EXHIBIT 10.26
NON-COMPETITION AGREEMENT
AGREEMENT made this ____ day of January, 2005 by and between Fusion
Telecommunications International, Inc., a Delaware corporation ("Fusion") and
Xxxxxx Xxxxx ("Xxxxxx").
W I T N E S S E T H:
- - - - - - - - - - -
WHEREAS, Xxxxxx Xxxxx is the Chief Executive Officer of Fusion but does not
receive any compensation from the Company for his services in such capacity;
WHEREAS, Xxxxxx Xxxxx is not a party to an employment agreement and is not
committed to devote any specific portion of his time working for Fusion; and
WHEREAS, Fusion is engaged in the provision of traditional voice services,
voice over Internet protocol services, private network services, Internet access
services are Internet-based video conferencing services (the "Business");
WHEREAS, Xxxxxx Securities has required the execution of this Agreement as
a condition to acting as the underwriter for the Company's initial public
offering;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants set forth in this Agreement, the parties hereto agree as follows:
1. Non-competition.
(a) DURATION AND EXTENT OF RESTRICTION. Xxxxxx shall not, for a period
ending January __, 2007, two (2) years after the date hereof (the "Closing
Date"), within the geographic regions where Fusion is currently or is planning
to operate its Business, engage in the Business the same as, similar to or in
general competition with the Business being conducted by Fusion at or prior to
the Closing Date; provided, however, that in the event Fusion
consummates an initial public offering of its securities, the Closing Date shall
be the two (2) year anniversary from the effective date of the registration
statement. The term "engage in" shall include, but shall not be limited to,
activities, whether direct or indirect, as proprietor, partner, stockholder,
director, officer, principal, agent, employee, consultant or lender; provided,
however, that the ownership of not more than three percent (3%) in the aggregate
by Xxxxxx of the stock of a publicly held corporation shall not be included in
such term.
(b) RESTRICTIONS WITH RESPECT TO CUSTOMERS. In furtherance of, and
without in any way limiting the restriction in subparagraph (a) above, for the
period specified in subparagraph (a) above, Xxxxxx shall not, directly or
indirectly:
(i) request any present or future customers of Fusion to curtail
or cancel their business with Fusion;
(ii) disclose the identity of any past, present or future
customers of Fusion to any other person, firm or corporation engaged in a
business the same as, similar to or in general competition with the Business
being conducted by Fusion within the territorial limits described in
subparagraph (a) above;
(iii) solicit, canvas or accept, or authorize any person to
solicit, canvas or accept, from any past, present or future customers of Fusion
any business for any other person, firm or corporation engaged in a business the
same as, similar to or in general competition with the Business being conducted
by Fusion within the territorial limits described in subparagraph (a) above; or
(iv) induce or attempt to influence any employee of Fusion to
terminate his employment.
As used in this subparagraph (b), "future customer" shall mean a customer
with whom business will have been transacted between the date hereof and the end
of the term specified in subparagraph (a) above.
(c) REMEDIES FOR BREACH. Xxxxxx acknowledges that the restrictions
contained in this paragraph 1, in view of the nature of the Business in which
Fusion is engaged, are reasonable and necessary to protect the legitimate
interests of Fusion and that any violation of these restrictions would result in
irreparable injury to Fusion. Xxxxxx agrees that, in the event of a violation of
any of such restrictions, Fusion shall be entitled to preliminary and permanent
injunctive relief as well as an equitable accounting of all earnings, profits
and other benefits arising from such violation, which rights shall be cumulative
and in addition to any other rights or remedies to which Fusion may be entitled.
In the event of a violation, the period of non-competition referred to in
subparagraph (a) above shall be extended by a period of time equal to that
period beginning when such violation commenced and ending when the activities
constituting such violation shall have been finally terminated in good faith.
2. MISCELLANEOUS.
(a) NOTICES. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made and received when delivered against receipt
or when deposited in the United States mails, first class postage prepaid,
addressed as set forth below:
(i) If to Xxxxxx:
Xxxxxx Xxxxx
c/o Fusion Telecommunications International, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
(ii) If to Fusion:
Fusion Telecommunications International, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
with a copy, given in the manner prescribed above, to:
Xxxxxxx, Savage, Kaplowitz, Wolf & Marcus, LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx, Esq.
Either party may alter the address to which communications or copies are to
be sent by giving notice of such change of address in conformity with the
provisions of this paragraph for the giving of notice.
(b) INDULGENCES. Neither any failure nor any delay on the part of
either party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence.
(c) CONTROLLING LAW. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement, shall be governed by and
construed in accordance with the laws of the State of New York, notwithstanding
any New York or other conflict-of-interest provisions to the contrary.
(d) BINDING NATURE OF AGREEMENT. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns except that no party may assign
or transfer such party's rights or obligations under this Agreement without the
prior written consent of the other party.
(e) EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of the parties reflected hereon as the signatories.
(f) PROVISIONS SEPARABLE. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(g) ENTIRE AGREEMENT. This Agreement contains the entire understanding
between the parties hereto with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements and understandings,
inducements and conditions, express or implied, oral or written, except as
herein contained. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms hereof.
This Agreement may not be modified or amended other than by an agreement in
writing.
(h) PARAGRAPH HEADINGS. The paragraph headings in this Agreement are
for convenience only; they form no part of this Agreement and shall not affect
its interpretation.
(i) GENDER. Words used herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context requires.
(j) NUMBER OF DAYS. In computing the number of days for purposes of
this Agreement, all days shall be counted, including Saturdays, Sundays and
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday or holiday, then the final day shall be deemed to be the next
day which is not a Saturday, Sunday or holiday.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
Fusion Telecommunications International, Inc.
By:
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Authorized Officer
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Xxxxxx Xxxxx
