NON-COMPETITION AGREEMENT
Non-Competition Agreement ("Agreement") dated as of ____________, 1998
between Advanced Communications Group, Inc. (the "Company"), a Delaware
corporation and Xx. Xxx X. Xxxxxxxxx ("Xxxxxxxxx"), a resident in the State of
Texas.
WHEREAS, the Company intends to conduct an initial public offering of
its shares of common stock ("Shares") in conjunction with the consummation of
the acquisition of certain target companies (the "Transaction").
WHEREAS, the Company and Xxxxxxxxx are entering into this Agreement to
establish certain arrangements with respect to the relationships between them.
WHEREAS, the Company and Xxxxxxxxx believe that these arrangements
will be in the best interests of the Company and all of its stockholders
including Xxxxxxxxx.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
1.1 "Consolidation Partners" shall mean Consolidation Partners L.L.C.,
a Texas limited liability company.
1.2 "CPFF" shall mean Consolidation Partners Founding Fund, L.L.C., a
Texas limited liability company.
1.3 "Disinterested Directors" means directors of the Company who have
no financial interest in and are not otherwise associated with CPFF,
Consolidation Partners and any other affiliate of Xxxxxxxxx, and who are
"disinterested directors" as that term is used in Section 144 of the Delaware
General Corporate Law.
ARTICLE II
NON-COMPETITION
2.1 Non-Competition. For a period of five (5) years from the date of
this Agreement, Xxxxxxxxx shall not directly or indirectly (through CPFF,
Consolidation Partners or otherwise)
own, manage, operate, finance, or have a material financial interest in, or be
employed as an employee, agent or consultant by any telecommunications business
engaged in any line of business conducted by the Company at the date of this
Agreement in any service area in which the Company operates at the date of this
Agreement provided that he may own a 5% or less interest in any publicly traded
telecommunications company.
2.2 Consideration. As consideration for the covenant set forth in
Section 2.1 above, the Company will pay Xxx X. Xxxxxxxxx One Million Seven
Hundred and Fifty Thousand Dollars ($1,750,000) in cash upon his execution and
delivery of this Agreement.
ARTICLE III
MISCELLANEOUS
3.1 Remedies. Xxxxxxxxx and the Company acknowledge and agree that (i)
the provisions of this Agreement are reasonable and necessary to protect the
proper and legitimate interests of the parties hereto, and (ii) the parties
would be irreparably damaged in the event any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that each party shall be entitled
to preliminary and permanent injunctive relief to prevent breaches of the
provisions of this Agreement by the other party (or its affiliates) without the
necessity of proving actual damages or of posting any bond, and to enforce
specifically the terms and provisions hereof and thereof in any court of the
United States or any state thereof having jurisdiction, which rights shall be
cumulative and in addition to any other remedy to which the parties may be
entitled hereunder or at law or equity.
3.2 Notices. All notices, and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, sent by
documented overnight delivery service or, to the extent receipt is confirmed,
facsimile, to the appropriate address or facsimile number set forth below (or
at such other address or facsimile number for a party as shall be specified by
like notice):
if to Xxxxxxxxx:
with copy to:
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if to the Company:
3.3 Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. The parties hereto agree that they will use
their best efforts at all times to support and defend this Agreement.
3.4 Amendments. This Agreement may be amended only by an agreement in
writing signed by each of the parties hereto; provided, however, that any
amendment executed by the Company must prior thereto be approved by a majority
of the Disinterested Directors.
3.5 Governing Law. This Agreement shall be governed and controlled as
to validity, enforcement, interpretation, construction, effect and in all other
respects by the internal laws of the State of Delaware without regard to its
conflict of law rules and principles.
3.6 Descriptive Headings. Descriptive headings are for convenience
only and shall not control or affect the meaning or construction of any
provision of this Agreement.
3.7 Counterparts; Facsimile Signatures. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
bears the signatures of each of the parties hereto. This Agreement may be
executed in any number of counterparts, each of which shall be an original as
against the party whose signature appears thereon, or on whose behalf such
counterpart is executed, but all of which taken together shall be one and the
same agreement. A facsimile copy of a signature of a party to this Agreement or
any such counterpart shall be fully effective as if an original signature.
3.8 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the successors and assigns of the
parties hereto.
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IN WITNESS WHEREOF, Advanced Communications Group, Inc. and Xxx X.
Xxxxxxxxx have executed this Non-Competition Agreement as of the date first
above written.
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Xxx X. Xxxxxxxxx
Advanced Communications Group, Inc.
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By: Xxxxxxx X. Xxxxxxx, President and
Chief Executive Officer
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