AGREEMENT NOT TO COMPETE
This Agreement Not to Compete (this "Agreement") is made and entered
into as of January 9, 2003, by and between Certified Security Integrators, Inc.,
a California Corporation ("Buyer"), and Stratesec, Incorporated, a Delaware
Corporation ("Seller"). This Agreement shall become effective concurrently with
the Closing (as such term is defined in the Asset Purchase Agreement (as
hereinafter defined)).
RECITALS:
A. Buyer and Seller are parties to that certain Asset Purchase
Agreement, dated as of January 9, 2003 (incorporated herein by this reference
and hereinafter called the "Asset Purchase Agreement"), which agreement, among
other things, contemplates the acquisition by Buyer of certain assets of Seller.
B. This Agreement is a material inducement to Buyer entering into the
Asset Purchase Agreement, and Buyer has relied upon this Agreement in purchasing
from Seller the assets and goodwill of Seller, as identified in the Asset
Purchase Agreement.
C. Capitalized terms used in this Agreement shall have the same
meanings as set forth in the Asset Purchase Agreement unless otherwise defined
herein.
AGREEMENT:
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Agreement Not to Compete. During the Noncompetition Period
(as hereinafter defined), Seller shall not in any manner, directly or
indirectly, including through entities controlled by Seller or otherwise, within
the Noncompetition Territory (as hereinafter defined), (i) engage or participate
in the business of providing any of the following services with respect to
security technology and communications devices: consulting services; sale or
installation of products; or the monitoring of any security technology or
communications devices (the "Business"), or otherwise perform services for third
parties which are currently competitive, or may at some time in the future
become competitive, with Buyer with respect to the Business ("Competitive
Services"), or (ii) own or operate any business which presently does engage, or
in the future may engage or participate in the Business other than in support of
services requested by Seller's East Coast customers for their offices in the
Non-competition Territory. Seller shall be deemed to be engaged in the business
or performing Competitive Services if Seller shall engage in such Business or
perform such services directly or indirectly, whether for Seller's own account
or for that of another person, firm or corporation, or whether as stockholder,
principal, partner, member, employee, agent, investor, proprietor, director,
officer, employee or consultant, or in any other capacity.
For the purposes of this Agreement (i) "Noncompetition Period"
shall mean a period beginning on the Closing Date and ending on the third
anniversary thereof; and (ii) "Noncompetition Territory for the seller" shall
mean the states of California, Oregon, Washington, Arizona, Utah, Idaho and
Colorado.
Seller represents and warrants that Seller does not own or operate,
directly, indirectly, in whole or in part, beneficially or otherwise, any
interest in any entity which performs any services related to the Business,
with the exception of Stratesec Incorporated.
2. Remedies. The necessity of protection against the
competition of Seller and the nature and scope of such protection has been
carefully considered and agreed upon by the parties hereto. Seller acknowledges
that the nature of the Business is highly competitive, that one of the most
valuable assets acquired by Buyer from Seller is Seller's goodwill in the
marketplace and among its customers, which Seller helped to develop and
maintain, and that Buyer, in purchasing Seller's assets and entering into the
transactions contemplated by the Asset Purchase Agreement, has relied on the
fact that it will acquire the goodwill of Seller and upon Seller's commitment to
restrict its ability to compete with Buyer or any current or future affiliate
thereof in the conduct of the Business. Seller and Buyer hereby agree and
acknowledge that the duration, scope and geographic area applicable to the
restrictions set forth in this Agreement are fair, reasonable and necessary and
include the area in which the goodwill of the Business has been developed by
Seller. Seller acknowledges that the consideration provided for herein is
sufficient and adequate to compensate Seller for agreeing to the restrictions
contained in this Agreement and that such restrictions will not cause Seller
undue hardship. If, however, any court determines that the foregoing
restrictions are unreasonable and for that reason unenforceable, such
restrictions shall be modified, rewritten or interpreted to include as much of
their nature and scope as will render them enforceable. Seller and Buyer agree
that a monetary remedy for a breach of this Agreement will be inadequate and
will be impracticable and extremely difficult to prove, and further agree that
such a breach would cause Buyer irreparable harm, and that Buyer shall be
entitled to temporary and permanent injunctive relief without the necessity of
proving actual damages. Seller agrees that Buyer shall be entitled to such
injunctive relief, including temporary restraining orders, preliminary
injunctions and permanent injunctions, without the necessity of posting bond or
other undertaking in connection therewith. Any such requirement of bond or
undertaking is hereby waived by Seller, and Seller acknowledges that in the
absence of such a waiver, a bond or undertaking may be required by the court.
3. Consideration. The consummation of the transactions contemplated by the Asset
Purchase Agreement shall constitute the consideration for Seller's covenants set
forth in this Agreement.
4. Notices. Notices sent by Buyer or Seller hereunder shall be made in writing
in accordance with the Asset Purchase Agreement or as Buyer and Seller may
otherwise agree in writing.
5. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of California, without regard to
principles of conflicts of law.
