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EXHIBIT 10.2
NONCOMPETITION AGREEMENT
This AGREEMENT is made and entered into as of August 8, 1997, by and between
METROCALL, INC., a Delaware corporation (the "Company"), and Xxxxx X. Xxxxxx
(the "Executive").
STATEMENT OF PURPOSE
The Executive is President of ProNet Inc. ("ProNet"). The Executive
will terminate his employment with ProNet as of the Effective Time ("Effective
Time") of the Agreement and Plan of Merger of even date herewith ("Merger
Agreement") by and between ProNet and the Company. The Executive will agree
not to compete with the Company (which term as used herein will be deemed to
include ProNet as a result of the merger) for the term described herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and agreements contained
herein and other good and valuable consideration, the Company and the Executive
hereby agree as follows:
1. ACKNOWLEDGMENTS. The Executive acknowledges that ProNet'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, that the documents and information regarding their
customers, suppliers, services, methods of operation, sales, pricing,
and costs are highly confidential and constitute trade secrets, and
that ProNet's and the Company's products and services are marketed
throughout the United States. The Executive further acknowledges that
the services he has rendered to ProNet have been of a special and
unusual character that have a unique value to ProNet, and that the
Executive has had access to trade secrets and confidential information
belonging to ProNet, the loss of which cannot adequately be compensated
by damages in an action at law.
2. DATE AND NATURE OF TERMINATION. Pursuant to the Executive's Employment
Agreement dated as of May 18, 1994 ("Employment Agreement") and the
letter agreement of even date herewith ("Letter Agreement"), the
Executive's employment with ProNet and its
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subsidiaries shall be terminated as of the Effective Time (the
"Termination Date"), and the Executive hereby tenders his resignation
from all positions he now has with ProNet, including as an officer,
director, or member of any advisory boards or committees, all such
resignations to be effective as of the Termination Date. This
Agreement is contingent on and subject to the Closing under the Merger
Agreement, and neither party shall be bound by it, nor shall it have
any force and effect, unless and until the Closing occurs.
3. PAYMENT FOR NONCOMPETITION. Subject to the Executive's full compliance
with the terms of this Agreement, including the conditions set forth
below, the Company shall pay to the Executive 78 bi-weekly payments of
$4069.23 each, beginning on the first regularly scheduled pay day for
the Company's senior executive personnel occurring after the, payable
in accordance with the Company's payroll processing system. All
amounts paid under this paragraph 3 shall be subject to and reduced by
applicable federal and state withholding taxes, if any.
4. BENEFIT PLANS AND BENEFITS. Except as required by Section 4980B of the
Internal Revenue Code ("COBRA") or the Letter Agreement, as of the
Termination Date, the Executive shall not have the right to participate
in or receive any benefit under any employee benefit plan of ProNet,
the Company, or any of their affiliates, any fringe benefit plan of the
Company or ProNet, or any other plan, policy, or arrangement of the
Company or ProNet providing benefits or perquisites to employees of the
Company or ProNet generally or individually.
5. NONCOMPETITION. From the Termination Date until the third anniversary
of the Termination Date, the Executive will not, directly or
indirectly:
(a) serve as or be a consultant to or employee, officer, agent,
director, or owner of more than five percent of another
corporation, partnership, or other entity whose principal
business is providing narrow band one-way or two-way paging
services anywhere within the United States;
(b) solicit for employment or endeavor in any way to entice away
from employment with the Company or its affiliates, or in any
way interfere with the relationship
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between the Company or its affiliates and any employee of the
Company or its affiliates; or
(c) induce or attempt to induce any customer, supplier, licensee
or business relation of the Company to cease doing business
with the Company, or in any way interfere with the Company's
relationship with any customer or business relation of the
Company.
6. DISCLOSURE OF CONFIDENTIAL INFORMATION. Except as may be required by
the lawful order of a court or agency of competent jurisdiction, the
Executive agrees to keep secret and confidential indefinitely all
non-public information concerning ProNet or its affiliates that was
acquired by or disclosed to the Executive during the course of his
employment by ProNet or any of its affiliates or predecessors,
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 6 shall not apply to information that is in the
public domain or that was disclosed to the Executive by independent
third parties who were not bound by an obligation of confidentiality.
The Executive further agrees that, for twelve months from the
Termination Date, he will not make any statement or disclosure or
express any opinion or interpretation regarding ProNet or the Company
or their financial condition or operations that is intended to be
detrimental to the Company or any of its subsidiaries or affiliates.
7. REMEDIES. The Executive 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,
the Executive 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 3 hereof, provided, that the
Company may not cease payments under this
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paragraph 7 unless it has first given written notice to the Executive
that the Company considers the Executive to be in breach, and the
Executive shall not have cured such breach within 10 days after
delivery of such notice, and, provided further, that any payments that
the Company withholds pursuant to this paragraph 7 shall be deposited
in escrow pending resolution of any dispute regarding whether the
Executive has breached his covenants or obligations under this
Agreement. In the event that the Company breaches its obligations
under this Agreement, the Executive shall be released from his
obligations hereunder, provided, that the Executive shall not be so
released under this paragraph 7 unless he has first given written
notice to the Company that the Executive considers the Company to be
in breach, and the Company shall not have cured such breach within 10
days after delivery of such notice
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 the Executive intend and agree that the court shall
construe this Agreement in such a manner as to impose only those
restrictions on the conduct of the Executive 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 the Executive 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.
8. 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.
9. BINDING EFFECT. This Agreement shall bind and inure to the benefit of
ProNet, the Company, its successors and assigns, and the Executive and
his heirs and legal representatives. The Executive may not assign
this Agreement and the rights hereunder, except that Executive may
assign any payments to which he is entitled under paragraph 3.
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10. VOLUNTARY AGREEMENT; REASONABLENESS. The Executive hereby represents
that he has carefully read and completely understands the provisions
of this Agreement and that he has entered into this Agreement
voluntarily. The Executive 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 5 and 6
hereof (including, but not limited to, the time periods of restriction
in each such paragraphs and the geographical area of restriction set
forth in paragraph 5 hereof) are fair and reasonable and are reasonably
required for the protection of the interests of the Company.
11. SEPARATE COVENANTS. This Agreement shall be deemed to consist of a
series of separate covenants.
12. LITIGATION ASSISTANCE. The Executive 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 relating to the operation of ProNet's business prior
to the Effective Time, in which, in the reasonable judgment of the
Company's counsel, the Executive's assistance or cooperation is needed
due to his personal involvement in or knowledge about the circumstances
to which the litigation or investigation relates. The Executive 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 use its best efforts to accommodate the Executive's
schedule, shall provide him with as much notice as possible in advance
of the times during which his cooperation or assistance is needed (but
in no event less than 10 days prior notice), and shall reimburse the
Executive for any reasonable expenses incurred in connection with such
matters. In no event whatsoever shall the Executive's obligations
under this paragraph 12 require him to take any action that would
adversely affect his ability to engage in any and all business
activities in which the Executive may be involved or to spend more
than 15 hours during any one month period performing such obligations.
13. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the Company and the Executive and supersedes all prior
agreements relating to the subject matter hereof, 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
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have been merged into and/or replaced by the terms of this Agreement.
This Agreement does not affect the Executive's rights under his
Employment Agreement and the Letter Agreement.
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: -----------------------------
Date: ------------------------ By: -----------------------------
Xxxxx X. Xxxxxx
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