Noncompetition, Nondisclosure and Nonsolicitation Agreement
Exhibit
10.118
This
Noncompetition, Nondisclosure and Nonsolicitation Agreement (this “Agreement”)
is made as of the 26th day of February, 2008, by and among Xfone, Inc., a Nevada
corporation (“Purchaser”), on the one hand, and each of Telephone Electronics
Corporation, a Mississippi corporation (“TEC”), Xxxxxx X. Fail, Xxxxx Xxxxxxxx,
Xxxxxx Xxxxxx, Xxxx Xxxxxx, and Xxxxxx Xxxxx (each a “TEC Affiliate” and
collectively the “TEC Affiliates”), severally and not jointly, each of such
individuals being an officer or director of TEC or an affiliate of TEC,
including NTS (as defined herein), on the other hand. TEC and the TEC
Affiliates shall each be referred to herein from time to time as a “TEC Party,”
and collectively as the ‘TEC Parties.”
RECITALS
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A.
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TEC
owns 799,214 shares of the common stock which constitutes 63.5 percent
(63.5%) of all the issued and outstanding Equity Interests of NTS
Communications, Inc. (together with its subsidiaries “NTS”), a Texas
corporation, and is the single largest shareholder of NTS.
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B.
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Concurrently
with the execution and delivery of this Agreement, Purchaser is purchasing
from TEC all of the Equity Interests owned by TEC in NTS pursuant
to the
terms and conditions of a stock purchase agreement made as of the
22nd day
of August, 2007, as amended (the “Stock Purchase Agreement”), by and among
Purchaser, NTS and the shareholders of NTS identified as the “Sellers” on
the signature pages of the Stock Purchase Agreement.
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C.
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Section
2.5(q) of the Stock Purchase Agreement requires that a noncompetition
agreement in the form of this Agreement be executed and delivered
by the
TEC Parties to Purchaser on or before the Closing.
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D.
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This
Agreement represents all of the agreements and obligations of any
of the
TEC parties arising under Section 2.5 of the Stock Purchase Agreement
or
otherwise with regard to the subject matter hereof, including the
Confidential Information (as subsequently defined) of NTS.
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AGREEMENT
The
parties, intending to be legally bound, agree as follows:
1.
DEFINITIONS
“Confidential
Information,” is defined in Section 2.
Capitalized
terms not expressly defined in this Agreement shall have the meanings ascribed
to them in the Stock Purchase Agreement.
2.
ACKNOWLEDGMENTS BY THE TEC PARTIES
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Each
of
the TEC Parties acknowledge that he (or it) has occupied a position of trust
and
confidence with TEC or NTS prior to the date hereof and has had access to and
has become familiar with the following, any and all of which constitute
confidential information of NTS (collectively the “Confidential Information”):
Except as provided in the final sentence of this paragraph, (a) any and all
trade secrets concerning the business and affairs of NTS, including product
specifications, data, compositions, processes, past, current and planned
research and development, current and planned construction, products and
distribution methods and processes, customer lists, current and anticipated
customer requirements, price lists, market studies, business plans, computer
software and programs (including object code and source code), database
technologies, systems, structures architectures processes, improvements,
devices, know-how, discoveries, concepts, methods and information of NTS’s
business and any other information, however documented, of NTS that is a trade
secret within the meaning of applicable law as of the date hereof; (b) any
and
all information concerning the business and affairs of NTS (which includes
historical financial statements, financial projections and budgets, historical
and projected sales, capital spending budgets and plans, personnel training
and
techniques and confidential information related to NTS’ customers, however
documented; and (c) any and all notes, analysis, compilations, studies,
summaries and other material prepared by or for NTS containing or based, in
whole or in part, upon any information included in the foregoing which has
been
treated as confidential by NTS or the creator thereof, as the case may
be. Notwithstanding the foregoing, the Confidential Information shall
not include: (i) information that has been provided to TEC or any TEC Party
solely in connection with such person or entity’s (or such person’s status as an
officer or agent of another business entity) commercial dealings with NTS,
outside of the TEC Party’s relationship of authority or trust with NTS, if any,
(ii) information readily ascertainable or compilable from the books and records
of any other business or governmental entity, other than those provided to
a TEC
Party in confidence by NTS, (iii) information that relates to the business
dealings between TEC and its affiliates and the TEC Parties, on the one hand,
and NTS on the other, other than any information received in such TEC Party’s
service as an officer or director of NTS, (iv) information which is also the
confidential information of TEC or any of the TEC Parties, or their respective
Affiliates.
