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NON-SOLICITATION AGREEMENT
This Agreement is made and entered into this 30th day of June, 1995,
by and between MASADA SECURITY, INC., a Delaware corporation ("Masada") and
DELTRON, INC. D/B/A SAN ANTONIO ALARM, a Texas corporation (collectively
referred to as "Deltron").
RECITALS
Pursuant to the terms of an Asset Purchase Agreement dated of June 30,
1995 (the "Purchase Agreement"), Masada is purchasing certain of the assets and
properties of Deltron.
Deltron is uniquely experienced in the development and operation of
the security alarm system business, and Masada is unwilling to acquire the
assets referenced in the Purchase Agreement without first obtaining the
agreement of Deltron not to solicit Masada's customers.
As an inducement to the consummation of the transactions evidenced by
the Purchase Agreement, Deltron is willing to issue this Non-Solicitation
Agreement to Masada and acknowledges that valuable direct consideration will be
paid to it as a result of its execution and delivery of this Agreement.
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AGREEMENT
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants, agreements and specific considerations set forth below, the
sufficiency and adequacy of which are hereby acknowledged, and intending to be
legally bound, agree as follows:
SECTION 1. NON-SOLICITATION COVENANT. Deltron shall not in any
manner, directly or indirectly, through any corporation, partnership or any
other entity, solicit or provide security monitoring services to any person or
entity set forth on Schedules 1(a) and 1(d) to the Purchase Agreement, or
otherwise take any action which would adversely affect Masada's interest in the
Alarm Accounts and Contracts-in-Process (as such terms are defined in the
Purchase Agreement) purchased from Seller. Furthermore, Deltron shall not use,
communicate, inform or otherwise divulge to any third party any information
pertaining to the persons and entities set forth on Schedules 1(a) and 1(d) to
the Purchase Agreement.
SECTION 2. CONSIDERATION. Deltron acknowledges that sufficient and
adequate consideration has been paid to it for the execution and delivery to
Masada of this Agreement.
SECTION 3. REMEDIES FOR BREACH. Deltron recognizes that in the event
of a breach of any covenant herein contained, which breach remains uncured
after five (5) days written notice by Masada, it will be difficult to determine
the damages Masada would suffer, and therefore, Deltron agrees and acknowledges
that Masada may obtain injunctive relief to prevent further breaches of the
covenants herein contained, in addition to provable damages. It is
specifically
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understood that in the event of litigation arising from a breach of the
covenants herein contained, Masada shall be entitled to recover, in addition to
damages and injunctive relief, all costs incurred, including attorneys' fees.
SECTION 4. PARTIAL INVALIDITY. In the event any provision or portion
of this Agreement is deemed to be invalid or unenforceable in whole or in part
for any reason, the remainder shall not be invalidated, rendered unenforceable,
or otherwise adversely affected. Without limiting the generality of the
forgoing, if the provisions of the covenant not to solicit contained herein
shall be deemed to create a restriction which is unreasonable as to duration or
geographical area or both, the parties agree that the provisions of this
Agreement shall be enforced for such duration and in such geographical area as
any court of any competent jurisdiction may determine to be reasonable.
SECTION 5. SUCCESSORS AND ASSIGNS. Deltron acknowledges that the
covenants contained herein are unique and personal, and that Deltron may not
assign any of its rights or delegate any of its duties or obligations under
this Agreement. The rights and obligations of Masada under this Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
Masada.
SECTION 6. NOTICES. Any notice required or permitted to be delivered
pursuant to the terms of this Agreement shall be considered to have been
sufficiently delivered within five days after posting, if mailed by U.S. Mail,
certified or registered, return receipt requested, postage
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prepaid or, upon receipt by overnight courier maintaining records of receipt by
addressee or if delivered by hand or telecopied with the original notice being
mailed the same day by one of the foregoing methods and addressed as follows:
IF TO MASADA AT:
Masada Security, Inc.
000 00xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxx
FACSIMILE: (000) 000-0000
WITH COPY TO:
Xxxx & Xxxxxx
3100 SouthTrust Tower
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: W. Xxx Xxxxxxx, Esq.
FACSIMILE: (000) 000-0000
IF TO DELTRON AT:
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
WITH COPY TO:
Xxxxxx & Xxxxxxx
000 X. Xxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000-0000
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Attention: Xxxx Xxxxxxx, Esq.
FACSIMILE: (000) 000-0000
or at such other address as the party may designate by ten days advance written
notice to the other party. Notice shall be effective when delivered to a
responsible person at the address of the addressee.
SECTION 7. WAIVER OF BREACH. The waiver by Masada of a breach of any
provision of this Agreement by Deltron shall not operate or be construed as a
waiver of any subsequent breach by Deltron. No waiver shall be valid unless in
writing and signed by an authorized representative of Masada.
SECTION 8. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties and supersedes all prior agreements, arrangements
and communications, whether oral or written, pertaining to the subject matter
hereof. This Agreement may not be modified or amended except by an agreement
in writing signed by each of the parties hereto.
SECTION 9. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas, excluding its
conflict of laws principles.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first above written.
MASADA SECURITY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Its: VP Corporate Development
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DELTRON, INC.
d/b/a San Antonio Alarm
By: /s/ Xxxxxx X. Xxxxxxxx
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Its: President
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