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NONSOLICITATION AGREEMENT
This Agreement made as of this 2nd day of November, 1995, by and among
Masada Security, Inc., a Delaware corporation ("Buyer"), The 593 Corporation,
d/b/a Classic Alarms, a Louisiana corporation ("Seller"), and Xxxxxxx X.
Xxxxxxx, an individual ("Xxxxxxx"), Xxxxx Xxxxx, an individual ("Xxxxx") and
Xxxxx X. Xxxxxxxx, an individual ("Xxxxxxxx"). ("Xxxxxxx", "Xxxxx" and
"Xxxxxxxx" are collectively called the "Principals").
STATEMENT OF FACTS
A. All capitalized terms used in this Agreement and not otherwise defined
have the meanings given to them in that certain Agreement of Purchase and Sale
dated as of the date hereof (the "Purchase Agreement")
B. The Principals are the principal officers, directors and shareholders
of Seller.
C. Buyer intends to continue the operation of the Security Business, and
Seller and the Principals are willing to enter into this Agreement as an
inducement to Buyer to purchase the Security Business.
NOW, THEREFORE, in consideration of the premises and for good and valuable
consideration, receipt of which is acknowledged, the parties, intending to be
legally bound, covenant and agree as follows:
1. Nonsolicitation. Seller and the Principals agree not to solicit or
accept, for a period of two (2) years from the date hereof, any of the
customers or accounts sold to Buyer under the Purchase Agreement for the
purpose of providing electronic security, intercom, central vacuum, home
automation, audio systems or related services.
2. Nondisclosure.
(a) Seller and the Principals acknowledge that they possess certain
confidential, proprietary and trade secret information relating to the
customers and accounts sold to Buyer under the Purchase Agreement, including
information regarding customer lists and files (including any notes or
compilations which contain the names, addresses, telephone numbers or any
contract information for or relating to such customers) and copies of
contracts, agreements and related documents between Seller and such customers
and accounts (collectively, the "Proprietary Information").
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6. Severability. If any provisions of this Agreement as applied to any
party or to any circumstances will be adjudged by a court to be invalid or
unenforceable, the same will in no way affect any other provision of this
Agreement, the application of such provision in any other circumstances, or the
validity or enforceability of this Agreement. Buyer, Seller and the Principals
intend this Agreement to be enforced as written. If any provision or any part
thereof is held to be invalid or unenforceable because of the duration thereof,
all parties agree that the court making such determination will have the power
to reduce the duration of such provision, and/or to delete specific words or
phrases and in its modified form such provision will then be enforceable.
7. Consent to Jurisdiction, Service and Venue. For the purpose of any
suit, action or proceeding arising out of or relating to this Agreement, Seller
and the Principals hereby irrevocably consent and submit to the jurisdiction
and venue of any of the courts of the State of Alabama or of any federal court
located in Alabama. Seller appoints and constitutes the Secretary of State of
the State of Louisiana as its agent to accept and acknowledge on its behalf all
service of process in connection with any such matter, copies of which process
will be immediately mailed or delivered to Seller. Seller and the Principals
hereby irrevocably waive any objection which they may now or hereafter have to
the venue of any such suit, action or proceeding brought in such court and any
claim that such suit, action or proceeding brought in such court has been
brought in an inconvenient forum and agree that service of process in
accordance with the foregoing sentence will be deemed in every respect
effective and valid personal service of process upon Seller and the Principals.
The provisions of this Section will not limit or otherwise affect the right of
Buyer to institute and conduct an action in any other appropriate manner,
jurisdiction or court.
8. WAIVER OF JURY TRIAL. BUYER, SELLER AND THE PRINCIPALS WAIVE ALL RIGHT
TO A TRIAL BY JURY IN ANY LITIGATION RELATING TO THIS AGREEMENT.
9. Notices. All notices or other communications required or permitted
hereunder will be in writing and will be deemed given or delivered when
delivered (i) personally, (ii) by registered or certified mail, (iii) by
legible facsimile transmission or (iv) by overnight courier (fare prepaid), in
all cases addressed as follows:
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If to Buyer, to:
Xxxxxxx X. Xxxxxxxxx
Vice President of Corporate Development
Masada Security, Inc.
