EXHIBIT 2.3
NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
THIS NON-COMPETITION AND CONFIDENTIALITY AGREEMENT ("Agreement") is entered
into as of this ___ day of November, 2001, by and between Xxxx Xxxxxxx
("Seller"), Achieve Networks, Inc., a Nevada corporation ("Company"), and
Pipeline Technologies, Inc., a Colorado corporation ("Buyer").
RECITALS
A. Pursuant to that certain Share Exchange Agreement dated as of September
27, 2001, as amended ("Purchase Agreement"), by and among Buyer, Company and
certain shareholders of the Company, the Buyer is purchasing more than 81% of
the outstanding common stock of the Company. Seller is one of the selling
shareholders;
B. Section 5.1 of the Purchase Agreement provides that at Closing Seller
shall execute and deliver a Non-competition and Confidentiality Agreement
substantially in the form hereof;
C. The Company is engaged in, among other things, the business of providing
long distance telephone calls over the internet and operating a voice over
internet protocol network (the "Business");
D. Following the purchase of common stock contemplated in the Purchase
Agreement, the Buyer will continue to operate the Business, which is highly
competitive; and
E. Buyer, in purchasing the common stock of Seller, is acquiring the
Confidential Information (defined below), as defined herein, of the Company and
intends to use that information in the Business and Buyer desires, in order to
ensure the success of its investment, that it be protected from the use or
disclosure of the Confidential Information by Seller and from direct or indirect
competition from Seller for a reasonable period of time and within a reasonable
geographic area.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises made herein and the
mutual benefits to be derived from this Agreement and the Purchase Agreement,
Seller, Company and Buyer hereby agree as follows:
1. Confidential Information.
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1.1. Defined.
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"Confidential Information" shall mean ideas, information, knowledge
and discoveries, whether or not patentable, that are not generally
known in the trade or industry and about which any Seller has
knowledge as a result of his participation in, and beneficial
ownership of, the Company, including but not limited to, Trade Rights,
product specifications, manufacturing procedures, methods, equipment,
compositions, technology, business plans, marketing plans, cost and
pricing information, internal memoranda, formula, and development
programs, sales methods, customer lists, mailing lists, customer
usages and requirements, computer programs and other confidential
technical or business information and data. Confidential Information
shall not include any information which is in the public domain by
means other than disclosure by a Seller.
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1.2. Trade Rights.
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As used herein, "Trade Rights" shall mean and include: (i) all
trademark rights, business identifiers, trade dress, service marks,
trade names and brand names, all registrations thereof and
applications therefor and all goodwill associated with the foregoing;
(ii) all copyrights, copyright registrations and copyright
applications, and all other rights associated with the foregoing and
the underlying works of authorship; (iii) all patents and patent
applications, and all international proprietary rights associated
therewith; (iv) all contracts or agreements granting any right, title,
license or privilege under the intellectual property rights of any
third party; (v) all inventions, mask works and mask work
registrations, know-how, discoveries, improvements, designs, trade
secrets, shop and royalty rights, employee covenants and agreements
respecting intellectual property and non-competition and all other
types of intellectual property; and (vi) all claims for infringement
or breach of any of the foregoing.
1.3. Nondisclosure.
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Seller will keep confidential and protect all Confidential Information
known to or in the possession of Seller, and will not at any time
subsequent to the Closing, except as explicitly requested by Buyer,
(i) use for any purpose, (ii) disclose to any person, or (iii) keep or
make copies of documents, tapes, discs or programs containing, any
Confidential Information concerning Company. Nothing in this Agreement
modifies or reduces Seller's obligation to comply with applicable laws
relating to trade secrets, Confidential Information or unfair
competition.
2. Restrictive Covenants.
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2.1. Competitor.
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The term "Competitor" means any person (including Seller as sole
proprietor), entity, corporation, partnership, association, joint
venture or other organization that engages in or attempts to engage in
the Business.
2.2. Covenant Not to Compete.
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For a period of Three (3) years from the Closing Date, Seller
covenants and agrees that he will not directly or indirectly:
a. engage in, continue in or carry on any business which
competes with the Business or is substantially similar thereto,
including owning or controlling any financial interest in any
Competitor;
b. consult with, advise or assist in any way, whether or not
for consideration, any corporation, partnership, firm or other
business organization which is now or becomes a Competitor of
Company or Buyer in any aspect with respect to the Business,
including, but not limited to, advertising or otherwise endorsing
the products of any Competitor; soliciting customers or otherwise
serving as an intermediary for any such competitor; loaning money
or rendering any other form of financial assistance to or
engaging in any form of business transaction with any Competitor;
c. for a period of three (3) years , offer employment to a
person who is or was employed by the Company during the then
immediately preceding twelve (12) months, or assist any other
person or entity in offering employment to a person who is or was
employed by the Company during the then immediately preceding
twelve (12) months, without the prior written consent of Buyer;
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d. for a period of three (3) years, undertake any business
with or solicit the business of any person, firm or company who
shall have been a customer of the Company and with whom any
executive of Company or his subordinates has dealt with during
the then immediately preceding twelve (12) months which might
affect the Company's business relationship with such customer (if
the Company reasonably determines that such activities will not
adversely affect its business relationship with its customer and
such activities do not otherwise violate the covenants not to
compete contained herein, the Company shall provide to Sellers
its written consent to such activities); or
e. engage in any practice the purpose of which is to evade
the provisions of this covenant not to compete or to commit any
act which adversely affects the Business;
provided, however, that the foregoing will not prohibit the ownership
of securities of corporations which are listed on a national
securities exchange or traded in the national over-the-counter market
in an amount which does not exceed 5% of the outstanding shares of any
such corporation. The geographic scope of the covenant not to compete
shall extend to each state, country or province that Company is
currently engaged in the Business or anticipates engaging in the
Business in the subsequent twelve (12) months. Recognizing the
specialized nature of the Business and the scope of the competition
that Company and Buyer face, Seller hereby acknowledges that the
geographic scope and duration of this covenant not to compete is
reasonable.
