exv10w4



 





Exhibit 10.4




NON-COMPETITION AGREEMENT




          THIS
NONCOMPETITION AGREEMENT (this “Agreement”), dated as of March 3,
2004, is entered into by and among Ask Jeeves, Inc., a Delaware corporation
(“Acquiror”), and    , the undersigned individual stockholder
(“Holder”) of Interactive Search Holdings, Inc., a Delaware corporation
(“Holder”).



BACKGROUND




          A. Acquiror, Holder, Aqua Acquisition Corp., a Delaware corporation and
wholly owned subsidiary of Acquiror (“Merger Sub”) and Aqua Holdings LLC, a
single member Delaware limited liability company wholly owned by Acquiror (the
“LLC”), have entered into that certain Merger Agreement dated March 3, 2004
(the “Merger Agreement”), pursuant to which Indigo,
Inc. (“Target”) merged
substantially all of its assets (the “Merger”) with Acquiror.



          B. Holder owns a substantial portion of the outstanding capital stock (the
“Stock”) of Target, and as a result of the Merger, Holder received an ownership
interest in Acquiror (capitalized terms used but not otherwise defined herein
shall have the meanings given such terms in the Merger Agreement).



          C. Holder
previously served as the        of Target.



          D. Holder
is a resident of the State of
        and with primary
offices based in Irvington, New York.



          E. Acquiror, after giving effect to the Merger, is engaged in the business
of information retrieval and providing web wide search.



          F. After giving effect to the Merger, Holder will be a key executive
officer of the Acquiror.



          G. In consideration for Holder receiving the consideration described in
Section 1.6 of the Merger Agreement, and to protect the goodwill of the
business purchased by Acquiror in connection with the Merger Agreement, and as
an inducement for Acquiror to enter into the Merger Agreement and to merge all
of the assets of Target, Holder has agreed to enter into this Agreement.



AGREEMENT




          In consideration of the mutual representations, warranties and covenants
contained herein, and upon and subject to the terms and the conditions
hereinafter set forth, the parties do hereby agree as follows:



          1. Agreement Not to Compete. The parties acknowledge that Holder has
acquired significant knowledge and information concerning the business of
Target, which will be the business of the Acquiror after giving effect to the
Merger and that such business is very



S-1









 




competitive. The parties acknowledge that Target is presently doing
business in each of the various States within, and territories of, the United
States and in each of the countries as listed on Exhibit A hereto
(collectively, the “Covered Area”). Competition by Holder with the business of
Acquiror after consummation of the transactions contemplated by the Merger
Agreement would severely injure the business of the Acquiror and impair the
goodwill being purchased by Acquiror. Accordingly, Holder agrees that he shall
not, for a period of two (2) years from the date of the Closing (the
“Non-Compete Period”), compete with the business of Acquiror, by engaging,
directly or indirectly, in the Covered Business (as defined below) within the
Covered Area. In addition, Holder agrees that while an employee or consultant
of Acquiror, Holder shall not compete with any new business that is outside the
scope of the Covered Business engaged in by Acquiror or any of its subsidiaries
after the date hereof.




          2. Definitions. For purposes of this Agreement, (i) “Covered Business”
means business that Target is currently involved in during the one-year period
preceding the date of this Agreement, including but not limited to toolbar
distribution, on-line search, on-line advertising, portal services, and on-line
advertising representation (ii) the phrase “engaging,
directly or indirectly”
means engaging or having an interest in, directly or indirectly, as owner,
partner, participant of a joint venture, trustee, proprietor, shareholder,
member, manager, director, officer, employee, independent contractor, capital
investor, lender, consultant, advisor or similar capacity, or by lending or
allowing his name or reputation to be used in connection with, or otherwise
participating in or allowing his skill, knowledge or experience to be used in
connection with, the operation, management or control of a business or
enterprise engaged in any aspect of the Covered Business, and (iii)
“within”
the Covered Area includes the sale, marketing or distribution to a person or
entity in or within, or for resale within, the Covered Area even if the service
is performed in another state, territory, jurisdiction or country or the
product sold or distributed is manufactured in or sold or shipped from another
place.



          3. Non-Solicitation. Holder agrees not to directly or indirectly,
individually or as a consultant, employee, officer, director, manager,
stockholder, partner, member, owner, advisor or participant in any business
entity, solicit or endeavor to entice away from Acquiror or any of its
subsidiaries, parent, or holding company (Acquiror and each such subsidiary,
parent or holding company are collectively referred to herein as the “Related
Companies” and each individually as a “Related
Acquiror”), or otherwise
materially interfere with the business relationship of any Related Acquiror
with, any person or entity who is, or was within the one year period
immediately prior to the termination of the Non-Compete Period, (a) employed by
or a consultant to any Related Acquiror, or (b) a customer or client of,
supplier to or other party having material business relations with any Related
Acquiror.



          4. Non-Solicitation of Customers. Holder agrees that, during the
Non-Compete Period, he shall not, directly or indirectly through any other
person or entity, either alone or in association with others, engage in the
Covered Business with or solicit or attempt to solicit any Covered Business
from or divert or attempt to divert away from Acquiror any business from any
currently existing customer, vendor or distributor, or those presently
identified prospective customer, vendors or distributors, of Acquiror with
respect to any product or service being furnished, made or sold by Acquiror and
related to the Covered Business, or those presently identified prospective
customers, vendors or distributors, or Acquiror with respect to



 









 




any product or service being furnished, made or sold by Acquiror and
related to the Covered Business.




