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EXHIBIT 10.32
CONSULTING, NO CONFLICT AND NONDISCLOSURE
AGREEMENT
This Consulting, No Conflict and Nondisclosure Agreement (this
"Agreement") is entered into effective as of May 16, 1996, by and between
Metrocall, Inc., a Delaware corporation (the "Company"), and XXXXXXX X. XXXXXX
("Singer"). The parties intend this Agreement to be an amendment and restatement
of the provisions of the "Nondisclosure/No Conflict Agreement" executed by the
Company and Singer on May 16, 1996, and that the provisions of such document are
superseded hereby.
STATEMENT OF PURPOSE
Singer has been Chairman of the Board of Directors of A+
Communications, Inc., now A+ Network, Inc. ("A+ Network") since 1985, and served
as its Chief Executive Officer from 1995 to January 15, 1996. His most recent
service has been pursuant to an employment agreement dated as of and effective
as of November 1, 1995 between Singer and A+ Network (the "Employment
Agreement"). Singer will terminate the Employment Agreement and his employment
with A+ Network as of the Effective Time ("Effective Time") of the Agreement and
Plan of Merger of even date herewith ("Merger Agreement") by and between A+
Network and the Company. This Agreement is an important aspect of the
transactions contemplated in the Merger Agreement, and the Company would not
have entered into the Merger Agreement absent Singer's agreeing to be bound by
the covenants contained in this Agreement.
Singer has substantial financial resources, experience in the
industry of A+ Network and the Company, and the ability to operate a business or
businesses that could compete with the Company. The Company would suffer
damages, including the loss of profits, if Singer engaged in a competing
business, so Singer will agree not to compete with the Company (which will be
the successor, through merger, of A+ Network) for the term described herein.
Moreover, in view of Singer's significant experience in the industry and
knowledge, the Company desires to maintain an ongoing relationship with Singer
and to retain him as an advisor to the Company with respect to the matters
identified herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the Company and Singer hereby agree
as follows:
1. ACKNOWLEDGMENTS. Singer acknowledges that A+ Network's and the
Company's business and services are highly specialized, that
the identity and particular needs of their customers and
suppliers are not generally known, and that the documents and
information regarding their customers, suppliers, services,
methods of operation, sales, pricing, and costs are highly
confidential and constitute trade secrets. Singer further
acknowledges that the services he has rendered to A+ Network
have been of a special and unusual character that have a
unique value to A+ Network and the Company, and that Singer
has had access to trade secrets and confidential information
belonging to A+ Network and the Company, the loss of
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which cannot adequately be compensated by damages in an action
at law. The Company acknowledges that Singer's knowledge and
experience in such businesses are unique and valuable to the
ongoing strategic operations of the Company.
2. DATE AND NATURE OF TERMINATION. Singer's employment with A+
Network and its subsidiaries is hereby terminated as of
Effective Time (the "Termination Date"), and Singer hereby
tenders his resignation from any positions he now has with A+
Network, including as an officer, director, or member of any
advisory boards or committees all such resignations to be
effective as of the Termination Date. Singer acknowledges and
agrees that his termination of employment with A+ Network
shall be treated as a "voluntary resignation" as described in
paragraph 4(b) of the Employment Agreement and with the effect
set forth in the Employment Agreement as of November 1, 1995.
As provided in paragraph 6 hereof, Singer and the Company
acknowledge that Singer shall continue as an independent
advisor in a nonemployee relationship with the Company
following such termination of employment.
3. ACCRUED BONUSES. Singer acknowledges that he is not entitled
to any accrued but unpaid bonuses as of the date hereof.
4. PAYMENT FOR CONSULTING, NONCOMPETITION AND NONDISCLOSURE.
Subject to Singer's full compliance with the terms of this
Agreement including the conditions set forth below, the
Company shall pay to Singer payments at a rate equal to
$325,000 per year from the Termination Date until the third
anniversary of the Termination Date, payable no less
frequently than biweekly. All amounts paid under this
paragraph 4 shall be subject to and reduced by applicable
federal and state withholding taxes, if any.
