LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (the "Agreement") is made and entered as of the
31st day of October, 1995 by and among Network Long Distance, Inc.
("Purchaser") and Value Tel, Inc. ("Seller").
WHEREAS, Seller and Purchaser have this date executed an Asset Purchase
Agreement (the "Asset Purchase Agreement") whereby Seller has agreed to sell,
and Purchaser has agreed to purchase, certain selected assets of Seller (the
"Assets"); and
WHEREAS, as a material condition to Purchaser's performance under the
Asset Purchase Agreement, Seller has agreed to restrict itself from selling
stock received from Purchaser pursuant to the Asset Purchase Agreement (the
"Acquired Shares"); and
WHEREAS, Seller acknowledges that the Acquired Shares are "restricted"
and may not be transferred or sold without a registration statement being in
effect with the respect to the Acquired Shares or unless or until an
exemption is available.
WHEREAS, as a material condition to Purchaser's performance under the
Asset Purchase Agreement, Seller has agreed to restrict itself from effecting
any transfer, stock dividend, liquidation or disposition of the Acquired
Shares to Seller's individual shareholders which would result in any of
Seller's individual shareholders owning more five percent (5%) or more of
Purchaser's outstanding common stock.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, covenants, representations and warranties herein contained, it is
agreed as follows:
1. Seller hereby agrees not to sell, transfer or otherwise dispose of any
portion of the Acquired Shares constituting more than one percent (1%) of all
issued and outstanding shares of Purchaser's common stock every ninety (90)
days. The foregoing covenant shall apply regardless of whether the Acquired
Shares are registered pursuant to a Form S-3 filing, or any other
registration statement filing, with the Securities Exchange Commission. The
restrictions contained in this paragraph shall not apply to any Acquired
Shares which are "piggyback" registered AND SOLD as part of a secondary
offering in accordance with Section 11.12(a) of the Asset Purchase Agreement.
2. Seller hereby agrees not to effect any transfer, stock dividend,
liquidation or disposition of the Acquired Shares to Seller's individual
shareholders which would result in any of Seller's individual shareholders
owning, either directly or indirectly, five percent (5%) or more of all
issued and outstanding shares of Purchaser's common stock at any given time.
1
3. The restrictions and covenants contained herein shall be enforceable
against Seller as well as any subsequent owners, transferees and beneficial
owners of the Acquired Shares.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
Network Long Distance, Inc. Value Tel, Inc.
By: /s/ XXXX XXXX By: /s/ XXX XXXXX
----------------------------- -----------------------------
Name: Xxxx Xxxx Name: Xxx Xxxxx
Title: President Title: President
2
MASTER LETTER OF AGENCY
Master Letter of Agency ("Master LOA") executed this 31st day of
October, 1995 by and on behalf of Value Tel, Inc., a Delaware corporation
("Seller") in favor of Network Long Distance, Inc., a Delaware corporation
("Purchaser").
Seller hereby names, appoints and authorizes Purchaser to act as the
substitute agent in all matters related to providing long distance service
for the customers whose customer accounts (the "Customer Accounts") are being
transferred to Purchaser pursuant to that certain Asset Purchase Agreement of
even date 1995 between Seller and Purchaser (the "Asset Purchase Agreement").
Seller further hereby authorizes Purchaser to obtain all information
necessary to service the Customer Accounts, including but not limited to
information relating to any account from any telephone company or any credit
reporting service.
Seller further hereby names, appoints and authorizes Purchaser to act as
the "RespOrg" on all Customer Accounts.
Seller and Purchaser hereby agree that this Master LOA may be excluded
in counterparts which, when taken together, shall constitute an original.
Seller
Value Tel, Inc.
By /s/ XXX XXXXX
------------------------
Xxx Xxxxx, President
Purchaser:
Network Long Distance, Inc.
By /s/ XXXX XXXX
------------------------
Xxxx Xxxx, President
NONCOMPETITION AGREEMENT
AGREEMENT (the "Agreement") made this 31st day of October, 1995 between
Network Long Distance, Inc. a Delaware corporation ("Network"), and Xxxxx
Xxxxx ("Individual").
