▇, ▇▇▇▇ and BTVC, the
"Sellers").
W I T N E S S E T H:
WHEREAS, the Company is engaged in the development, sales and
support of online and offline direct-response marketing services (the "Company's
Business");
WHEREAS, the Company is a party to that certain securities purchase
agreement (the "Purchase Agreement") dated as of October 31, 2005, among the
Company, SendTec Acquisition Corp., a Delaware corporation, each purchaser
identified on the signature pages thereto (collectively the "Purchasers") and
Christiana Corporate Services, Inc., a Delaware corporation, in its capacity as
administrative agent for the Purchasers (the "Agent");
WHEREAS, Article IV, Section 4.11(a)(i)(4) of the Purchase Agreement
provides that the Company must deliver to the Agent evidence reasonably
satisfactory to the Required Purchasers (as defined in the Purchase Agreement)
that neither ▇▇▇▇▇▇ nor any ▇▇▇▇▇▇ family members or affiliates own any equity
or other interest in the Company and that ▇▇▇▇▇▇ shall have given the Company a
general release of all claims and entered into non-competition and
non-solicitation agreements reasonably satisfactory to the Purchasers;
WHEREAS, the Sellers have represented to the Company that none of
the Sellers, except as to ▇▇▇▇ who owns 100,000 immediately exercisable options
to purchase Common Stock issued to her under the Company's 2005 Incentive Stock
Plan, currently own any equity or other interest in the Company and that the
Company and the Sellers have entered into a Mutual General Release..
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and promises made herein and the benefits received by the Sellers in
connection with the disposition of their equity and other interests, including
but not limited to the forfeit by ▇▇▇▇▇▇ of 1,000,000 options to purchase Common
Stock and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged and intending to be legally bound hereby, the
parties hereto agree as follows:
1. NON-COMPETITION AND NON-SOLICITATION. For a period ending one
year following the date hereof, no Seller shall, directly or indirectly:
(a) own an interest in, operate, join, control or participate
in, or be connected as an officer, employee, agent, independent contractor,
partner, shareholder, member, manager or principal of any corporation,
partnership, proprietorship, firm, association, person, or other entity engaged
in a business directly competitive with the Company's Business;
(b) take any action, in connection with a business directly
competitive with the Company's Business, which might, or which might be
anticipated to, divert from the Company any opportunity which would be within
the scope of the Company's Business;
(c) either for himself, herself or itself or for any other
person, or entity, divert or take away (or attempt to divert or take away), call
on or solicit (or attempt to call on or solicit), any of the customers or
clients of the Company for the purpose of inducing such persons to do business
with a direct competitor of the Company; or
(d) induce or influence, or seek to induce or influence, any
person who is engaged as an employee, agent, independent contractor, consultant,
advisor or otherwise by the Company, to terminate his, her or its employment,
engagement or relationship with the Company or to become employed or engaged by
any other business in competition with the Company.
2. CONFIDENTIALITY. Each Seller agrees not to disclose to any third
party, or publish or make use of any knowledge or information of any type
whatsoever of a confidential or proprietary nature relating to the Company or
its affiliates and their respective businesses, including without limitation all
types of trade secrets (unless readily ascertainable from public or published
information or trade sources) without the prior written consent of the Company.
3. MISCELLANEOUS.
3.1 INSURANCE BENEFITS. The Company hereby agrees for a period
of two years from the date hereof to provide to ▇▇▇▇▇▇ the same insurance
benefits as he currently receives.
3.2 OFFICE FURNITURE. The Company hereby acknowledges that
▇▇▇▇▇▇ may remove all his personal office furniture.
3.3 WAIVER. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by any party.
3.4 ENFORCEMENT. Each Seller acknowledges that were he, she or
it to breach the provisions of this Agreement, the damages to the Company would
be irreparable, and each Seller therefore agrees that in the event that he, she
or it is in breach of or threatens to breach this Agreement, then the Company
shall be entitled to equitable relief, in addition to any other remedies the
Company may have at law, including an injunction restraining such Seller from
such breach, and shall be entitled to recover from such Seller, in addition to
any monetary damages, the costs and expenses (including reasonable attorneys'
fees and other costs), incurred by it in securing such relief. Nothing herein
shall be construed as prohibiting the Company from pursuing any other remedies,
at law or in equity, for such breach or threatened breach. Further, each Seller
hereby waives any requirement for security or the posting of any bond or other
surety and proof of damages.
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3.5 PARTIAL INVALIDITY. If any provision in this Agreement is
held by a court of competent jurisdiction to be invalid, void, or unenforceable,
the remaining provisions shall nevertheless continue in full force without being
impaired or invalidated in any way.
3.6 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument. Any such counterpart
signature page may be delivered by electronic means or facsimile and shall
become binding on the delivering party upon receipt by the other party.
3.7 CHOICE OF LAW. This Agreement shall be governed by, and
shall be construed in accordance with, the laws of the State of Florida, without
reference to conflicts of law principles.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first above written.
RELATIONSERVE MEDIA INC.
By: /s/
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Name:
Title:
SELLERS
/s/
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▇▇▇▇▇ ▇▇▇▇▇▇
Address:
/s/
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▇▇▇▇▇▇▇▇ ▇▇▇▇
Address:
BOSTON TECHNOLOGY VENTURES
CORPORATION
By: /s/
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Name:
Title:
Address:
▇▇▇▇▇▇ & ESTES ADVERTISING, INC.
By: /s/
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Name:
Title:
Address: