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NON-SOLICITATION AGREEMENT
This Agreement is made and entered into this 29 day of June, 1995, by
and among MASADA SECURITY, INC., a Delaware corporation ("Masada") and GRB
SECURITY SYSTEMS, a sole proprietorship ("Seller").
RECITALS
Pursuant to the terms of an Asset Purchase Agreement dated as of
June 29, 1995 (the "Purchase Agreement"), Masada is purchasing certain of the
assets and properties of Seller.
Seller 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
Seller not to solicit Masada's business.
As an inducement to the consummation of the transactions evidenced by
the Purchase Agreement, Seller 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.
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 is hereby acknowledged, and intending to be
legally bound, agree as follows:
Section 1. Non-Solicitation Covenant. Seller shall not in any
manner, directly or indirectly, through any corporation, partnership or any
other entity (i) solicit or provide security monitoring services to any person
or entity set forth on Schedules 1(a) and 1(c) to the Purchase Agreement, (ii)
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(c) to the Purchase Agreement, or (iii) otherwise take any action which
would adversely affect Masada's interest in the Alarm Accounts and Other
Contracts (as such terms are defined in the Purchase Agreement) purchased from
Seller.
Section 2. Consideration. Seller acknowledges that the consideration
paid to it pursuant to the Purchase Agreement constitutes sufficient and
adequate consideration for the execution and delivery to Masada of this
Agreement.
Section 3. Remedies for Breach. Seller recognizes that in the event
of a breach of the covenants herein contained, it will be difficult to
determine the damages which would be suffered by Masada, and therefore, Seller
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
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breach of the covenants herein contained and if Masada is the prevailing party
in such litigation, then Masada shall be entitled to recover in addition to
damages and injunctive relief, all costs incurred, including reasonable
attorneys' fees. It is also understood that in the event of litigation arising
from a breach of the covenants herein contained, and if Seller is the
prevailing party in such litigation, then Seller shall be entitled to all costs
incurred, including reasonable 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 thereof shall not be invalidated or rendered
unenforceable or otherwise adversely affected. Without limiting the generality
of the foregoing, if the provisions of non-solicitation covenant 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. Seller acknowledges that the
covenants contained herein are unique and personal, and that Seller 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 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, XX 00000
Attention: Xxxxx X. Xxxxxxx
TELECOPY: 0-000-000-0000
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WITH COPY TO:
Xxxx & Xxxxxx
3100 SouthTrust Tower
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: W. Xxx Xxxxxxx, Esq.
TELECOPY: (000) 000-0000
IF TO SELLER AT:
GRB Security Systems
0000 Xxxxxx Xxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx
TELECOPY:
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WITH COPY TO:
Miller, Dollarhide, Xxxxxx & Xxxx
Second Floor, 000 Xxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
(000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
TELECOPY: (000) 000-0000
or at such other address as the party may designate by 10 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 Seller shall not operate or be construed as a
waiver of any subsequent breach by Seller. No waiver shall be valid unless in
writing and signed by an authorized representative of Masada.
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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 Oklahoma, excluding its
conflict of laws principles.
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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GRB SECURITY SYSTEMS
By: /s/ Xxxx X. Xxxxx
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Its: Owner
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