EXHIBIT 2.2
COVENANT NOT TO COMPETE
This covenant not to compete (this "Covenant") is made by Provo
International, Inc. and Xxxxx Xxxxxxxx, jointly and severally, pursuant to the
Purchase And Sale Agreement (the "PSA") dated December ___, 2004, by and between
Provo International, Inc. (the "Seller"), as the seller, a Delaware corporation,
and RFC Telecom Holdings, LLC (the "Buyer"), as the buyer, a Delaware limited
liability company, witnesseth:
Whereas, Xxxxx Xxxxxxxx is an owner and officer of the Seller, and as such,
he will benefit by the completion of the transactions contemplated by the PSA;
Whereas, it is a condition precedent to the obligations of the Buyer to
close the transactions contemplated by the PSA that the Seller and Xxxxx
Xxxxxxxx enter into this covenant not to compete.
Now therefore, for an in consideration of the foregoing recitals and for
other good and valuable consideration (the receipt and sufficiency of which are
hereby acknowledged), the the Seller and Xxxxx Xxxxxxxx jointly and severally
agree and covenant with the Buyer and its affiliates (including, without
limitation, CyberTrails, LLC and ISP I, LLC, each a Delaware limited liability
company) as follows:
1. Neither the Seller nor Xxxxx Xxxxxxxx will directly or indirectly
compete with the Buyer and/or its affiliates insofar as not directly or
indirectly owning, engaging in, working for, operating, or managing any business
that is the same or similar to the Business (as defined in the PSA) within the
states of New York, New Jersey, Washington, D.C., Delaware, Maryland,
Pennsylvania, and Virginia or soliciting any business from any person that is a
customer of the Seller as of immediately prior to the Closing (as defined in the
PSA). This covenant will have a term of, and be in force for a period of, two
(2) years from the Closing.
2. Notwithstanding anything to the contrary herein, this Covenant Not To
Compete is not applicable to Web hosting and dedicated services.
3. The Buyer and its affiliates (including, without limitation,
CyberTrails, LLC and ISP I, LLC) will suffer damages, which may be difficult to
evidence and determine, and are entitled to obtain a temporary restraining order
and an injunction with respect to any breach or threatened breach of any of the
provisions of this Covenant Not To Compete, without posting bond and without
proving actual damages. In the event of any breach or threatened breach of this
Covenant Not To Compete, the Seller and Xxxxx Xxxxxxxx, jointly and severally,
will pay all costs and expenses (including, without limitation, reasonable
attorney fees, court costs, costs of depositions, expert witness fees, and
surety bond premiums) incurred by the Buyer or any such affiliate with respect
to enforcing this Covenant Not To Compete, including (without limitation) with
respect to obtaining any such order or injunction.
4. If any provision of this Covenant Not To Compete is invalid, illegal, or
unenforceable under any circumstance (including, without limitation, all
circumstances), then, with respect to such circumstance, such provision will be
deemed to be modified as necessary to render such provision valid, legal, and
enforceable.
5. This Covent Not To Compete may not be amended or modified and no
obligation or condition provided for in this Covenant Not To Compete may be
waived, or released except by a writing signed by the party against whom such
amendment, modification, waiver, or release is sought to be enforced.
6. This Covenant Not To Compete is for the benefit of each of the Buyer and
its affiliates, including (without limitation) CyberTrails, LLC and ISP I, LLC,
and may be enforced by the Buyer or any such affiliate in its own name without
the joinder of any other person.
7. This Covenant Not To Compete will be governed by and construed in
accordance with the laws of the State of New York.
8. This Covenant Not To Compete will be binding upon the Seller and Xxxx
Xxxxxxxx, and each of their respective heirs, personal representatives,
successors, and assigns (as is applicable) and will enure to the benefit of the
Buyer, each of its affiliates, and each of their respective successors and
assigns.
PROVO INTERNATIONAL, INC.
By: ______________________________ _______________________________
Xxxxx Xxxxxxxx
Title: ____________________________
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STATE OF ______________________ )
) ss.
County of _____________________ )
The foregoing instrument was acknowledged before me on December ___, 2004,
by ____________________, as _________________________ of Provo International,
Inc. and by Xxxxx Xxxxxxxx.
Witness my hand and official seal.
_________________________
Notary Public
My commission expires: ____________________
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