5. BENEFIT PLANS AND FRINGE BENEFITS. Between the Termination
Date and the third anniversary of the Termination Date, Singer
shall be entitled to participate in the life, medical, and
disability benefits programs of the Company to the extent (i)
(I) the Company can arrange such participation at a cost to
the Company comparable to that applicable to covering a
current employee and (II) the Company can obtain the agreement
of its third-party insurers and stop-loss carriers and (ii)
such participation is not prohibited by law or such as to call
into question the otherwise applicable tax treatment for plans
covering employees. Except as provided in the foregoing
sentence, as of the Termination Date, Singer shall not have
the right to participate in or receive any benefit under any
employee benefit plan of A+ Network, the Company, or any of
their affiliates, any fringe benefit plan of the Company or A+
Network, or any other plan, policy, or arrangement of the
Company or A+ Network providing benefits or perquisites to
employees of the Company or A+ Network generally or
individually. Singer acknowledges and agrees that any medical
coverage provided hereunder shall be in lieu of and not in
addition to any coverage required by Section 4980B of the
Internal Revenue Code ("COBRA") (with respect to which the
Company will provide Singer with a separate notice as required
by COBRA). Notwithstanding the foregoing, Singer
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may elect the payment of benefits to which he is entitled
under any 401(k) plan of A+ Network as provided under the
terms of any such plan. The provision by the Company of
benefits (other than the 401(k) payments) described in this
paragraph are conditional upon Singer's compliance with all
conditions to receipt of payments specified in paragraph 4
above.
6. CONSULTING SERVICES. Between the Termination Date and the
third anniversary of the Termination Date, the Company shall
retain Singer and Singer shall make himself available to
directly consult with and advise the Company and its officers
and directors, as reasonably requested from time-to-time by
the President or Board of Directors of the Company, to provide
advice with regard to financial, business, business expansion,
and industry matters that concern the Company's one-way or
two-way paging operations, and with regard to the transition
of the ownership of A+ Network to the Company. Such services
will be performed pursuant to reasonable arrangements therefor
(including, e.g., reimbursement of out-of-pocket expenses)
that are mutually agreed to by the parties; provided, however,
that Singer shall not be required to perform duties at
specific times to the extent that such performance would
materially interfere with any other professional or business
activities in which Singer may be engaged. The parties intend
that Singer shall be a former employee of A+ Network,
predecessor to the Company, and an independent contractor to
the Company, and agree to construe Singer's obligations under
this paragraph 6 in accordance with this intention.
7. LITIGATION ASSISTANCE. In addition to the services to be
provided pursuant to paragraph 6, Singer agrees to cooperate
with and provide assistance to the Company and its legal
counsel in connection with any litigation (including
arbitration or administrative hearings) or investigation
affecting A+ Network, its predecessors, the Company, or their
affiliates in which -- in the reasonable judgment of the
Company's counsel -- Singer's assistance or cooperation is
needed. Singer shall, when the Company requests, provide
testimony or other assistance and shall travel at the
Company's request in order to fulfill this obligation. In
connection with such litigation or investigation, the Company
shall attempt to accommodate Singer's schedule, shall provide
him with reasonable notice in advance of the times in which
his cooperation or assistance is needed, and shall reimburse
Singer for any reasonable expenses incurred in connection with
such matters.
8. NONCOMPETITION. From the Termination Date until Singer ceases
to be a member of the Board of Directors of the Company (the
"Board"), Singer will not:
(a) serve as or be a consultant to or employee, officer,
agent, director, or owner of more than three percent
of another corporation, partnership, or other entity
that competes with the one-way or two-way paging
operations of the Company; or
(b) solicit for employment or endeavor in any way to
entice away from employment with the Company or its
affiliates any employee of the
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Company or its affiliates who is an officer or a
manager of any department.
The Company's obligations under paragraphs 4 and 5 are
expressly conditioned upon Singer's strict compliance with the
provisions of this paragraph 8.
9. DISCLOSURE OF CONFIDENTIAL INFORMATION. Except as may be
required by the lawful order of a court or agency of competent
jurisdiction, Singer agrees to keep secret and confidential
indefinitely all non-public information concerning A+ Network,
the Company, or their affiliates that was acquired by or
disclosed to Singer during the course of his employment by A+
Network or any of its affiliates or predecessors, or during
the term of his consulting relationship (described in
paragraph 6) or his other dealings with the Company and its
affiliates, including information relating to customers
(including, without limitation, credit history, repayment
history, financial information, and financial statements),
costs and operations, financial data and plans, whether past,
current or planned and not to disclose the same, either
directly or indirectly, to any other person, firm or business
entity, or to use it in any way; provided, however, that the
provisions of this paragraph 9 shall not apply to information
that is in the public domain or that was disclosed to Singer
by independent third parties who were not bound by an
obligation of confidentiality; and provided, further, that the
Company recognizes that Singer has, during the course of his
employment with A+ Network, acquired certain general
information regarding the financial condition and borrowing
trends of A+ Network's customers and agrees that the
provisions of this paragraph 9 shall not apply to the use of
such general information provided the use thereof does not
violate applicable federal or state laws or the provisions of
paragraph 8 hereof. Singer further agrees that he will not
make any statement or disclosure that would be prohibited by
applicable federal or state laws and, for twelve months from
the Termination Date, he will not make any statement or
disclosure or express any opinion or interpretation regarding
A+ Network or the Company or their financial condition or
operations that is intended or reasonably likely to be
detrimental to the Company or any of its subsidiaries or
affiliates.
