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NON-SOLICITATION AGREEMENT
This Agreement made as of this 13th day of June, 1995, by and between
Masada Security, Inc., a Delaware corporation ("Buyer"), and Alert Centre,
Inc., a Delaware corporation ("Seller").
STATEMENT OF FACTS
1. Buyer is simultaneously purchasing from Seller pursuant to an Asset
Purchase Agreement dated as of June 9, 1995 (the "Agreement of Purchase"), all
of the Assets to be Acquired including certain alarm accounts in the State of
Louisiana.
2. Any and all capitalized terms used herein and not otherwise defined
shall have the meanings given to them in the Purchase Agreement.
3. Buyer intends to continue the operation of the Security Business, and
Seller is willing to enter into this Agreement in consideration of Buyer's
purchase of the Security Business.
NOW, THEREFORE, in consideration of the premises and for good and valuable
consideration, receipt of which is hereby acknowledged, the parties, intending
to be legally bound, covenant and agree as follows:
1. Agreement Not to Solicit. Seller agrees never to solicit or accept,
at any time in the future, any of the customers or accounts sold to Buyer under
the Agreement of Purchase for the purpose of providing electronic security,
central vacuum, intercom systems, home sound or related services.
2. Non-Disclosure.
(a) Seller acknowledges that it possesses certain confidential,
proprietary and trade secret information, materials and business concepts with
respect to the operation of the Security Business, including information
regarding sales and marketing, vendors, customer lists and files (including
former customers), accounting data and methods, operating procedures, pricing
policy, strategic plans, intellectual property, contracts and manufacturer's
warranties (collectively, the "Proprietary Information").
(b) At all times hereafter, Seller agrees (i) not to publish, copy,
disclose, allow to be disclosed, or use for its own benefit or for the benefit
of any other person, firm, corporation or entity, the Proprietary Information
without the prior written consent of Buyer, and (ii) to maintain strictly the
confidentiality of the Proprietary Information at all times. Seller agrees to
take all necessary precautions to protect the Proprietary Information from
unauthorized disclosure or use.
3. Employees. For a period of two (2) years from the date hereof,
neither Seller nor any entity controlling, controlled by or under common
control with Seller shall knowingly solicit for employment any of the present
or future employees of the Security Business located in New Orleans, Louisiana.
Notwithstanding anything to the contrary stated in this Agreement, this Section
3 shall not be binding upon Seller's successors or assigns in the event of a
change of control of Seller or the sale by Seller of all or substantially all
of its assets.
4. Acknowledgment. Seller acknowledges and recognizes that:
(a) this Agreement is necessary for the protection of the legitimate
business interests of Buyer in purchasing the Security Business;
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(b) the execution and delivery of this Agreement is a mandatory condition
precedent to the closing of the transactions contemplated by the Agreement of
Purchase, without which such transactions will not close;
(c) the scope of this Agreement regarding duration and the level of
activities restricted is reasonable;
(d) the breach of this Agreement will be such that Buyer will not have an
adequate remedy at law because of the unique nature of the assets being
conveyed and the confusion to customers and the public that a breach would
create; and
(e) the laws of the State of Alabama have been selected by the parties to
govern this Agreement as an inducement to Buyer to purchase the Security
Business and Seller specifically waives any provision under Louisiana law,
including under La.R.S. 23:921, which would limit or in any way restrict the
scope of the agreement not to solicit contained in Section 1 hereof.
5. Remedy. Seller acknowledges and agrees that the rights of Buyer
under this Agreement are of a specialized and unique character and that
immediate and irreparable damage will result to Buyer and the Security Business
if Seller fails to or refuses to perform its obligations under this Agreement
and, notwithstanding any election by Buyer to claim damages from Seller as a
result of any such failure or refusal, Buyer may, in addition to any other
remedies and damages available, seek an injunction (without the need to post a
bond or other security) in a court of competent jurisdiction to restrain any
such failure or refusal.
