EXHIBIT 2.4
NON-COMPETE AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of this first day of May,
1997, by and between Xxxxxx Xxxxxx, an individual, ("Xxxxxx") Xxxxxxx Xxxxxx, an
individual, Xxxxxx Xxxxxx as trustee of The Xxxx Xxxxxx Xxxxxxxx Trust, (the
"Xxxx Trust") and Xxxxxx Xxxxxx as trustee of The Xxxxxx Xxxxxx Oxfeld Trust
(the "Xxxxxx Trust") (each a "Seller" and collectively "Sellers"), on the one
hand, and Security Systems Holdings, Inc., a Delaware corporation ("Purchaser"),
on the other hand.
W I T N E S S E T H:
WHEREAS, the Sellers collectively own 100% of the issued and outstanding
capital shares of Protective Alarms, Inc., a Connecticut corporation
("Protective");
WHEREAS, Protective is engaged in the burglar and fire alarm business in
the tri-state, metropolitan New York area (the "Business"); and
WHEREAS, Sellers and Purchaser have executed a certain Stock Purchase
Agreement dated December 20, 1996 (the "Stock Purchase Agreement"), pursuant to
which Sellers agree to sell, and Purchaser agrees to buy, all of the issued and
outstanding shares of the capital stock of Protective, all upon the terms and
conditions therein set forth;
WHEREAS, Purchaser would not purchase the stock of Protective from Sellers
pursuant to the Stock Purchase Agreement but for the agreements and covenants of
Sellers contained herein;
WHEREAS, the agreements and covenants contained herein are necessary and
essential to protect the value of the Business acquired by Purchaser; and
NOW, THEREFORE, the parties hereto agree as follows:
1. Confidential Information and Covenant Not To Compete.
On and after the date of this Agreement, Purchaser (or its successors or
assigns) operates and will operate Protective's residential and/or commercial
security business either in Protective or in a successor by merger with
Protective, based in the tri-state, metropolitan New York area, the payment for
which will benefit Sellers. In recognition and specific acknowledgment of
Purchaser's legitimate need to protect its business, Sellers each covenant and
agree that they shall not:
(a) at any time disclose to any person other than Purchaser, or use,
in competition with or in a manner otherwise detrimental to the interests of
Purchaser, for the benefit of itself or others, any confidential information
related to the Business, including but not limited to, trade
secrets, customer lists, details of client or customer contracts, pricing
policies, operational methods, marketing plans or strategies, and sales records,
for any reason or purpose whatsoever;
(b) except for the performance of services, if any, for Protective
or its successor by merger as an employee, for a period of three years following
the later of the date of this Agreement or termination of employment by
Protective, for any reason, become a partner, shareholder, owner, principal,
agent or employee of, or consultant to, any entity engaged, or engage
individually, in the residential and/or commercial security business or any
business that competes with such a business, in any county in the state of
Connecticut or in Westchester or Rockland Counties in the state of New York (the
"Restricted Area");
(c) for a period of ten years following the later of the date of
this Agreement or termination of employment by Protective or its successor by
merger, for any reason, directly or indirectly contact, solicit or otherwise
seek to do business in the residential or commercial security business with, or
engage in any such business with, any clients or customers to whom Protective
has at any time prior to the date hereof rendered services or sold products. If
Xxxxxxx X. XxxXxxxxxx is no longer the Chairman (or comparable position) of the
Company or of any parent corporation of the Company, at any time after the
expiration of six years following the date of this Agreement, the provisions of
this subpart (c) shall no longer be binding on the Sellers. For purposes of this
subpart (c) general advertising such as yellow page or media advertising (but
not including direct mail, telemarketing or other targeted marketing efforts)
shall not be considered solicitation, provided that the prohibition on engaging
in business with the clients or customers identified in this subpart (c) shall
remain in effect.
2. Rights and Remedies Upon Breach. If any Seller breaches, or threatens
to commit a breach of, any of the provisions of Section 1 (the "Restrictive
Covenants"), Purchaser shall have the following rights and remedies, each of
which rights and remedies shall be independent of any others and severally
enforceable, and shall be in addition to, and not in lieu of, any other rights
and remedies available to Purchaser at law or in equity:
(a) The right and remedy to have the Restrictive Covenants specifically
enforced by any court of competent jurisdiction, including, without limitation,
the right to an entry against such Seller of restraining orders and injunctions
(preliminary, mandatory, temporary and permanent) against violations, threatened
or actual, and whether or not then continuing, of any of the Restrictive
Covenants, it being acknowledged and agreed by Sellers that any breach or
threatened breach of any of the Restrictive Covenants would cause irreparable
and continuing injury to Purchaser and that money damages would not provide an
adequate remedy to Purchaser; or
(b) The right and remedy to require such Seller to account for and pay
over to Purchaser all compensation, profits, monies, accruals, increments or
other benefits derived or received by any of them as the result of any
transactions constituting a breach of any of the Restrictive Covenants.
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3. Severability of Covenants. Sellers acknowledge and agree that the
Restrictive Covenants are reasonable and valid in geographical and temporal
scope and in all other respects. If any court determines that any of the
Restrictive Covenants, or any part of any of the Restrictive Covenants, is
invalid or unenforceable, the remainder of the Restrictive Covenants and parts
thereof shall not thereby be affected and shall be given full effect, without
regard to the invalid portions.
4. Blue-Pencilling. If any court determines that any of the Restrictive
Covenants, or any part thereof, is invalid or unenforceable because of the
geographic or temporal scope of such provision, it is the intention and
agreement of the parties that such court shall have the power to reduce the
geographic or temporal scope of such provision, as the case may be, and, in its
reduced form, such provision shall then be enforceable.
5. Enforceability in Jurisdictions. Sellers and Purchaser intend to and
hereby confer jurisdiction to enforce the Restrictive Covenants upon the courts
of Connecticut.
6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut.
7. Benefit. This Agreement shall be binding upon the heirs, executors,
administrators, legal representatives, nominees, successors and assigns of
Sellers and shall inure to the benefit of the successors and assigns of
Purchaser.
8. Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed, or caused a duly
authorized officer to execute, this Agreement as of the date first written
above.
SELLERS: PURCHASER:
Security Systems Holdings, Inc.
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
By /s/ Xxxxxxx X. XxxXxxxxxx
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Xxxxxxx X. XxxXxxxxxx
/s/ Xxxxxxx Xxxxxx Chairman
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Xxxxxxx Xxxxxx
The Xxxx Xxxxxx Xxxxxxxx Trust The Xxxxxx Xxxxxx Oxfeld Trust
By /s/ Xxxxxx Xxxxxx By /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, trustee Xxxxxx Xxxxxx, trustee
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