NONCOMPETITION AND NONSOLICITATION AGREEMENT
THIS NONCOMPETITION AND NONSOLICITATION AGREEMENT (this
"Agreement") is made and entered as of December 23, 2005, by and between
International Franchise Corp., an Ontario corporation ("Buyer"), Integrated
Brands Inc., a New Jersey corporation ("IB") and CoolBrands International Inc.,
a Nova Scotia corporation ("CB," and together with IB, the "Stockholders").
WHEREAS, Buyer and Stockholders are parties to that certain
Stock Purchase and Sale Agreement, dated as of the date hereof (the "Purchase
Agreement"); and
WHEREAS, it is a condition precedent to the Buyer and
Stockholders completing the transactions contemplated by the Purchase Agreement
that they enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used in this Agreement, unless
otherwise defined herein, shall have the meanings set forth or referred to in
the Purchase Agreement. For purposes of this Agreement:
(a) "Affiliate" of any Person means another Person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such first Person.
(b) "Person" means an individual, corporation, partnership,
limited liability company, joint venture, association, trust, unincorporated
organization or other entity, including any governmental entity.
2. Noncompetition and Nonsolicitation.
(a) The Stockholders understand that violation by the
Stockholders of the following provisions would result in irreparable harm to
Buyer. Therefore, until the fifth anniversary of the date hereof (such five-year
period, the "Restricted Period"), the Stockholders agree that they will not, and
will cause their Affiliates not to, (1) offer or sell or attempt to offer or
sell any soft serve or hard pack frozen yogurt or ice cream products or frozen
novelties to [REDACTED] or any other franchisee, licensee or non-traditional
customers of the Included Franchise Business as of the date hereof, (2) use, for
any business purpose detrimental to the Buyer and the Included Franchise
Business, the customer list and location specific historical sales volume
information relating to the Included Franchise Business, which shall be the
property of Buyer, (3) hire, solicit, or entice away any Person who, as of the
date hereof and after giving effect to the Closing under the Purchase Agreement,
is an employee or consultant of any of Buyer or its Affiliates or otherwise
provides services to any of Buyer or its Affiliates (other than the Stockholders
and their Affiliates) for any reason, and (4) attempt to persuade any such
employee or consultant to terminate or refrain from engaging in his or her
employment or other service relationship for any reason or otherwise interfere
with any of Buyer's or its Affiliates'
relationship with any such employees or consultants; except that nothing herein
shall restrict the Stockholders and their Affiliates from offering employment to
or hiring [REDACTED]. Each Stockholder further agrees that it will not, and will
cause its Affiliates not to, disparage any of Buyer or its Affiliates. For
purposes of this provision, the term "disparage" includes making comments or
statements by or on behalf of the Stockholders to third parties, including the
press, media or to any customer, prospective customer or any other Person with
whom any of Buyer and its Affiliates has or is seeking a business or
relationship, that is intended to have a material adverse impact on the business
or business reputation of the Included Franchise Business.
(b) Buyer understands that violation by the Buyer of the
following provisions would result in irreparable harm to the Stockholders.
Therefore, during the Restricted Period, Buyer agrees that it will not, and will
cause its Affiliates not to, directly or indirectly, for itself or on behalf of
any other Person, (1) offer or sell or attempt to offer or sell any soft serve
or hard pack frozen yogurt or ice cream products or frozen novelties to
[REDACTED], (2) hire, solicit, or entice away any Person who, as of the date
hereof, is an employee, consultant, supplier or customer of any of the
Stockholders or their Affiliates or otherwise provides services to any of the
Stockholders or their Affiliates for any reason, and (3) attempt to take away,
interfere with, persuade or take any action which could have the effect of
interfering, taking away or persuading, any such Person referenced in clause (2)
to reduce, redirect, terminate, refrain from engaging in or otherwise adversely
affecting such Person's business or other relationship with any of the
Stockholders' or their Affiliates' relationship with any such Person; except
that nothing herein shall restrict Buyer and its Affiliates from offering
employment to or hiring [REDACTED]. Buyer also acknowledges and agrees that it
has reviewed the agreements set forth on Schedule A hereto, and will not, and
will cause its Affiliates not to, take any action (including, without
limitation, opening any franchise or other stores or granting any master
franchise, area development of other rights) which, if taken by any of the
Stockholders or their Affiliates, could reasonably result in a breach or
violation of, or liability to the Stockholders or their Affiliates under, any
such agreement. Buyer further agrees that it will not, and will cause its
Affiliates not to, disparage any of the Stockholders or their Affiliates. For
purposes of this provision, the term "disparage" includes making comments or
statements by or on behalf of the Buyer to third parties, including the press,
media or to any customer, prospective customer or any other Person with whom any
of the Stockholders and their Affiliates has or is seeking a business or
relationship, that is intended to have a material adverse impact on the business
or business reputation of any of the Stockholders and their Affiliates. For
avoidance of doubt, Affiliates of Buyer shall include, without limitation, each
of Aaron and Simon Serruya and their spouses, children and other family members
and any officers or directors of Buyer.
(c) Nothing in this Agreement shall prevent any of the
Stockholders, Buyer or their respective Affiliates from owning less than 1% of
the publicly traded stock of any other Person whether or not in competition with
the other party; provided that Buyer, the Stockholders or their respective
Affiliates, as applicable, shall have no special voting rights, board
representation or other oversight or information rights with respect to such
Person (except as generally available to all stockholders of such Person).