RECITALS
WHEREAS, Network is a switch-based reseller of long distance
telecommunications services based in Baton Rouge, Louisiana, and
WHEREAS, Individual is an employee and shareholder of Value Tel, Inc.
("Value Tel"), a switchless reseller of long distance telecommunications
services based in Naperville, Illinois, and
WHEREAS, Network has purchased, or will shortly be purchasing among
other things, selected customer accounts ("Customer Accounts") and related
assets (collectively, the "Assets") of Value Tel's end user customers (the
"Acquisition"), and
WHEREAS, Individual has agreed, as a condition to the Acquisition, to
execute a noncompetition agreement restraining him from contacting, selling,
marketing, soliciting and diverting the Customer Accounts as to long distance
telecommunications products and services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements of the parties herein contained, the parties hereby agree as
follows:
1. TERM
1.1 Network and Individual hereby agree that the term of this
Agreement shall be for five (5) years from the date hereof and shall not be
cancellable prior to its expiration unless specifically agreed to in writing
by both parties.
2. CONFIDENTIALITY
2.1 Individual acknowledges that in and as a result of the
Acquisition, he will be making use of, acquiring, and/or adding to
confidential information of a special and unique nature and value relating to
Network's business, including but not limited to, Network's trade secrets,
systems, procedures, manuals, confidential reports, computer print-outs,
lists of customers, computer data base information, as well as the nature and
type of services and goods sold, marketed and/or rendered by Network and the
prices charged therefore, and the equipment and methods preferred and used by
Network and its customers ("Confidential Information").
1
2.2 As a material inducement to Network to enter into this Agreement
and to consummate the Acquisition. Individual covenants and agrees that (a)
he shall not at any time during or following the term of this Agreement,
directly or indirectly, divulge or disclose for any purpose whatsoever any
Confidential Information that has been obtained by, or disclosed to, him as a
result of the Acquisition and (b) upon termination of this Agreement, he
shall deliver promptly to Network all price lists, commissions schedules,
discount rates, equipment, notes, books, correspondence, drawings, customer
lists, computer print-outs, computer discs or duplicates, hard copy of
computer data worksheets, and any other written and/or graphic records or
materials of any kind relating to Network's business which are in his
possession or under its control.
2.3 Furthermore, Individual acknowledges and agrees that
(a) Individual shall keep secret all Confidential Information
and will not make, use, sell, or reveal any of the same to any competitor or
any other person unless and until the same shall have become a matter of
public knowledge or until written permission shall have been given to him by
Network to such sale, transfer or other disclosure.
(b) At all times Individual shall cooperate with Network or its
designee and their counsel in prosecuting or defending any litigation and/or
administrative proceedings which may arise in connection with Network's
business operations.
(c) No termination of this Agreement shall release Individual
from the above obligations.
2.4 In the event of a breach or threatened breach of Individual of any
of the provisions of this Section 2, Network, in addition to and not in
limitation of any other rights, remedies or damages available to it, shall be
entitled to preliminary and permanent injunctive relief in order to prevent
or restrain such breach or threatened breach of Individual.
3. COVENANTS AGAINST COMPETITION.
3.1 As a material inducement to Network to consummate the Acquisition,
Individual covenants and agrees as follows:
(a) During the term of this Agreement, Individual shall not,
directly or indirectly, own an interest in, operate, join, control,
participate in, or be connected in any manner with any person, firm,
corporation or other entity soliciting orders for selling, distributing, or
otherwise marketing long distance telecommunications services to the Customer
Accounts.
(b) During the term of this Agreement, Individual shall not,
directly or
2
indirectly, engage in any business activity that would require Individual to
disclose, base judgment upon, or otherwise utilize any Confidential
Information obtained by or disclosed to Individual as a result of the
Acquisition.
(c) During the course of this Agreement, Individual shall not,
directly, indirectly, commit any act or undertake any activity that would
tend to interfere or dispute any existing relationship between Network and
any of the customers whose Customer Accounts were transferred to Network as
part of the Acquisition.
(d) During the term of this Agreement, Individual shall not
contact or solicit any customers of Network whom he learned of as a result of
the Acquisition.