Each
of
the TEC Parties acknowledge that (a) the business of NTS relating to the use
and
operation of all its assets prior to Closing (the “Business”) is interstate in
scope but relates primarily to that part of the State of Texas west of a line
drawn from the Xxxxxxx County Courthouse to the Jefferson County Court House
(the “Primary Market”); (b) its products and services related to such Business
are marketed in several regions of the United States, including the Primary
Market; (c) NTS’ s Business prior to Closing competes with other businesses that
are or could be located in any part of the United States; (d) Purchaser has
required that each of the TEC Parties make the covenants set forth in Sections
3
and 4 of this Agreement as a condition to the closing of the Stock Purchase
Agreement; (e) the provisions of Sections 3 and 4 of this Agreement are
reasonable and necessary to protect and preserve NTS and its Business and the
Purchaser’s interests in and right to the use and operation of the Business from
and after Closing; and (f) Purchaser would be irreparably damaged if any of
the
TEC Parties were to breach the covenants set forth in Sections 3 and 4 of this
Agreement.
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3.
CONFIDENTIAL INFORMATION
Each
of
the TEC Parties acknowledge and agree that the protection of the Confidential
Information is necessary to protect and preserve the value of the Business.
Therefore, each of the TEC Parties hereby agree not to disclose to any
unauthorized Persons or use for his or its own account or for the benefit of
any
third party any Confidential Information, whether or not such information is
embodied in writing or other physical form or is retained in the memory any
of
the TEC Parties, without Purchaser’s written consent, unless and to the extent
that the Confidential Information is or becomes generally known to by the public
other than as a result of the TEC Party’s fault, the provisions hereof are
waived by Purchaser or the disclosure in question is required by applicable
law
or process of law. Notwithstanding the foregoing, however, no
provision of this agreement shall be deemed to limit the ability of any TEC
Party to provide truthful testimony or to offer truthful information to any
agent of the United States Government or any member of the United States
Congress.
4.
NONCOMPETITION AND NONSOLICITATION
As
an
inducement for Purchaser to enter into the Stock Purchase Agreement and as
additional consideration for the consideration to be paid to TEC under the
Stock
Purchase Agreement, each of the TEC Parties agree that:
(a)
For a period of two (2) years after the Closing:
(i)
TEC will not, directly or indirectly, engage or invest in, own, manage, operate,
finance, control or participate in the ownership, management, operation,
financing or control of, be employed by, associated with or in any manner
connected with, or render services or advice or other aid to, or guarantee
any
obligation of, any Person, engaged in or planning to become engaged in providing
to any Primary Market Customer, local or long distance telecommunications
services or any other products or services which compete with the products
and
services provided by NTS prior to the Closing (“Competitive Products”),
including without limitation, local, long distance, broadband, dial up data
services, wireless, DSL, Voice-over-Internet Protocol (VoIP). TEC
agrees that this covenant is reasonable with respect to its duration,
geographical area and scope. For the purposes hereof, a “Primary
Market Customer” shall be any individual resident in, or any business entity
whose principal executive offices are located in, the Primary Market
Area.
(ii)
The TEC Parties, severally and not jointly, will not directly or indirectly,
engage or invest in, own, manage, operate, finance, control or participate
in
the ownership, management, operation, financing or control of, be employed
by,
associated with or in any manner connected with, or render services or advice
or
other aid to, or guarantee any obligation of, any Person, other than a Current
Competitor, engaged in or planning to become engaged in providing to any Primary
Market Customer, local or long distance telecommunications services or any
other
products or services which compete with the Competitive Products, including
without limitation, local, long distance, broadband, dial up data services,
wireless, DSL, Voice-over-Internet Protocol (VoIP). The TEC Parties agree that
this covenant is reasonable with respect to its duration, geographical area
and
scope. For the purposes hereof, the “Current Competitors” shall mean those
business entities of which a TEC Party is the record or beneficial owner of
less
than all of such entity’s debt or equity securities as of the date hereof, and
which iscurrently
offering or proposing to offer Competitive Products in the Primary Market,
including but not limited to Xxxxx Xxxxx Telecommunications, Inc.