6. Dispute Resolution Process. The parties hereby agree that,
in order to obtain prompt and expeditious resolution of any disputes under this
Agreement, each claim, dispute or controversy of whatever nature, arising out
of, in connection with, or in relation to the interpretation, performance or
breach of this Agreement (or any other agreement contemplated by or related to
this Agreement), including without limitation any claim based on contract, tort
or statute, or the arbitrability of any claim hereunder, shall be settled by
final and binding arbitration in accordance with Section 10.7 of the Asset
Purchase Agreement.
7. Waiver of Jury Trial. Consistent with Section 6, each
Holder hereby waives its respective right to a jury trial of any permitted claim
or cause of action arising out of this Agreement or any dealings between the
parties relating to the subject matter to this Agreement. The scope of this
waiver is intended to be all encompassing of any and all disputes that may be
filed in any court and that relate the subject matter of this Agreement,
including, without limitation, contract claims, tort claims, and all other
common law and statutory claims. This waiver is irrevocable, meaning that it may
not be modified either orally or in writing, and this waiver shall apply to any
subsequent amendments, supplements or other modifications to this Agreement.
8. Representation by Counsel. Each party hereto represents and
agrees with each other that such party has been represented by or had the
opportunity to be represented by, independent counsel of such party's own
choosing, and that such party has had the full right and opportunity to consult
with such party's respective attorney(s), that to the extent, if any, that it
desired, such party availed itself of this right and opportunity, that such
party or such party's authorized officers (as the case may be) have carefully
read and fully understand this Agreement in its entirety and have had it fully
explained to them by such party's respective counsel, that each is fully aware
of the contents thereof and its meaning, intent and legal effect, and that such
party or such party's authorized officer (as the case may be) is competent to
execute this Agreement and has executed this Agreement free from coercion,
duress or undue influence.
9. Entire Agreement; Amendments; Waiver. This Agreement
supersedes all prior agreements between the parties with respect to its subject
matter (including the Letter of Intent between Buyer and Seller) and constitutes
(along with the Asset Purchase Agreement and the documents referred to therein)
a complete and exclusive statement of the terms of the agreement between the
parties with respect to its subject matter. This Agreement may not be amended
except by a written agreement executed by an authorized representative of the
party to be charged with the amendment. A waiver of any right under any
provisions of this Agreement by either party hereto shall only be valid if such
waiver is in writing and signed by the party to be charged. No waiver of any
right under any provisions of this Agreement on any occasion shall be a waiver
of any other right or under any other provision or on any other occasion. No
extension of time for performance of any obligation or act shall be deemed an
extension of the time for performance of any other obligation or act.
10. Assignment; Beneficiaries. No party may assign any of its
rights under this Agreement without the prior consent of the other parties,
except that Buyer may assign any of its rights under this Agreement to any
Subsidiary (as defined in the Asset Purchase Agreement) or corporate parent of
Buyer, or to any acquiror of substantially its assets or as collateral security
for any borrowings. Subject to the preceding sentence, this Agreement will apply
to, be binding in all respects upon, and inure to the benefit of the successors
and permitted assigns of the parties. Nothing expressed or referred to in this
Agreement is intended to benefit any Person other than the parties hereto or to
give any such third Person any legal or equitable right, remedy, or claim under
or with respect to this Agreement or any provision of this Agreement. This
Agreement and all of its provisions and conditions are for the sole and
exclusive benefit of the parties to this Agreement and their successors and
assigns.
11. Section Headings; Construction; Counterparts. The headings
of sections in this Agreement are provided for convenience only and will not
affect its construction or interpretation. All words used in this Agreement will
be construed to be of such gender or number as the circumstances require. Unless
otherwise expressly provided, the word "including" does not limit the preceding
words or terms. This Agreement may be executed in one or more counterparts, each
of which will be deemed to be an original copy hereof and all of which, when
taken together, will be deemed to constitute one and the same agreement.
12. No Interpretation Against Drafter. This Agreement is the product of
negotiations between the parties hereto represented by counsel and any rules of
construction relating to interpretation against the drafter of an agreement
shall not apply to this Agreement and are expressly waived.
13. Further Assurances. If at any time after the Closing any
further action is necessary or desirable to carry out the purposes of this
Agreement or the Supplemental Agreements, each of the parties shall use its best
efforts to take such further action (including the execution and delivery of
such further instruments and documents) as any other party may reasonably
request and to cooperate with such other party in connection with the foregoing.
14. Severability. In the event that, notwithstanding the
express, carefully considered agreement of Buyer and Seller set forth herein,
any provision of this Agreement shall be deemed invalid, unenforceable or
illegal, or if the period during which this Agreement is to remain effective is
found to exceed the legally permissible period or the territory with respect to
which this Agreement is to be effective is found to exceed the legally
permissible territory, then notwithstanding such invalidity, unenforceability or
illegality the remainder of this Agreement shall continue in full force and
effect during the maximum period and for the maximum territory legally
permissible.
(signature page follows)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
"Seller"
Stratesec Incorporated
/s/ Xxxxx X. XxXxxxxx
--------------------------------
By: Xxxxx X. XxXxxxxx
Its: CEO
"Buyer"
Certified Security Integrators, Inc.
-----------------------------
By:
Its:
