EXHIBIT 10.44
FORM OF NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (this "Agreement") is entered into as of June __,
2000 ("Effective Date"), by and between GlobalMedia.com, a Nevada corporation
("Global") and _____________ (referred to hereinafter as "Individual"), an
employee of OnRadio.com ("OnRadio").
RECITALS
A. OnRadio is engaged in the business of providing streaming media, web
site hosting, maintenance, content delivery, and e-commerce services to
terrestrial radio stations (the "Customers").
B. Individual is a key management employee of OnRadio.
C. As part of the transactions described in that certain Asset Purchase
Agreement dated as of June 6, 2000 (the "Asset Purchase Agreement"), between
Global and OnRadio, OnRadio has agreed to sell certain assets relating to its
terrestrial radio business to Global (the transactions contemplated by the
Asset Purchase Agreement are referred to hereinafter as the "Asset Purchase").
[Individual owns equity in OnRadio and will indirectly benefit from the
transactions contemplated in the Asset Purchase Agreement.]
D. As a condition to its willingness to enter into the Asset Purchase
Agreement, Global has required that Individual agree, and Individual has
agreed, to the noncompetition covenants provided in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and to induce Global
to consummate the transactions contemplated by the Asset Purchase Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Individual hereby covenants and agrees as
follows:
1. Noncompetition. During the period which shall commence at the
Effective Date and shall terminate on the earlier of the second anniversary
of the Initial Closing Date as defined in the Asset Purchase Agreement (such
period, the "Restricted Period"), Individual shall not compete directly with
GlobalMedia by directly soliciting the provision of e-commerce targeted
specifically to terrestrial radio station web sites, or by solicitation of
terrestrial radio station signal streaming media services to terrestrial
radio stations in North America.
2. Injunctive Relief. The remedy at law for any breach of this Agreement
is and will be inadequate, and in the event of a breach or threatened breach
by Individual of the
provisions of Sections 1 of this Agreement, Global shall be entitled to seek
an injunction restraining Individual from the conduct which would constitute
a breach of this agreement. Nothing herein contained shall be construed as
prohibiting Global from pursuing any other remedies available to it or them
for such breach or threatened breach, including, without limitation, the
recovery of damages from Individual.
3. Severability. If any of the provisions of this Agreement shall
otherwise contravene or be invalid under the laws of any state, country or
other jurisdiction where this Agreement is applicable but for such
contravention or invalidity, such contravention or invalidity shall not
invalidate all of the provisions of this Agreement but rather it shall be
construed, insofar as the laws of that state, country or jurisdiction are
concerned, as not containing the provision or provisions contravening or
invalid under the laws of that state or jurisdiction, and the rights and
obligations created hereby shall be construed and enforced accordingly.
4. Construction. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Califonia, without
regard to principles of conflicts or choice of laws; provided, however, that
with respect to activities occurring in a particular jurisdiction, the law of
such jurisdiction shall apply solely to the extent it results in the greatest
enforcement of the terms of this Agreement.
5. Amendments and Waivers. This Agreement may be modified only by a
written instrument duly executed by each party hereto. No breach of any
covenant, agreement, warranty or representation shall be deemed waived unless
expressly waived in writing by the party who might assert such breach. No
waiver of any right hereunder shall operate as a waiver of any other right or
of the same or a similar right on another occasion.
6. Entire Agreement. This Agreement contains the entire understanding of
the parties relating to the subject matter hereof, supersedes all prior and
contemporaneous agreements and understandings relating to the subject matter
hereof and shall not be amended except by a written instrument signed by each
of the parties hereto.
7. Counterparts. This Agreement may be executed by the parties in
separate counterparts, each of which, when so executed and delivered, shall
be an original, but all of which, when taken as a whole, shall constitute one
and the same instrument.
8. Section Headings. The headings of each Section, subsection or other
subdivision of this Agreement are for reference only and shall not limit or
control the meaning thereof.
9. Assignment. Neither this Agreement nor any right, remedy, obligation
or liability arising hereunder or by reason hereof nor any of the documents
executed in connection herewith may be assigned by any party without the
consent of the other parties; provided, however, that Global may assign their
rights hereunder, without the consent of Individual, to any entity that
acquires or succeeds to the business of Global Media.
10. Further Assurances. From time to time, at Global's request and
without further consideration, Individual shall execute and deliver such
additional documents and take all such further action as reasonably requested
by Global to be necessary or desirable to make effective, in the most
expeditious manner possible, the terms of this Agreement.
11. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or two business
days after being mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(a) if to Global:
Global Media Corp.
400 Robson Street
Vancouver, BC V6B 2B4
CANADA
Facsimile: 604-688-9996
Attention: Chief Executive Officer
with a copy to: Davis Wright Tremaine LLP
Suite 2600, 1501 Fourth Avenue
Seattle, Washington 98101
Facsimile: (206) 628-7699
Attention: Eric A. DeJong, Esq.
(b) if to Individual:
to the address set forth below the name of
Individual on the signature page hereof.
12. Effectiveness. Notwithstanding any other provision of this
Agreement, this Agreement shall become effective only upon the Effective
Time, and if such Effective Time shall not occur prior to the termination of
the Asset Purchase Agreement this Agreement shall be deemed void ab initio
and have no further force or effect upon such termination of the Asset
Purchase Agreement.
13. Defined Terms. Capitalized terms not otherwise defined herein shall
have the meanings given to them in the Asset Purchase Agreement.
[Signatures on next page]
IN WITNESS WHEREOF, the parties hereto have executed this Noncompetition
Agreement as of the date first above written.
GLOBALMEDIA.COM
By: /s/ L. James Porter
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Name:
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Title: Chief Financial Officer
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(Name)
All addresses c/o OnRadio.com
1500 Green Hills Road #205
Scotts Valley, CA 95066