(e) During the term of this Agreement, Individual shall not
contact or solicit any customers and/or potential customers whose accounts
and/or service contracts were transferred to Network by Value Tel as part of
the Acquisition.
3.2 Individual covenants and agrees that if he violates any of the
foregoing covenants, Network shall be entitled to an accounting and repayment
of all profits, compensation, commissions, remuneration or other benefits
that individual directly or indirectly, has realized and/or may realize as a
result of, or in connection with the violation. The foregoing remedies shall
be in addition to, and not in limitation of, any injunctive relief or other
rights or remedies to which Network is or may be entitled at law, in equity,
or under this Agreement.
3.3 Individual has carefully read and considered the foregoing
provisions of this section, and having done so, agrees that the restrictions
contained therein are fair and reasonable and reasonably required for the
protection of the interest of Network. If, notwithstanding the foregoing, any
of the provisions contained in this section shall be held to be invalid or
unenforceable, the remaining provisions thereof nevertheless shall continue
to be valid and enforceable as though the invalid or unenforceable
provisions had not been included in this section. If any restriction
contained in this section is deemed by a court or other tribunal with
jurisdiction to be unreasonable or unenforceable, such restriction shall
become and thereafter shall be the maximum restriction permitted by law.
4. APPLICABLE LAW. This Agreement shall be construed according to
and government by the laws of Louisiana.
5. ASSIGNMENT. Individual may not assign any right or obligation
under this Agreement without the prior written consent of Network. Any
attempted assignment in violation of this section shall be ineffective, null
and void.
6. SEVERABILITY. The provisions of this Agreement shall be deemed
severable, and the invalidity or unenforceability of any one or more of the
provisions of
3
this Agreement shall not affect the validity and enforceability of the other
provisions.
7. NOTICE. Any notice required under this Agreement shall be
sufficient and shall be deemed effective if it is in writing and delivered
personally or sent by certified or registered mail, return receipt requested,
first-class postage prepaid, to the addresses listed below.
8. ENTIRE AGREEMENT.
8.1 This Agreement, contains the entire agreement and understanding
by any between Individual and Network with respect to the subject matter
hereof and no representations, promises, agreement, or understandings of any
nature written or oral, not contained herein shall be of any force or effect.
8.2 No modification or amendment of this Agreement shall be valid or
binding unless it is in writing and signed by the parties hereto.
8.3 No waiver of any provisions of this Agreement shall be valid
unless it is in writing and signed by the parties hereto.
IN WITNESS WHEREOF, the parties have fully executed this Agreement in
duplicate originals before the undersigned competent witnesses:
WITNESSES: NETWORK LONG DISTANCE, INC.
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
By /s/ XXXX XXXX
----------------------------- ---------------------------------
Name: Xxxx Xxxx
Title: President
/s/ XXXXXXX XXXXXX
----------------------------- -----------------------------------
Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
4
NONCOMPETITION AGREEMENT
AGREEMENT (the "Agreement") made this 31st day of October, 1995 between
Network Long Distance, Inc. a Delaware corporation ("Network"), and Xxxxx
Xxxxx ("Individual").
RECITALS
WHEREAS, Network is a switch-based reseller of long distance
telecommunications services based in Baton Rouge, Louisiana, and
WHEREAS, Individual is an employee and shareholder of Value Tel, Inc.
("Value Tel"), a switchless reseller of long distance telecommunications
services based in Naperville, Illinois, and
WHEREAS, Network has purchased, or will shortly be purchasing among
other things, selected customer accounts ("Customer Accounts") and related
assets (collectively, the "Assets") of Value Tel's end user customers (the
"Acquisition"), and
WHEREAS, Individual has agreed, as a condition to the Acquisition, to
execute a noncompetition agreement restraining him from contacting, selling,
marketing, soliciting and diverting the Customer Accounts as to long distance
telecommunications products and services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements of the parties herein contained, the parties hereby agree as
follows:
1. TERM
1.1 Network and Individual hereby agree that the term of this
Agreement shall be for five (5) years from the date hereof and shall not be
cancellable prior to its expiration unless specifically agreed to in writing
by both parties.
