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NON-COMPETITION AGREEMENT
This Agreement is made and entered into this 1st day of November,
1994, by and among MASADA SECURITY, INC., a Delaware corporation ("Masada") and
Xxxxxxx X. Xxxxxxx, an individual resident of the State of Texas ("X.
Xxxxxxx").
RECITALS
Pursuant to the terms of an Asset Purchase Agreement dated as of the
27th day of October, 1994 (the "Purchase Agreement"), Masada is purchasing
certain of the assets and properties of Kenmar Electronics, Inc. ("Seller").
X. Xxxxxxx is uniquely experienced in the development and operation of
the security alarm system business, and masada is unwilling to acquire the
assets referenced in the Purchase Agreement without first obtaining the
agreement of X. Xxxxxxx not to compete with Masada's business.
As an inducement to the consummation of the transactions evidenced by
the Purchase Agreement, X. Xxxxxxx is willing to issue this Non-Completion
Agreement to Masada and acknowledges that valuable direct consideration will be
paid to him as a result of his execution and delivery of this Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto in consideration of the mutual covenants,
agreements and specific consideration set forth below, the sufficiency and
adequacy of which is hereby acknowledged, and intending to be legally bound,
agree as follows:
SECTION 1. NON-COMPETE COVENANT. For the five (5) year period
beginning on the date hereof, X. Xxxxxxx shall not in any manner, directly or
indirectly, through any corporation, partnership, or any other entity, solicit
any person or entity set forth on Schedule 1(a) to the Purchase Agreement,
which solicitation is for the purpose of providing security monitoring services
to such person or entity, if such solicitation would adversely affect Masada's
interest in the Contracts (as such term is defined in the Purchase Agreement)
purchased from Seller. Furthermore, during said five (5) year period, X.
Xxxxxxx shall not in any manner, directly or indirectly, through any
corporation, partnership, or any other entity, use, communicate, inform, or
otherwise divulge to any third party any information pertaining to the persons
and entities set forth on Schedule 1(a) to the Purchase Agreement, which use,
communication, information, or divulgence would adversely affect Masada's
interest in the Contracts. Provided, however, that X. Xxxxxxx shall be
permitted to establish or maintain an on-going relationship with Alarm
Processing Corporation, which corporation now provides or may in the future
provide wholesale monitoring services to multiple Alarm Dealers (defined as
professional alarm dealers which now have or may in the future have contracts
with Alarm Processing Corporation for the rendering of wholesale alarm
monitoring services, and which are licensed by the State of Texas or other
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appropriate regulatory agency to operate as an Alarm Services Contractor or
Fire Alarm Company, as further defined by state or other regulatory statutes).
Additionally, it shall not be a violation of this covenant for X. Xxxxxxx or
any related person, firm, or entity to render performance necessary to comply
with any provision of or schedule attached to the Purchase Agreement.
SECTION 2. CONSIDERATION. X. Xxxxxxx acknowledges that
sufficient and adequate consideration has been paid to him for the execution
and delivery to Masada of this Agreement.
SECTION 3. REMEDIES FOR BREACH. X. Xxxxxxx recognized that in
the event of a breach of the covenants herein contained, it will be difficult
to determine the damages which would be suffered by Masada, and therefore, X.
Xxxxxxx agrees and acknowledges that Masada may obtain injunctive relief to
prevent further breaches of the covenants herein contained, in addition to
provable damages. It is specifically understood that in the event of
litigation arising from a breach of the covenants herein contained, Masada
shall be entitled to recover in addition to damages and injunctive relief, all
costs incurred, including reasonable attorneys' fees.
SECTION 4. PARTIAL INVALIDITY. In the event any provision or
portion of this Agreement is deemed to be invalid or unenforceable in whole or
in part for any reason, the remainder thereof shall not be invalidated or
rendered unenforceable or otherwise adversely affected. Without limiting the
generality of the foregoing, if the provisions of the covenant not to compete
shall be deemed to create a restriction which is unreasonable as to duration or
geographical area or both, the parties agree that the provisions of this
Agreement shall be enforced for such duration and in such geographical area as
any court of any competent jurisdiction may determine to be reasonable.
SECTION 5. SUCCESSORS AND ASSIGNS. X. Xxxxxxx acknowledges that
the covenants contained herein are unique and personal, and that X. Xxxxxxx may
not assign any of his rights or delegate any of his duties or obligations under
this Agreement. The rights and obligations of Masada under this Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
Masada.
SECTION 6. NOTICES. Any notice required or permitted to be
delivered pursuant to the terms of this Agreement shall be considered to have
been sufficiently delivered within five (5) days after posting, if mailed by
U.S. Mail, certified or registered, return receipt requested, postage prepaid
or, upon receipt by overnight courier maintaining records of receipt by
addressee or if delivered by hand or telecopied with the original notice being
mailed the same day by one of the foregoing methods and addressed as follows:
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If to Purchaser at:
Masada Security, Inc.
000 00xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxx
With copy to:
Xxxxxx, Xxxxxx, Xxxxxx & Xxxxx P.C.
000 Xxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxx, Esq.
TELECOPY: (000) 000-0000
If to X. Xxxxxxx at:
Xxxxxxx X. Xxxxxxx
P. O. Xxx 00000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
With copy to:
Xxxxx X. Xxxxxx, Attorney at Law
0000X Xxxxx
Xxxxxxxx, Xxxxx 00000
TELECOPY: (000) 000-0000
or at such other address as the party may designate by 10 days advance written
notice to the other party. Notice shall be effective when delivered to a
responsible person at the address of the addressee.
SECTION 7. WAIVER OF BREACH. The waiver by Masada of a breach
of any provision of this Agreement by X. Xxxxxxx shall not operate or be
construed as a waiver of any subsequent breach by X. Xxxxxxx. No waiver shall
be valid unless in writing and signed by an authorized representative of
Masada.
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SECTION 8. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties, and supersedes all prior agreements, arrangements
and communications, whether oral or written, with respect to the subject matter
hereof. This Agreement shall not be modified or amended except by written
agreement signed by each of the parties hereto.
SECTION 9. GOVERNING LAW; VENUE. This Agreement shall be
governed by and construed in accordance with the laws of the State of Texas.
Any legal proceeding initiated with regard to this Agreement shall be brought
in the District Court of Xxxxxx County, Texas or in the United States District
Court for the Southern District of Texas, Houston Division.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day of year first above written.
MASADA SECURITY, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Its: President
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/s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
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Individually