Singer acknowledges that a violation of this covenant is a
material breach of this Agreement.
10. REMEDIES. Singer hereby acknowledges that the remedies at law
for any breach of the covenants and obligations contained in
this Agreement will be inadequate and that, in the event of a
breach or a threatened breach of any of the provisions of this
Agreement, the Company shall be entitled to preliminary
restraining orders, injunctions, or such equitable remedies as
may be appropriate, in addition to all other remedies
available to the Company. In addition, Singer agrees that a
breach by him of any of the covenants and agreements contained
herein shall be deemed a breach of all such covenants and
agreements and shall entitle the Company, among other things,
to cease payments under paragraph 4 hereof and take such steps
as may be necessary to recover payments previously made to
Singer under
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paragraph 4 hereof (but may not recover payments of reasonable
compensation for consulting services described in paragraph
6).
Should a court of competent jurisdiction determine that the
character, duration, or geographical scope of any provision of
this Agreement is unreasonable in light of the circumstances
as they then exist, then the Company and Singer intend and
agree that the court shall construe this Agreement in such a
manner as to impose only those restrictions on the conduct of
Singer that are reasonable in light of the circumstances as
they then exist and as are necessary to assure the Company of
the intended benefit of this Agreement. If, in any judicial
proceeding, a court shall refuse to enforce all of the
separate covenants deemed included herein because, taken
together, they are more extensive than necessary to assure the
Company of the intended benefit of this Agreement, then it is
expressly understood and agreed by the Company and Employee
that those covenants that, if eliminated, would permit the
remaining separate covenants to be enforced in such
proceeding, shall, for the purpose of such proceeding, be
deemed eliminated from the provision hereof.
11. GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the internal laws of Delaware, without
giving effect to any conflicts of law provisions.
12. BINDING EFFECT. This Agreement shall bind and inure to the
benefit of A+ Network, the Company, its successors and
assigns, and Singer and his heirs and legal representatives.
Singer may not assign this Agreement and the rights hereunder.
13. VOLUNTARY AGREEMENT; REASONABLENESS. Singer hereby represents
that he has carefully read and completely understands the
provisions of this Agreement and that he has entered into this
Agreement voluntarily. Singer has carefully considered the
provisions hereof and consulted with counsel of his own
choosing, and, having done so, agrees that the restrictions
set forth in paragraphs 8 and 9 hereof (including, but not
limited to, the time periods of restriction in each such
paragraph and the geographical area of restriction set forth
in Paragraph 8 hereof) are fair and reasonable and are
reasonably required for the protection of the interests of the
Company.
14. SEPARATE COVENANTS. This Agreement shall be deemed to consist
of a series of separate covenants.
15. ADMISSIONS. Singer acknowledges that the Company's payment of
the consideration described herein is made in good faith and
shall never for any purpose be considered an admission of
liability on the part of the Company, by whom liability is
expressly denied, and no past or present wrongdoing on the
part of the Company shall be implied by such payment.
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16. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the Company and Singer and supersedes all prior
agreements relating to the subject matter hereof (including
the Employment Agreement), and may be changed only by a
writing signed by the parties hereto. Any and all prior
representations, statements, and discussions regarding the
subject matter of this Agreement have been merged into and/or
replaced by the terms of this Agreement.
17. NO MODIFICATION. Neither this Agreement nor any of the right
or obligations of the parties hereunder may be assigned,
modified, altered or amended in any way except by agreement in
writing duly executed by the parties hereto and no other
person shall have or be construed to have any legal or
equitable right, remedy or claim under, in respect of, or by
virtue of this Agreement or any provision herein contained.
18. CONDITIONAL EFFECTIVENESS. The obligations of the parties
under this Agreement are contingent on and subject to the
Closing identified in the Merger Agreement, and neither party
shall be bound hereby unless and until the Closing described
in the Merger Agreement occurs.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, or caused this Agreement to be duly executed by their authorized
representatives, under seal and with the intent that this Agreement shall
constitute a sealed instrument, as of the day and year first above written.
METROCALL, INC.
Date: By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Chief Financial Officer
Date: By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
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