2. CONFIDENTIALITY
2.1 Individual acknowledges that in and as a result of the
Acquisition, he will be making use of, acquiring, and/or adding to
confidential information of a special and unique nature and value relating to
Network's business, including but not limited to, Network's trade secrets,
systems, procedures, manuals, confidential reports, computer print-outs,
lists of customers, computer data base information, as well as the nature and
type of services and goods sold, marketed and/or rendered by Network and the
prices charged therefore, and the equipment and methods preferred and used by
Network and its customers ("Confidential Information").
1
2.2 As a material inducement to Network to enter into this Agreement
and to consummate the Acquisition. Individual covenants and agrees that (a)
he shall not at any time during or following the term of this Agreement,
directly or indirectly, divulge or disclose for any purpose whatsoever any
Confidential Information that has been obtained by, or disclosed to, him as a
result of the Acquisition and (b) upon termination of this Agreement, he
shall deliver promptly to Network all price lists, commissions schedules,
discount rates, equipment, notes, books, correspondence, drawings, customer
lists, computer print-outs, computer discs or duplicates, hard copy of
computer data worksheets, and any other written and/or graphic records or
materials of any kind relating to Network's business which are in his
possession or under its control.
2.3 Furthermore, Individual acknowledges and agrees that
(a) Individual shall keep secret all Confidential Information
and will not make, use, sell, or reveal any of the same to any competitor or
any other person unless and until the same shall have become a matter of
public knowledge or until written permission shall have been given to him by
Network to such sale, transfer or other disclosure.
(b) At all times Individual shall cooperate with Network or its
designee and their counsel in prosecuting or defending any litigation and/or
administrative proceedings which may arise in connection with Network's
business operations.
(c) No termination of this Agreement shall release Individual
from the above obligations.
2.4 In the event of a breach or threatened breach of Individual of any
of the provisions of this Section 2, Network, in addition to and not in
limitation of any other rights, remedies or damages available to it, shall be
entitled to preliminary and permanent injunctive relief in order to prevent
or restrain such breach or threatened breach of Individual.
3. COVENANTS AGAINST COMPETITION.
3.1 As a material inducement to Network to consummate the Acquisition,
Individual covenants and agrees as follows:
(a) During the term of this Agreement, Individual shall not,
directly or indirectly, own an interest in, operate, join, control,
participate in, or be connected in any manner with any person, firm,
corporation or other entity soliciting orders for selling, distributing, or
otherwise marketing long distance telecommunications services to the Customer
Accounts.
(b) During the term of this Agreement, Individual shall not,
directly or
2
indirectly, engage in any business activity that would require Individual to
disclose, base judgment upon, or otherwise utilize any Confidential
Information obtained by or disclosed to Individual as a result of the
Acquisition.
(c) During the course of this Agreement, Individual shall not,
directly, indirectly, commit any act or undertake any activity that would
tend to interfere or dispute any existing relationship between Network and
any of the customers whose Customer Accounts were transferred to Network as
part of the Acquisition.
(d) During the term of this Agreement, Individual shall not
contact or solicit any customers of Network whom he learned of as a result of
the Acquisition.
(e) During the term of this Agreement, Individual shall not
contact or solicit any customers and/or potential customers whose accounts
and/or service contracts were transferred to Network by Value Tel as part of
the Acquisition.
3.2 Individual covenants and agrees that if he violates any of the
foregoing covenants, Network shall be entitled to an accounting and repayment
of all profits, compensation, commissions, remuneration or other benefits
that individual directly or indirectly, has realized and/or may realize as a
result of, or in connection with the violation. The foregoing remedies shall
be in addition to, and not in limitation of, any injunctive relief or other
rights or remedies to which Network is or may be entitled at law, in equity,
or under this Agreement.
3.3 Individual has carefully read and considered the foregoing
provisions of this section, and having done so, agrees that the restrictions
contained therein are fair and reasonable and reasonably required for the
protection of the interest of Network. If, notwithstanding the foregoing, any
of the provisions contained in this section shall be held to be invalid or
unenforceable, the remaining provisions thereof nevertheless shall continue
to be valid and enforceable as though the invalid or unenforceable
provisions had not been included in this section. If any restriction
contained in this section is deemed by a court or other tribunal with
jurisdiction to be unreasonable or unenforceable, such restriction shall
become and thereafter shall be the maximum restriction permitted by law.
