EXHIBIT 10.3
NONCOMPETITION AGREEMENT
THIS
NONCOMPETITION AGREEMENT (this "Agreement") is entered into as of
the
26th day of April, 2005, by and between RMK
HOLDINGS, LLC, a Delaware limited
liability company ("RMK"), and RCG
COMPANIES INCORPORATED, a Delaware
corporation ("RCG").
Statement of Purpose
RMK,
Logisoft Corp., a wholly-owned subsidiary of RCG ("Logisoft"),
and
eStorefronts.net Corp., a wholly-owned
subsidiary of Logisoft (together with
Logisoft, "Sellers"), have entered into
that certain Asset Purchase Agreement,
dated April 26, 2005 (the "Asset Purchase
Agreement"), pursuant to which Sellers
are selling to RMK, or its affiliate,
certain items of inventory, intellectual
property, customer list, contracts,
equipment and other assets used in Sellers'
business, as presently conducted, which
consists of reselling computer software
and hardware, sales, design, hosting and
maintenance of internet and intranet
websites, information technology consulting
and ecommerce software development
and consulting (the "Business"). In order
to protect the RMK's legitimate
business interests, as a condition to and
as further consideration for RMK
entering into the Asset Purchase Agreement,
RCG has agreed to enter into this
Agreement.
NOW,
THEREFORE, in consideration of the foregoing Statement of Purpose
and
the mutual promises contained herein, the
parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS
Capitalized terms used herein shall have the meanings set forth in
Annex
A.
ARTICLE 2.
NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
2.1
Acknowledgments by the RCG. RCG acknowledges that (a) as a result
of
its ownership of Logisoft, RCG possesses
Confidential Information; (b) public
disclosure of such Confidential Information
could have an adverse effect on RMK
and its business; and (c) the provisions of
this Article 2 are reasonable and
necessary to prevent the improper use or
disclosure of Confidential Information.
2.2
Agreements of RCG. In consideration of the foregoing and the
Statement
of Purpose other good and valuable
consideration, RCG covenants as follows:
(a) Confidentiality.
(i) RCG shall hold in confidence all Confidential Information
and shall not disclose Confidential
Information to any Person or use
Confidential Information in any way
whatsoever, except as otherwise expressly
permitted by the terms of this Agreement or
as
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(ii) required by law. This Section 2.2(a)(i) shall not be
construed as preventing RCG from using its
general skills, knowledge and
expertise so long as RCG does so without
using or disclosing Confidential
Information.
(iii) Any trade secrets of RMK or the Business shall be
entitled to all of the protections and
benefits under the North Carolina Trade
Secrets Protection Act, N.C. Gen. Stat. ss.
66-152 et seq. and any other
applicable law. If any information that RMK
deems to be a trade secret is found
by a court of competent jurisdiction not to
be a trade secret for purposes of
this Agreement, such information may,
nevertheless, be considered Confidential
Information for purposes of this Agreement.
RCG hereby waives any requirement
that RMK submit proof of the economic value
of any trade secret or post a bond
or other security.
(iv) None of the foregoing obligations and restrictions
applies to any part of Confidential
Information that is or becomes generally
available to the public other than as a
result of a disclosure or use by RCG or
unlawful use or disclosure by some other
Person or that is required to be
disclosed by RCG by law or by a court of
competent jurisdiction.
2.3
Disputes or Controversies. RCG recognizes that should a dispute
or
controversy arising from or relating to
this Agreement be submitted for
adjudication to any court, arbitration
panel or other third party, the
preservation of the secrecy of Confidential
Information may be jeopardized. All
pleadings, documents, testimony and records
relating to any such adjudication
shall be maintained in secrecy and shall be
available for inspection by RMK,
RCG, and their respective attorneys and
experts, who shall agree, in advance and
in writing, to receive and maintain all
such information in secrecy, except as
may be limited by them in writing.
ARTICLE 3.
NON-COMPETITION AND NON-INTERFERENCE
3.1
Acknowledgments by RCG. RCG acknowledges that (a) it has great
familiarity with and expertise relating to
the Business, having owned Logisoft
for many years, (b) upon the closing of the
transactions contemplated by the
Asset Purchase Agreement, RMK and the
Business will compete with other
businesses that are or could be located in
any part of the states of (1) New
York, (2) New Jersey, (3) Connecticut, (4)
Pennsylvania, (5) Massachusetts, (6)
Vermont (7) Maryland or (8) North Carolina
(the "Restricted Area"), and (c) the
provisions of this Article 3 are reasonable
and necessary to protect RMK's
legitimate business interests.
3.2
Covenants of RCG. In consideration of the acknowledgments by RCG,
the
Statement of Purpose and the terms and
conditions of the Asset Purchase
Agreement, RCG covenants that it will not,
directly or indirectly:
(a) at any time
during the Restricted Period, engage or invest in,
own, manage, operate, finance, control or
participate in the ownership,
management, operation, financing or control
of, be employed by, lend RCG's name
or any similar name to, lend RCG's credit
to, render services or advice to, any
business or Person whose products, services
or activities compete in whole or in
part with the products produced or
activities conducted by RMK or any of its
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affiliates with respect to the Business
(each a "Competitor"), in each case in
the Restricted Area; provided, however,
that RCG may purchase or otherwise
acquire up to (but not more than) 5% of any
class of securities of any
enterprise (but without otherwise
participating in the activities of such
enterprise) if such securities are listed
on any national or regional securities
exchange or have been registered under
Section 12(g) of the Securities Exchange
Act of 1934;
(b) at any time during the Restricted Period, solicit business
of
the same or similar type being carried on
by RMK solely with respect to the
Business from any Person known by RCG to be
a customer of RMK with respect to
the Business within the Restricted
Area;
(c) whether for RCG's own account or the account of any other
Person
(i) at any time during the Restricted
Period, solicit, employ or otherwise
engage as an employee, independent
contractor or otherwise, any Person who is or
was an employee of RMK during the six-month
period prior to engagement by RCG or
in any manner induce or attempt to induce
any employee of RMK to terminate his
employment with RMK; or (ii) at any time
during the Restricted Period, knowingly
interfere with RMK's relationship with any
Person, including any Person who is
or was an employee, contractor, supplier or
customer of RMK with respect to the
Business, in each case in the Restricted
Area; or
(d) at any time during the Restricted Period, disparage RMK or
any
of its members, managers, officers,
employees or agents.
(e) Nothing contained in this Article 3 shall be construed to
prevent RCG from maintaining or hosting
internet or intranet websites relating
to the sales of travel or leisure services
if such activities do not otherwise
violate the terms of this Agreement.
(f) For purposes of this Section 3.2, the term "Restricted
Period"
means the period beginning
