EXHIBIT 10(F)
CONFIDENTIALITY, NONCOMPETITION AND
NONSOLICITATION AGREEMENT
Confidentiality, Noncompetition and Nonsolicitation Agreement (the
"Agreement") effective as of April 27, 1998 among Guardian International, Inc.,
a Nevada corporation (the "Company"), and Xxxx Xxxxxxx ("Xxxxxxx").
RECITALS
A. The Company, Xxxxxxx Xxxxx ("Xxxxx"), Xxxxx Xxxxxx ("Xxxxxx"),
Xxxxxxx and Xxxx Xxxxx ("Xxxxx" and together with Xxxxx, Xxxxxx and Xxxxxxx, the
"Sellers") entered into a Stock Purchase Agreement (the "Stock Agreement")
effective as of April 17, 1998 pursuant to which the Company agreed to purchase
all of the outstanding common stock, $.15 par value per share (the "Common
Stock") of Precision Security Systems, Inc., a Florida corporation, from
Sellers.
X. Xxxxxxx acknowledges that he will obtain confidential and
proprietary information relating to the business of the Company as a result of
consummation of the transactions contemplated by the Stock Agreement, and
acknowledges that the covenants not to compete and confidentiality provisions in
this Agreement are reasonable.
AGREEMENT
l. CONFIDENTIALITY.
x. Xxxxxxx agrees that he will hold in a fiduciary capacity
for the benefit of the Company, and shall not, directly or indirectly, use or
disclose, except as authorized by the Company, any Confidential Information (as
defined below) that Xxxxxxx may have or acquire (whether or not developed or
compiled by Xxxxxxx and whether or not Xxxxxxx has been authorized to have
access to such Confidential Information). The term "Confidential Information" as
used in this Agreement shall mean and include any material information, data and
know-how relating to the business of the Company that is disclosed to Xxxxxxx by
the Company or known by him as a result of his relationship with the Company (or
a company acquired by the Company) and not generally within the public domain
(whether constituting a trade secret or not) including, without limitation, the
following: financial information, supply and service information, marketing
information, personnel information, customer information and information with
respect to any corporate affairs that the Company treats as confidential.
b. The term "Confidential Information" does not include
information that has become generally available to the public by the act of the
Company or by the act of one who has the right to disclose such information
without violating any right of the Company or the customer to which such
information pertains.
c. Nothing in this Section 1 shall prevent Xxxxxxx from
disclosing any Confidential Information to the extent such disclosure is
required by law or any order of a court or government authority with
jurisdiction, provided, however, that Xxxxxxx agrees to give the Company advance
written notice as soon as possible of the Confidential Information required to
be disclosed, and at the Company's request, to use his best efforts to obtain
assurances that the Confidential Information required to be disclosed will be
maintained on a confidential basis and will not be disclosed to a greater degree
than required by law.
d. These rights of the Company are in addition to those rights
the Company has under the common law or applicable statutes for the protection
of trade secrets.
2. COVENANT NOT TO COMPETE. Xxxxxxx agrees that he will not engage or
participate, directly or indirectly, in any business that competes with the
business of the Company in Dade County, Broward and Palm Beach County, Florida,
whether as an employee, employer, consultant, agent, principal, partner,
stockholder, corporate officer, director, or other representative capacity, for
a period of four (4) years after the date of this Agreement. Notwithstanding the
foregoing, Xxxxxxx may (i) hold an investment representing less than a 5%
interest in any publicly held entity engaging in a business that competes with
the business of the Company and (ii) be an employee, employer, consultant,
agent, principal, partner, stockholder, corporate officer, director or other
representative of an entity that does not engage in burglar alarm, fire alarm,
closed circuit television and electronic access and control and central
monitoring services; PROVIDED, HOWEVER, that Xxxxxxx agrees to refer customers
seeking monitoring services to Company. In the event any court shall refuse to
enforce any portion of the covenant set forth in this Section 2, then such
unenforceable portion shall be deemed eliminated and severed from said contract
for the purposes of said court's proceedings to the extent necessary to permit
the remaining portions of the covenant to be enforced.