4. APPLICABLE LAW. This Agreement shall be construed according to
and government by the laws of Louisiana.
5. ASSIGNMENT. Individual may not assign any right or obligation
under this Agreement without the prior written consent of Network. Any
attempted assignment in violation of this section shall be ineffective, null
and void.
6. SEVERABILITY. The provisions of this Agreement shall be deemed
severable, and the invalidity or unenforceability of any one or more of the
provisions of
3
this Agreement shall not affect the validity and enforceability of the other
provisions.
7. NOTICE. Any notice required under this Agreement shall be
sufficient and shall be deemed effective if it is in writing and delivered
personally or sent by certified or registered mail, return receipt requested,
first-class postage prepaid, to the addresses listed below.
8. ENTIRE AGREEMENT.
8.1 This Agreement, contains the entire agreement and understanding
by any between Individual and Network with respect to the subject matter
hereof and no representations, promises, agreement, or understandings of any
nature written or oral, not contained herein shall be of any force or effect.
8.2 No modification or amendment of this Agreement shall be valid or
binding unless it is in writing and signed by the parties hereto.
8.3 No waiver of any provisions of this Agreement shall be valid
unless it is in writing and signed by the parties hereto.
IN WITNESS WHEREOF, the parties have fully executed this Agreement in
duplicate originals before the undersigned competent witnesses:
WITNESSES: NETWORK LONG DISTANCE, INC.
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
By /s/ XXXX XXXX
----------------------------- ---------------------------------
Name: Xxxx Xxxx
Title: President
/s/ XXX WATERLOO
----------------------------- -----------------------------------
Xxx Waterloo
0000 Xxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
4
NONCOMPETITION AGREEMENT
AGREEMENT (the "Agreement") made this 31st day of October, 1995 between
Network Long Distance, Inc. a Delaware corporation ("Network"), and Xxxxx
Xxxxx ("Individual").
RECITALS
WHEREAS, Network is a switch-based reseller of long distance
telecommunications services based in Baton Rouge, Louisiana, and
WHEREAS, Individual is an employee and shareholder of Value Tel, Inc.
("Value Tel"), a switchless reseller of long distance telecommunications
services based in Naperville, Illinois, and
WHEREAS, Network has purchased, or will shortly be purchasing among
other things, selected customer accounts ("Customer Accounts") and related
assets (collectively, the "Assets") of Value Tel's end user customers (the
"Acquisition"), and
WHEREAS, Individual has agreed, as a condition to the Acquisition, to
execute a noncompetition agreement restraining him from contacting, selling,
marketing, soliciting and diverting the Customer Accounts as to long distance
telecommunications products and services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements of the parties herein contained, the parties hereby agree as
follows:
1. TERM
1.1 Network and Individual hereby agree that the term of this
Agreement shall be for five (5) years from the date hereof and shall not be
cancellable prior to its expiration unless specifically agreed to in writing
by both parties.
2. CONFIDENTIALITY
2.1 Individual acknowledges that in and as a result of the
Acquisition, he will be making use of, acquiring, and/or adding to
confidential information of a special and unique nature and value relating to
Network's business, including but not limited to, Network's trade secrets,
systems, procedures, manuals, confidential reports, computer print-outs,
lists of customers, computer data base information, as well as the nature and
type of services and goods sold, marketed and/or rendered by Network and the
prices charged therefore, and the equipment and methods preferred and used by
Network and its customers ("Confidential Information").
1
2.2 As a material inducement to Network to enter into this Agreement
and to consummate the Acquisition. Individual covenants and agrees that (a)
he shall not at any time during or following the term of this Agreement,
directly or indirectly, divulge or disclose for any purpose whatsoever any
Confidential Information that has been obtained by, or disclosed to, him as a
result of the Acquisition and (b) upon termination of this Agreement, he
shall deliver promptly to Network all price lists, commissions schedules,
discount rates, equipment, notes, books, correspondence, drawings, customer
lists, computer print-outs, computer discs or duplicates, hard copy of
computer data worksheets, and any other written and/or graphic records or
materials of any kind relating to Network's business which are in his
possession or under its control.