3. Reserved.
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4. Other Provisions.
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4.1. Recitals.
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Seller acknowledges and agrees that the recitals set forth at the
beginning of this Agreement are true and correct and constitute a part
of this Agreement.
4.2. Remedies.
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Seller agrees that the provisions and restrictions contained in this
Agreement are necessary to protect the legitimate continuing interests
of Buyer in acquiring the common stock of the Company, and that any
violation or breach of those provisions will result in irreparable
injury to Buyer for which a remedy at law would be inadequate and
that, in addition to any relief at law which may be available to Buyer
for such violation or breach and regardless of any other provision
contained in the Purchase Agreement or this Agreement, Buyer shall be
entitled to injunctive and other equitable relief as a court may grant
after considering the intent of this Agreement.
4.3. Waivers.
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No failure on the part of Buyer or Company to object to or complain of
any breach or default by Seller or to take any other action with
respect thereto, irrespective of how long such failure may continue,
shall constitute or be deemed a waiver of that or of any other breach
or default. No waiver by Buyer or Company of any breach or default on
the part of Seller shall be effective unless set forth in writing and
executed by Buyer and Company, and any such waiver shall operate only
as a waiver of the particular breach or default specified in such
written waiver and shall not be effective as a waiver of any other
subsequent breach or default on the part of Sellers.
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4.4. Assignment.
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This Agreement is made for and inures to the benefit of Buyer and
Company and is binding upon Seller and, to the extent necessary to
enforce the provisions hereof, each Seller's heirs, personal
representatives, successors and assigns. Subject to the foregoing
sentence, Seller may not assign any of his obligations hereunder.
Buyer may sell, assign or otherwise transfer the covenant not to
compete, in whole or in part, to any person, corporation, firm or
entity that purchases all or part of the business of the Company.
4.5. Notices.
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All notices, requests, demands and other communications hereunder
shall be given in writing and shall be: (a) personally delivered; (b)
sent by telecopier, facsimile transmission or other electronic means
of transmitting written documents; or (c) sent to the parties at their
respective addresses indicated herein by registered or certified U.S.
mail, return receipt requested and postage prepaid, or by private
overnight mail courier service. The respective addresses to be used
for all such notices, demands or requests are as follows:
a. If to Buyer or Company, to:
PIPELINE TECHNOLOGIES, INC.
0000 Xxxxx Xxxxxx, Xxxxx Xxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, President
Facsimile: (000) 000-0000
(with a copy to)
Xxxxx & Lardner
000 Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
or to such other person or address as Buyer shall furnish
to Seller.
b. If to Seller:
Xxxx X. Xxxxxxx
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention:______________
Facsimile:______________
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(with a copy to)
Achieve Networks, Inc.
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: President
Facsimile: ____________
or to such other person or address as the Seller shall
designate as a successor.
If personally delivered, such communication shall be deemed delivered
upon actual receipt; if electronically transmitted pursuant to this
paragraph, such communication shall be deemed delivered the next business
day after transmission (and sender shall bear the burden of proof of
delivery); if sent by overnight courier pursuant to this paragraph, such
communication shall be deemed delivered upon receipt; and if sent by U.S.
mail pursuant to this paragraph, such communication shall be deemed
delivered as of the date of delivery indicated on the receipt issued by the
relevant postal service, or, if the addressee fails or refuses to accept
delivery, as of the date of such failure or refusal. Any party to this
Agreement may change its address for the purposes of this Agreement by
giving notice thereof in accordance with this Section.
4.6. Captions.
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All headings and captions are for convenience of reference only and
are not a part of this Agreement, and shall have no effect on the
construction or interpretation of this Agreement or any paragraph,
subparagraph, clause, or provisions hereof.
4.7. Agreement Cumulative.
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This Agreement and the provisions hereof are cumulative and in
addition to any other agreements made or to be made by Seller with or
for the benefit of Buyer and Company, with respect to the subject
matter hereof, and shall not be or be deemed to be terminated,
modified or affected in any way, or to terminate, modify or affect in
any way, any such other agreements, including the Employment Agreement
by and between Seller and the Company of even date herewith.
4.8. Governing Law.
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This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida, without regard to its choice of law
rules.
4.9. Severability.
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In the event a court of competent jurisdiction determines that the
provisions of the covenant not to compete are excessively broad as to
duration, geographical scope or activity, it is expressly agreed that
the covenant not to compete will be construed so that the remaining
provisions will not be affected, but will remain in full force and
effect, and any such over broad provisions will be deemed, without
further action on the part of any person, to be modified, amended
and/or limited, but only to the extent necessary to render the same
valid and enforceable in such jurisdiction.
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IN WITNESS WHEREOF, Seller, Company and Buyer have executed and delivered
this Agreement on the date first written above.
"BUYER"
PIPELINE TECHNOLOGIES, INC.
By:
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Name:
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Title:
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"COMPANY"
ACHIEVE NETWORKS, INC., a
Nevada corporation
By:
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Name:
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Title:
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"SELLER"
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Xxxx Xxxxxxx
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