          5. Permitted Activities. Nothing contained herein shall limit the right
of Holder as an investor to hold and make investments in securities of any
corporation or limited partnership that is registered on a national securities
exchange or admitted to trading privileges thereon or traded on the Nasdaq
National Market, provided Holder’s equity interest therein does not exceed 3%
of the outstanding shares or interests in such corporation or partnership and
provided that Holder does not violate Acquiror’s Insider Trading Policy. In
the event that Holder becomes involved in any activity which may be competitive
with the business of the Acquiror or any of its subsidiaries after the date
hereof that is outside the scope of the Covered Business, then Holder shall
promptly inform the Board of Directors of Acquiror (the “Board of Directors”)
of such activity, and Holder shall, if requested by the Board of Directors,
cease, withdraw, disengage or divest his interests in such activity at the
request of the Board of Directors. Holder, if a member of the Board of
Directors, shall abstain from voting on such matter.



          6. Special Remedies and Enforcement. Holder recognizes and agrees that a
breach by Holder of any of the covenants set forth in this Agreement could
cause irreparable harm to Acquiror, that the remedies at law in the event of
such breach would be inadequate, and that, accordingly, in the event of such
breach, a temporary restraining order or injunction or both may be issued
against Holder without any requirement that Acquiror post any bond or security,
in addition to any other rights and remedies which are available to Acquiror.
The Supreme Court of New York of the State of New York, New York County shall
have jurisdiction over any such action for provisional injunctive relief.



          7. Severability. The parties intend that all of the covenants contained
herein shall be deemed to be separate covenants as to each state, territory,
jurisdiction and country and that if in any judicial proceeding a court shall
refuse to enforce all of the separate covenants included herein because, taken
together, they cover too extensive a geographic area or because any one
includes too large an area or because they cover too long a period of time or
because they cover too broad a range of activities, the parties intend that
such covenants shall be reduced in scope to the extent required by law, or, if
necessary, eliminated from the provisions hereof, and that all remaining
covenants hereof not so affected shall remain fully effective and enforceable.



          8. Attorneys’ Fees. In the event of any action or proceeding by any party
arising out of or relating to this Agreement, including without limitation, for
the breach of this Agreement, the prevailing party shall be entitled to
reasonable attorneys’ fees (including experts’ fees), costs and expenses
incurred in such action or proceeding. Attorneys’ fees incurred in enforcing
any judgment in respect of this Agreement are recoverable as a separate item.
The preceding sentence is intended to be severable from the other provisions of
this Agreement and to survive any judgment and, to the maximum extent permitted
by law, shall not be deemed merged into such judgment.



          9. Amendment. This Agreement may be amended by Acquiror and Holder by an
instrument in writing signed by, or on behalf of, each of them.



 









 





          10. Entire Agreement. This Agreement (including the Appendices)
constitutes the sole understanding of the parties with respect to the subject
matter hereof, except that nothing in this Agreement alters any obligations by
Holder pursuant to any Employment Agreement between Holder and Acquiror or
Related Acquiror.



          11. Counterparts. This Agreement may be executed in two or more
counterparts (including facsimile versions), each of which shall for all
purposes be deemed to be an original and all of which shall constitute the same
instrument.



          12. Headings. The headings of the Sections and paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.



          13. Waiver. Any of the terms or conditions of this Agreement may be
waived in writing at any time by the party which is entitled to the benefits
thereof. No waiver of any of the provisions of this Agreement shall be deemed
to or shall constitute a waiver of any other provision hereof (whether or not
similar).



          14. Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of New York without giving effect to the
principles of conflicts of law thereof.



          15. Notices. All notices, requests, consents and other communications
required or permitted hereunder will be in writing and will be deemed given:
(i) when delivered if delivered personally (including by courier); (ii) on the
third day after mailing, if mailed, postage prepaid, by registered or certified
mail (return receipt requested); (iii) on the day after mailing if sent by a
nationally recognized overnight delivery service which maintains records of the
time, place, and recipient of delivery; or (iv) upon receipt of a confirmed
transmission, if sent by telecopy or facsimile transmission, in each case to
the parties at the following addresses:



	 	 	 
	

	 	(a) if to Holder, to:
	 
	 	 
	

	 	Facsimile No.:
	

	 	Telephone No.:
	 
	 	 
	

	 	with a copy to:
	 
	 	 
	 

	 	

	

	 	Attention:
	

	 	Facsimile No.:
	 
	 	 
	

	 	(b) if to Acquiror, to:







 









 






	 	 	 
	

	 	Ask Jeeves, Inc.
	

	 	5858 Horton Street, Suite 350
	

	 	Emeryville, CA 94608
	

	 	Attention: General Counsel
	

	 	Facsimile No.: (510) 985-7507
	

	 	Telephone No.: (510) 985-8100
	 
	 	 
	

	 	with a copy to:
	 
	 	 
	

	 	O’Melveny & Myers LLP
	

	 	2765 Sand Hill Road
	

	 	Menlo Park, CA 94025
	

	 	Attention: Karen Dreyfus
	

	 	Facsimile No.: (650) 473-2601
	

	 	Telephone No.: (650) 473-2600






or to such other person or address as a party may designate in writing.




          IN WITNESS WHEREOF, the parties hereto have executed this Non-competition
Agreement as of the day and year first written above.



	 	 	 	 	 
	 	 	ASK JEEVES, INC.
	 	 	a Delaware Corporation
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	
 
	

	 	Name:	 	 
	

	 	 	 	
 
	

	 	Title:	 	 
	

	 	 	 	
 
	

	 	 	 	,
	 	 	
 
	 	 	an individual
	 
	 	 	 	 
	 	 	
 







 









 






EXHIBIT A




Covered Area



States and Territories of the United States



Each State of the United States and each Territory of the United States



Countries




UK

Europe

Japan