2.3 Furthermore, Individual acknowledges and agrees that
(a) Individual shall keep secret all Confidential Information
and will not make, use, sell, or reveal any of the same to any competitor or
any other person unless and until the same shall have become a matter of
public knowledge or until written permission shall have been given to him by
Network to such sale, transfer or other disclosure.
(b) At all times Individual shall cooperate with Network or its
designee and their counsel in prosecuting or defending any litigation and/or
administrative proceedings which may arise in connection with Network's
business operations.
(c) No termination of this Agreement shall release Individual
from the above obligations.
2.4 In the event of a breach or threatened breach of Individual of any
of the provisions of this Section 2, Network, in addition to and not in
limitation of any other rights, remedies or damages available to it, shall be
entitled to preliminary and permanent injunctive relief in order to prevent
or restrain such breach or threatened breach of Individual.
3. COVENANTS AGAINST COMPETITION.
3.1 As a material inducement to Network to consummate the Acquisition,
Individual covenants and agrees as follows:
(a) During the term of this Agreement, Individual shall not,
directly or indirectly, own an interest in, operate, join, control,
participate in, or be connected in any manner with any person, firm,
corporation or other entity soliciting orders for selling, distributing, or
otherwise marketing long distance telecommunications services to the Customer
Accounts.
(b) During the term of this Agreement, Individual shall not,
directly or
2
indirectly, engage in any business activity that would require Individual to
disclose, base judgment upon, or otherwise utilize any Confidential
Information obtained by or disclosed to Individual as a result of the
Acquisition.
(c) During the course of this Agreement, Individual shall not,
directly, indirectly, commit any act or undertake any activity that would
tend to interfere or dispute any existing relationship between Network and
any of the customers whose Customer Accounts were transferred to Network as
part of the Acquisition.
(d) During the term of this Agreement, Individual shall not
contact or solicit any customers of Network whom he learned of as a result of
the Acquisition.
(e) During the term of this Agreement, Individual shall not
contact or solicit any customers and/or potential customers whose accounts
and/or service contracts were transferred to Network by Value Tel as part of
the Acquisition.
3.2 Individual covenants and agrees that if he violates any of the
foregoing covenants, Network shall be entitled to an accounting and repayment
of all profits, compensation, commissions, remuneration or other benefits
that individual directly or indirectly, has realized and/or may realize as a
result of, or in connection with the violation. The foregoing remedies shall
be in addition to, and not in limitation of, any injunctive relief or other
rights or remedies to which Network is or may be entitled at law, in equity,
or under this Agreement.
3.3 Individual has carefully read and considered the foregoing
provisions of this section, and having done so, agrees that the restrictions
contained therein are fair and reasonable and reasonably required for the
protection of the interest of Network. If, notwithstanding the foregoing, any
of the provisions contained in this section shall be held to be invalid or
unenforceable, the remaining provisions thereof nevertheless shall continue
to be valid and enforceable as though the invalid or unenforceable
provisions had not been included in this section. If any restriction
contained in this section is deemed by a court or other tribunal with
jurisdiction to be unreasonable or unenforceable, such restriction shall
become and thereafter shall be the maximum restriction permitted by law.
4. APPLICABLE LAW. This Agreement shall be construed according to
and government by the laws of Louisiana.
5. ASSIGNMENT. Individual may not assign any right or obligation
under this Agreement without the prior written consent of Network. Any
attempted assignment in violation of this section shall be ineffective, null
and void.
6. SEVERABILITY. The provisions of this Agreement shall be deemed
severable, and the invalidity or unenforceability of any one or more of the
provisions of
3
this Agreement shall not affect the validity and enforceability of the other
provisions.
7. NOTICE. Any notice required under this Agreement shall be
sufficient and shall be deemed effective if it is in writing and delivered
personally or sent by certified or registered mail, return receipt requested,
first-class postage prepaid, to the addresses listed below.