3. Enforcement; Remedies and Forfeitures.
(a) Each of Buyer and the Stockholders acknowledges and agrees
that its
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breach of this Agreement will result in immediate and irreparable harm to the
other. Each of Buyer and the Stockholders further acknowledges and agrees that
the remedy at law available for any such breach would be inadequate and that
damages flowing from such a breach may not readily be susceptible to being
measured or ascertained in monetary terms. Accordingly, each of Buyer and the
Stockholders acknowledges, consents and agrees that, in addition to any other
rights or remedies which the other party may have at law, in equity or under any
agreement (including, without limitation, the Purchase Agreement), the other
party, without proof of actual damage, will be entitled to immediate injunctive
relief and may obtain a temporary or permanent injunction or order restraining
any threatened or further breach.
(b) Each of Buyer and the Stockholders acknowledges and agrees
that the provisions of this Agreement are necessary and reasonable to protect
the other party in the conduct of its business, client relationships, goodwill
and confidential and proprietary information.
4. Severability and Judicial Reformation/Partial Enforcement. Each
term, provision, covenant and restriction in this Agreement is intended to be
severable. If a court of competent jurisdiction shall determine that any term,
provision, covenant or restriction of this Agreement is overbroad, unreasonable,
invalid, void, unenforceable or against public policy, then, (a) if such term,
provision, covenant or restriction is found to be overbroad, unreasonable,
invalid, void, unenforceable or against public policy because of the duration,
scope of activities restricted, or geographic scope set forth in this Agreement,
or for any other reason, the parties hereto agree that the duration, scope of
activities restricted, or geographical scope, as the case may be, or any other
provision hereof, shall be reduced, reformed or modified (and enforced as so
reduced, reformed or modified) so that such term, provision, covenant and
restriction is enforceable and enforced to the maximum extent permitted by
applicable law; and (b) the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
5. Entire Agreement. This Agreement (together with the Purchase
Agreement), contains the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements, written or oral,
with respect thereto.
6. Waivers and Amendments.
(a) This Agreement may be amended, modified, superseded,
canceled, renewed or extended, and the terms and conditions hereof may be
waived, only by a written instrument signed by Buyer and the Stockholders, or,
in the case of a waiver, by the party waiving compliance.
(b) No delay on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
waiver on the part of any party of any right, power or privilege hereunder, nor
any single or partial exercise of any right, power or privilege hereunder,
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder.
(c) The failure to enforce, at any time, any of the provisions
of this
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Agreement or to require, at any time, the performance by the other party of any
of the provisions hereof shall in no way be construed to be a waiver of such
provisions or to affect the validity of this Agreement, or any part hereof, or
the right of any party thereafter to enforce each and every such provision in
accordance with the terms of this Agreement.
7. Governing Law. This Agreement shall be governed by, construed under
and enforced in accordance with the internal laws of the Province of Ontario,
without regard to any conflict of law principles.
8. Consent to Jurisdiction; Waiver of Jury Trial.
(a) The parties agree that jurisdiction and venue in any
action brought by any party pursuant to this Agreement shall lie exclusively in
any federal or state court located in the Province of Ontario. By execution and
delivery of this agreement, each party irrevocably submits to the exclusive
jurisdiction of such courts for itself and in respect of its property with
respect to such action. The parties irrevocably agree that venue would be proper
in such court, and hereby waive any objection that such court is an improper or
inconvenient forum for the resolution of such action. The parties further agree
that the mailing by certified or registered mail, return receipt requested, of
any process required by any such court shall constitute valid and lawful service
of process against them, without necessity for service by any other means
provided by statute or rule of court.
(b) Each of the parties hereto hereby waives to the fullest
extent permitted by applicable law any right it may have to a trial by jury with
respect to any litigation directly or indirectly arising out of, under or in
connection with this agreement or the transactions contemplated by this
agreement. Each of the parties hereto hereby (1) certifies that no
representative, agent or attorney of the other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek
to enforce the foregoing waiver and (2) acknowledges that it has been induced to
enter into this agreement and the transactions contemplated by this agreement,
as applicable, by, among other things, the mutual waivers and certifications in
this Section 8(b).
9. Successors and Assigns. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement may be assigned, in whole
or in part, by operation of law or otherwise by the parties hereto. Any
assignment in violation of the preceding sentence will be void. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit
of, and be enforceable by, the parties and their respective successors and
assigns.
10. Headings. The headings in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
11. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but both of which
together shall constitute one and the same instrument.
[Remainder of this page intentionally left blank. Signature Page Follows.]
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IN WITNESS WHEREOF, this Agreement has been executed as of the day and year
first above written.
BUYER:
INTERNATIONAL FRANCHISE CORP.
By: ("Signed" Aaron Serruya)
-----------------------------
Name: Aaron Serruya
Title: President
STOCKHOLDERS:
COOLBRANDS INTERNATIONAL INC.
By: ("Signed" David J. Stein)
-----------------------------
Name: David J. Stein
Title: President
INTEGRATED BRANDS INC.
By: ("Signed" Gary P. Stevens)
-----------------------------
Name: Gary P. Stevens
Title: President
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SCHEDULE A
CERTAIN AGREEMENTS
------------------
The agreements listed below, copies of which are attached hereto, are being
provided to Buyer on a confidential basis and solely for the purposes described
in the Noncompetition and Nonsolicitation Agreement. None of the agreement nor
their contents may be disclosed to any person or entity without the prior
written consent of the Stockholders, and such agreements or information related
thereto may not be used for any other purpose.
[REDACTED]
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