3. NONSOLICITATION. Xxxxxxx agrees that he will not, from the date of
this Agreement and forever thereafter, for himself or on behalf of or in
conjunction with any third party solicit any employee of the Company or its
subsidiaries to leave such employment; PROVIDED, that the posting by Xxxxxxx or
any entity with which Xxxxxxx is involved of general advertisements soliciting
employees shall not constitute the solicitation of any employee of the Company
or its subsidiaries. Xxxxxxx further agrees that, from the date of this
Agreement and for an unlimited period thereafter, he will not directly or
indirectly, on his own behalf or in the service of or on behalf of others,
solicit, divert or appropriate, or attempt to solicit, divert or appropriate, to
any competing business, any customers of the Company or its subsidiaries
existing as of the date of this Agreement. If, as of the date of this Agreement,
Xxxxxxx is engaged in or associated with the planning or implementing of any
project, program or venture involving the Company and a third party or parties
(a "Venture"), or any discussions, analysis or negotiations with respect to an
investment in, merger, acquisition or purchase, directly or indirectly, of the
stock, assets, or business of any entity (an "Acquisition"), all rights in the
Venture and the Acquisition and any opportunity to make any investment in the
entity to be so acquired (the "Target") shall belong to the Company and shall
constitute a corporate opportunity belonging exclusively to the Company. Except
as approved by the Board of Directors of the Company, Xxxxxxx shall not be
entitled to any interest in any such Venture or to invest or solicit any third
party to invest in the Target or
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consummate the Acquisition, or to any commission, finder's fee or other
compensation in connection therewith. In the event any court shall refuse to
enforce any portion of the covenants set forth in this Section 3, then such
unenforceable portion shall be deemed eliminated and severed from said contract
for the purposes of said court's proceedings to the extent necessary to permit
the remaining portions of the covenant to be enforced.
4. REMEDIES. The parties acknowledge that the Company would not have an
adequate remedy at law for money damages if the covenants contained in Sections
1, 2 or 3 were not complied with in accordance with their terms. The parties
therefore agree that in the event of an anticipated breach or actual breach by
Xxxxxxx of the provisions of Sections 1, 2 or 3, the Company shall be entitled
to inform in writing all of Xxxxxxx' potential or new employers, partners,
shareholders, officers, directors or borrowers of the terms of this Agreement.
Because the breach or threatened breach of any of the covenants in Sections 1, 2
or 3 will result in immediate and irreparable injury to the Company, Xxxxxxx
agrees that the Company shall be entitled to an injunction restraining Xxxxxxx
from violating Sections 1, 2 and 3 to the fullest extent allowed by law. Xxxxxxx
covenants and agrees that if he violates any of the covenants and agreements in
Sections 1, 2 or 3, the Company shall be entitled to an accounting and repayment
of all profits, compensation, commissions, remuneration or benefits which
Xxxxxxx directly or indirectly realizes or may realize as a result of or in
connection with a violation. Nothing in this Agreement shall prohibit the
Company from pursuing all other legal or equitable remedies that may be
available to it for a breach or threatened breach, including the recovery of
damages.
5. ASSURANCES. The parties agree to execute, acknowledge, deliver and
file, or cause to be executed, acknowledged, delivered and filed, all further
instruments, agreements or documents as may be necessary to consummate the
transactions provided for in this Agreement and to do all further acts necessary
to carry out the purpose and intent of this Agreement.
6. WAIVER. No term or condition of this Agreement shall be deemed to
have been waived, nor shall there be any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charged
with the waiver or estoppel. No written waiver shall be deemed a continuing
waiver unless specifically stated therein, and each waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
the term or condition for the future or as to any act other than that
specifically waived.
7. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without reference to its
conflicts of law principles.
8. LITIGATION; PREVAILING PARTY. If litigation is brought concerning
this Agreement, the prevailing party shall be entitled to receive from the
non-prevailing party, and the non-prevailing party shall immediately pay upon
demand, all reasonable attorneys' fees and expenses for the prevailing party.
9. NOTICES. All notices and other communication required or permitted
under this Agreement shall be in writing and delivered personally or sent by
certified or registered mail,
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postage prepaid, return receipt requested (deemed delivered 5 business days
after the date sent) or by telecopy (deemed delivered on the next business day
after transmission), addressed as follows:
(a) If to the Company, to:
Guardian International, Inc.
0000 Xxxxx 00xx Xxxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxxx
with a copy to:
Xxxxxx Xxxxxxx, Esq.
Steel Xxxxxx & Xxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxxx, XX 00000-0000
(b) If to Xxxxxxx, to:
Xxxx Xxxxxxx
0000 Xxxxxx Xxxxxxx
Xxxx, XX 00000
with a copy to:
Xxxxxxxx X. Xxxxxxxxx, Esq.
Greenberg, Traurig, et al.
0000 Xxxxxxxx Xxxxxx
Xxxxx, XX 00000
10. ASSIGNMENT. This Agreement shall inure to the benefit of and be
legally binding upon all successors and assigns of the parties.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding of the parties and supersedes all prior discussions, negotiations,
agreements and understandings, whether oral or written, with respect to its
subject matter. This Agreement may be modified only by a written instrument
properly executed by all parties to this Agreement.
12. SEVERABILITY. If any one or more of the provisions of this
Agreement is held invalid, illegal or unenforceable, the remaining provisions of
this Agreement shall be unimpaired, and the invalid, illegal or unenforceable
provision shall be replaced by a mutually acceptable valid, legal and
enforceable provision which comes closest to the intent of the parties.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date
first written above.
GUARDIAN INTERNATIONAL, INC.
By: __________________________
Xxxxxxx Xxxxxxxx, President and
Chief Executive Officer
_______________________________
Xxxx Xxxxxxx, Individually
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