8. ENTIRE AGREEMENT.
8.1 This Agreement, contains the entire agreement and understanding
by any between Individual and Network with respect to the subject matter
hereof and no representations, promises, agreement, or understandings of any
nature written or oral, not contained herein shall be of any force or effect.
8.2 No modification or amendment of this Agreement shall be valid or
binding unless it is in writing and signed by the parties hereto.
8.3 No waiver of any provisions of this Agreement shall be valid
unless it is in writing and signed by the parties hereto.
IN WITNESS WHEREOF, the parties have fully executed this Agreement in
duplicate originals before the undersigned competent witnesses:
WITNESSES: NETWORK LONG DISTANCE, INC.
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
By /s/ XXXX XXXX
----------------------------- ---------------------------------
Name: Xxxx Xxxx
Title: President
/s/ XXX XXXXX
----------------------------- -----------------------------------
Xxx Xxxxx
0000 Xxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
4
NONCOMPETITION AGREEMENT
AGREEMENT (the "Agreement") made this 31st day of October, 1995 between
Network Long Distance, Inc. a Delaware corporation ("Network"), and Xxxxx
Xxxxx ("Individual").
RECITALS
WHEREAS, Network is a switch-based reseller of long distance
telecommunications services based in Baton Rouge, Louisiana, and
WHEREAS, Individual is an employee and shareholder of Value Tel, Inc.
("Value Tel"), a switchless reseller of long distance telecommunications
services based in Naperville, Illinois, and
WHEREAS, Network has purchased, or will shortly be purchasing among
other things, selected customer accounts ("Customer Accounts") and related
assets (collectively, the "Assets") of Value Tel's end user customers (the
"Acquisition"), and
WHEREAS, Individual has agreed, as a condition to the Acquisition, to
execute a noncompetition agreement restraining him from contacting, selling,
marketing, soliciting and diverting the Customer Accounts as to long distance
telecommunications products and services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements of the parties herein contained, the parties hereby agree as
follows:
1. TERM
1.1 Network and Individual hereby agree that the term of this
Agreement shall be for five (5) years from the date hereof and shall not be
cancellable prior to its expiration unless specifically agreed to in writing
by both parties.
2. CONFIDENTIALITY
2.1 Individual acknowledges that in and as a result of the
Acquisition, he will be making use of, acquiring, and/or adding to
confidential information of a special and unique nature and value relating to
Network's business, including but not limited to, Network's trade secrets,
systems, procedures, manuals, confidential reports, computer print-outs,
lists of customers, computer data base information, as well as the nature and
type of services and goods sold, marketed and/or rendered by Network and the
prices charged therefore, and the equipment and methods preferred and used by
Network and its customers ("Confidential Information").
1
2.2 As a material inducement to Network to enter into this Agreement
and to consummate the Acquisition. Individual covenants and agrees that (a)
he shall not at any time during or following the term of this Agreement,
directly or indirectly, divulge or disclose for any purpose whatsoever any
Confidential Information that has been obtained by, or disclosed to, him as a
result of the Acquisition and (b) upon termination of this Agreement, he
shall deliver promptly to Network all price lists, commissions schedules,
discount rates, equipment, notes, books, correspondence, drawings, customer
lists, computer print-outs, computer discs or duplicates, hard copy of
computer data worksheets, and any other written and/or graphic records or
materials of any kind relating to Network's business which are in his
possession or under its control.
2.3 Furthermore, Individual acknowledges and agrees that
(a) Individual shall keep secret all Confidential Information
and will not make, use, sell, or reveal any of the same to any competitor or
any other person unless and until the same shall have become a matter of
public knowledge or until written permission shall have been given to him by
Network to such sale, transfer or other disclosure.
(b) At all times Individual shall cooperate with Network or its
designee and their counsel in prosecuting or defending any litigation and/or
administrative proceedings which may arise in connection with Network's
business operations.
(c) No termination of this Agreement shall release Individual
from the above obligations.