6. Severability. If any provisions of this Agreement as applied to any
party or to any circumstances shall be adjudged by a court to be invalid or
unenforceable, the same shall 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 and Seller 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 or the
geographic areas covered thereby, the parties agree that the court making such
determination shall have the power to reduce the duration and/or geographic
areas of such provision, and/or to delete specific words or phrases and in its
modified form such provision shall 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
hereby irrevocably consents and submits to the jurisdiction and venue of any of
the courts of the State of Alabama or of any federal court located in the
Southern District of Alabama and Buyer hereby irrevocably consents and submits
to the jurisdiction and venue of any of the courts of the State of Colorado or
of any Federal court located in the District of Colorado. Seller and Buyer
each waive any objections which they may now or hereafter have to the venue of
any such suit, action or proceeding brought in such courts and any claim that
such suit, action or proceeding brought in such courts has been brought in an
inconvenient forum. The provisions of this Section shall not limit or
otherwise affect the right of Buyer or Seller to institute and conduct an
action in any other appropriate manner, jurisdiction or court.
8. Waiver of Jury Trial. BUYER AND SELLER HEREBY 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 shall be in writing and shall 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: with a copy to:
Masada Security, Inc. Xxxxxxxx Xxxxxxxxx Professional Corporation
Attn: Xxxxxxx X. Xxxxxxxxx, Vice President Attn: Xxxxxx X. Xxxxxxxx, Esquire
000 00xx Xxxxxx Xxxxx, Xxxxx 000 58th Floor, 000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Telecopy: 000-000-0000 Telecopy: 000-000-0000
If to Seller, to: with a copy to:
Xxxxxxx X. Xxxxxxxxx Xxxxxxx X. Xxxxx
Vice President General Counsel
Alert Centre, Inc. Alert Centre, Inc.
0000 X. Xxxxxx Xx. 0000 X. Xxxxxx Xx.
Xxxxxxxxx, Xxxxxxxx 00000 Xxxxxxxxx, Xxxxxxxx 00000
Telecopy: 000-000-0000 Telecopy: 000-000-0000
or to such address as such party may indicate by a notice delivered to the
other party hereto. Notice shall 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
hereunder 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 Agreement of Purchase. No
change, modification, extension, termination, discharge, abandonment or waiver
of this Agreement or any of the provisions hereof, nor any representation,
promise or condition relating to this Agreement, shall 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 shall 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 and subsections of this
Agreement. The terms and conditions of this Agreement shall 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 of this Agreement
are cumulative and shall not affect in any manner any other remedies that Buyer
may have by reason of such default or breach by Seller. The exercise of any
right or remedy herein provided shall 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 shall
be implied by the failure to enforce any such right or remedy. No express
waiver shall affect any such right or remedy other than that to which the
waiver is applicable and only for that occurrence.
14. Parties in Interest. Except as stated in Section 3 hereof, this
Agreement shall be binding upon and shall inure to the benefit of Buyer and its
successors and assigns and the permitted successors and assigns of Seller.
15. Assignment. Buyer shall have the right to assign this Agreement to
any third party without the consent of Seller. Seller shall have no right to
assign its rights or obligations under this Agreement except that
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Seller may assign any rights that it has under this Agreement to an entity
acquiring all or substantially all of the assets of Seller.
16. Governing Law. This Agreement and the rights and the obligations
of the parties hereto shall be governed by and construed and enforced in
accordance with the laws of the State of Alabama without regard to its
conflicts of law provisions.
17. Incorporation by Reference. Any and all Schedules, Exhibits,
recitals, statements (including the Statement of Facts), reports, certificates
or other documents or instruments referred to herein or attached hereto are
incorporated herein by reference as though fully set forth at the point
referred to in this Agreement.
18. Expenses. Buyer and Seller each agree to pay all of their
respective costs and expenses incident to the negotiation and preparation of
this Agreement including the fees and costs of their counsel and accountants.
The prevailing party in any dispute regarding performance or compliance with
this Agreement will be entitled to its reasonable fees and costs of counsel.
19. Counterparts; Telecopy. This Agreement may be executed in one or
more counterparts, each of which when taken together shall comprise one
instrument. Delivery of executed signature pages hereof by facsimile
transmission shall constitute effective and binding execution and delivery
hereof.
20. Consultation. Seller acknowledges that it has carefully read and
fully understood all of the provisions of this Agreement and that it has
consulted with its 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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ALERT CENTRE, INC.
By: /s/ Brain X. Xxxxxxx
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