000 00xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Telecopy: 000-000-0000
If to Seller, to:
Xxxxx X. Xxxxxxxx
President
The 593 Corporation
0000 Xxxxx X-00 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxx 00000
If to the Principals, to:
c/o Xxxxxxx X. Xxxxx, Esquire
000 X. Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Telecopy: 000-000-0000
or to such address as such party may indicate by a notice delivered to the
other parties hereto. Notice will be deemed received the same day (when
delivered personally), five (5) days after mailing (when sent by registered or
certified mail), or the next business day (when sent by facsimile transmission
or when delivered by overnight courier). Any party to this Agreement may
change its address to which all communications and notices may be sent by
addressing notices of such change in the manner provided.
10. Entire Agreement. This Agreement is an integrated document, contains
the entire agreement between the parties, and wholly cancels, terminates and
supersedes any and all previous and/or contemporaneous oral agreements,
negotiations, commitments and writings between the parties with respect to such
subject matter, except for the Purchase Agreement. No change, modification,
extension, termination, discharge, abandonment or waiver of this Agreement or
any of its provisions, nor any representation, promise or condition relating to
this Agreement, will be binding upon the parties unless made in writing and
signed by the parties.
11. Interpretation. The descriptive headings of the Sections are for ease
of reference only and will in no way affect or be used to construe or interpret
this Agreement. All references to Sections and subsections contained in this
Agreement are references to the Sections
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and subsections of this Agreement. The terms and conditions of this Agreement
will not be construed against its drafter. The word "including" means
"including without limitation."
12. Remedies Cumulative. It is agreed that the rights and remedies herein
provided in case of any default or breach by Seller and the Principals of this
Agreement are cumulative and will not affect in any manner any other remedies
that Buyer may have by reason of such default or breach by Seller or the
Principals. The exercise of any right or remedy will be without prejudice to
the right to exercise any other right or remedy provided herein, by law or by
equity.
13. Waiver. No waiver of any right or remedy allowed hereunder will be
implied by the failure to enforce any such right or remedy. No express waiver
will affect any such right or remedy other than that to which the waiver is
applicable and only for that occurrence.
14. Parties in Interest. This Agreement will be binding upon and will
inure to the benefit of Buyer and its successors and assigns and the permitted
heirs, successors and assigns of Seller and the Principals.
15. Assignment. Buyer has the right to assign this Agreement to any third
party without the consent of Seller or the Principals. Seller and the
Principals will have no right to assign this Agreement.
16. Governing Law. This Agreement and the rights and the obligations of
the parties is governed by and construed and enforced in accordance with the
laws of the State of Alabama without regard to any jurisdiction's conflicts of
law provisions.
17. Joint and Several Obligations. Seller and the Principals acknowledge
that all of their agreements and covenants contained in this Agreement are made
on a joint and several basis.
18. Incorporation by Reference. Any and all Schedules, Exhibits,
recitals, statements (including the Statement of Facts), reports, certificates
or other documents or instruments referred to or attached to this Agreement are
incorporated by reference into this Agreement.
19. Expenses. Buyer, Seller and the Principals each agree to pay all of
their respective costs and expenses incident to the negotiation and preparation
of this Agreement and to the performance and compliance with all agreements and
conditions contained herein on their part to be performed or complied with,
including the fees and costs of their counsel and accountants; provided,
however, that Seller agrees to pay Buyer's legal fees and costs in the event
Buyer must go to court to enforce this Agreement.
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20. Counterparts; Telecopy. This Agreement may be executed in one or more
counterparts, each of which when taken together will comprise one instrument.
Delivery of executed signature pages hereof by facsimile transmission will
constitute effective and binding execution and delivery.
21. Consultation. Seller and the Principals acknowledge that they have:
(a) carefully read and fully understood all of the provisions of this
Agreement, and (b) had an opportunity to consult with their respective
attorneys prior to executing this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered as of the day and year first above written.
MASADA SECURITY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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THE 593 CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
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/s/ Xxxxxxx X. Xxxxxxx,
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Xxxxxxx X. Xxxxxxx, an individual
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, an individual
/s/ Xxxxx x. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, an individual
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