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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
Xxxxxx X. Xxxxxxxx, an individual resident of the State of Texas ("Xxxxxxxx").
RECITALS
Pursuant to the terms of an Asset Purchase Agreement dated as of June
30, 1995 (the "Purchase Agreement"), Masada is purchasing certain of the assets
and properties of Deltron, Inc. d/b/a San Antonio Alarm ("Seller").
Xxxxxxxx is a shareholder and key employee of Seller and 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 Xxxxxxxx not to
solicit Masada's customers.
As an inducement to the consummation of the transactions evidenced by
the Purchase Agreement, Xxxxxxxx is willing to issue this Non-Solicitation
Agreement to Masada and acknowledges that (i) he is the sole shareholder of
Seller, (ii) Seller is orgainized as a subchapter S corporation and (iii)
valuable consideration will be given to him from Seller as a result of his
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. Xxxxxxxx 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. Xxxxxxxx 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. Xxxxxxxx acknowledges that sufficient and
adequate consideration has been or will be given to him after the completion of
the transactions contemplated by the Purchase Agreement.
SECTION 3. REMEDIES FOR BREACH. Xxxxxxxx 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,
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Xxxxxxxx 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 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 while or in part
for any reason, the remainder shall not be invalidated, rendered unenforceable,
or otherwise adversely affected. Without limiting the generality of the
foregoing, if the provisions of the covenant not to solicit contained herein
shall be deemed to create a restriction which is unreasonable as to duration of
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. Xxxxxxxx acknowledges that the
covenants contained herein are unique and personal, and that Xxxxxxxx may not
assign any of his rights or delegate any of his 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.
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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 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 XXXXXXXX AT:
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
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WITH COPY TO:
Xxxxxx & Xxxxxxx
000 X. Xxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000-0000
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 Xxxxxxxx shall not operate or be construed as a
waiver of any subsequent breach by Xxxxxxxx. 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
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Its: VP Corporate Development
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/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