2.4 In the event of a breach or threatened breach of Individual of any
of the provisions of this Section 2, Network, in addition to and not in
limitation of any other rights, remedies or damages available to it, shall be
entitled to preliminary and permanent injunctive relief in order to prevent
or restrain such breach or threatened breach of Individual.
3. COVENANTS AGAINST COMPETITION.
3.1 As a material inducement to Network to consummate the Acquisition,
Individual covenants and agrees as follows:
(a) During the term of this Agreement, Individual shall not,
directly or indirectly, own an interest in, operate, join, control,
participate in, or be connected in any manner with any person, firm,
corporation or other entity soliciting orders for selling, distributing, or
otherwise marketing long distance telecommunications services to the Customer
Accounts.
(b) During the term of this Agreement, Individual shall not,
directly or
2
indirectly, engage in any business activity that would require Individual to
disclose, base judgment upon, or otherwise utilize any Confidential
Information obtained by or disclosed to Individual as a result of the
Acquisition.
(c) During the course of this Agreement, Individual shall not,
directly, indirectly, commit any act or undertake any activity that would
tend to interfere or dispute any existing relationship between Network and
any of the customers whose Customer Accounts were transferred to Network as
part of the Acquisition.
(d) During the term of this Agreement, Individual shall not
contact or solicit any customers of Network whom he learned of as a result of
the Acquisition.
(e) During the term of this Agreement, Individual shall not
contact or solicit any customers and/or potential customers whose accounts
and/or service contracts were transferred to Network by Value Tel as part of
the Acquisition.
3.2 Individual covenants and agrees that if he violates any of the
foregoing covenants, Network shall be entitled to an accounting and repayment
of all profits, compensation, commissions, remuneration or other benefits
that individual directly or indirectly, has realized and/or may realize as a
result of, or in connection with the violation. The foregoing remedies shall
be in addition to, and not in limitation of, any injunctive relief or other
rights or remedies to which Network is or may be entitled at law, in equity,
or under this Agreement.
3.3 Individual has carefully read and considered the foregoing
provisions of this section, and having done so, agrees that the restrictions
contained therein are fair and reasonable and reasonably required for the
protection of the interest of Network. If, notwithstanding the foregoing, any
of the provisions contained in this section shall be held to be invalid or
unenforceable, the remaining provisions thereof nevertheless shall continue
to be valid and enforceable as though the invalid or unenforceable
provisions had not been included in this section. If any restriction
contained in this section is deemed by a court or other tribunal with
jurisdiction to be unreasonable or unenforceable, such restriction shall
become and thereafter shall be the maximum restriction permitted by law.
4. APPLICABLE LAW. This Agreement shall be construed according to
and government by the laws of Louisiana.
5. ASSIGNMENT. Individual may not assign any right or obligation
under this Agreement without the prior written consent of Network. Any
attempted assignment in violation of this section shall be ineffective, null
and void.
6. SEVERABILITY. The provisions of this Agreement shall be deemed
severable, and the invalidity or unenforceability of any one or more of the
provisions of
3
this Agreement shall not affect the validity and enforceability of the other
provisions.
7. NOTICE. Any notice required under this Agreement shall be
sufficient and shall be deemed effective if it is in writing and delivered
personally or sent by certified or registered mail, return receipt requested,
first-class postage prepaid, to the addresses listed below.
8. ENTIRE AGREEMENT.
8.1 This Agreement, contains the entire agreement and understanding
by any between Individual and Network with respect to the subject matter
hereof and no representations, promises, agreement, or understandings of any
nature written or oral, not contained herein shall be of any force or effect.
8.2 No modification or amendment of this Agreement shall be valid or
binding unless it is in writing and signed by the parties hereto.
8.3 No waiver of any provisions of this Agreement shall be valid
unless it is in writing and signed by the parties hereto.
IN WITNESS WHEREOF, the parties have fully executed this Agreement in
duplicate originals before the undersigned competent witnesses:
WITNESSES: NETWORK LONG DISTANCE, INC.
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
By /s/ XXXX XXXX
----------------------------- ---------------------------------
Name: Xxxx Xxxx
Title: President
/s/ XXXXX XXXXX
----------------------------- -----------------------------------
Xxxxx Xxxxx
0000 Xxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
4