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(iii)
Each of the TEC Parties agree not to, directly or indirectly, (A) induce or
attempt to induce any employee of NTS or any NTS employee who becomes an
employee of Purchaser in connection with the purchase of the Business to leave
the employ of NTS or Purchaser; (B) in any way interfere with the relationship
between Purchaser and any such employee of NTS or Purchaser; (C) employ or
otherwise engage as an employee, independent contractor or otherwise any such
employee of NTS or Purchaser at a time when such employee is an employee of
NTS
anywhere or Purchaser within the Primary Market; (D) induce or attempt to induce
any supplier, licensee or other Person, other than customers, to cease doing
business with NTS or in any way interfere with the relationship between any
such
supplier, licensee or other business entity and NTS, or (E) except that no
provision hereof shall limit the ability of the Current Competitors to compete
with NTS (other than through individual efforts of a TEC Party), induce or
attempt to induce any customer of NTS to cease doing business with NTS or in
any
way interfere with the relationship between any such customer and
NTS.
(iv)
Each of the TEC Parties agree that they (or it) will not, directly or
indirectly, solicit the business of any Person who they know to be a customer
of
NTS, whether or not the TEC Party had personal contact with such Person prior
to
Closing; provided that such limitation shall not limit the ability of the
Current Competitors to compete with NTS other than through the personal efforts
of a TEC Party.
(b)
In the event of a breach by any of the TEC Parties of any covenant set forth
in
Subsection 4(a) of this Agreement, the term of such covenant will be extended
by
the period of the duration of such breach; and
(c)
Neither TEC nor any of the TEC Parties will, at any time during or after the
two
year period, intentionally disparage Purchaser, NTS, or the business conducted
by Purchaser or any person known by TEC or such TEC Party, respectively, to
be a
director or officer of NTS or Purchaser.
5.
REMEDIES
If
any of
the TEC Parties breaches the covenants set forth in Sections 3 or 4 of this
Agreement, Purchaser will be entitled to the following remedies:
(a)
Damages from TEC and the TEC Party who breached such covenants;
(b)
In addition to its right to damages and any other rights it may have, to obtain
injunctive or other equitable relief to restrain any breach or threatened breach
or otherwise to specifically enforce the provisions of Sections 3 and 4 of
this
Agreement, it being agreed that money damages alone would be inadequate to
compensate Purchaser and would be an inadequate remedy for such
breach.
(c)
Notwithstanding any provision hereof to the contrary, the obligations of TEC
and
the TEC Parties hereunder are several and not joint; provided that the foregoing
shall not limitTEC’s
liability, if any, for the conduct of its directors, officers, employees and
agents acting in such capacity.
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(d)
The rights and remedies of the parties to this Agreement are cumulative and
not
alternative.
6.
SUCCESSORS AND ASSIGNS
This
Agreement will be binding upon Purchaser and each TEC Party and will inure
to
the benefit of Purchaser and its successors.
7.
WAIVER
Neither
the failure nor any delay by any party in exercising any right, power or
privilege under this Agreement will operate as a waiver of such right, power
or
privilege, and no single or partial exercise of any such right, power or
privilege will preclude any other or further exercise of such right, power
or
privilege or the exercise of any other right, power or privilege. To the maximum
extent permitted by applicable law, (a) no claim or right arising out of this
Agreement can be discharged, in whole or in part, by a waiver or renunciation
of
the claim or right except in writing; (b) no waiver that may be given by a
party
will be applicable except in the specific instance for which it is given; and
(c) no notice to or demand on one party will be deemed to be a waiver of any
obligation of such party, or of the right of the party giving such notice or
demand to require the other party, to take further action without notice or
demand as provided in this Agreement.
8.
GOVERNING LAW
This
Agreement will be governed by the laws of the State of Mississippi.
9.
JURISDICTION; SERVICE OF PROCESS
Any
action or proceeding seeking to enforce any provision of, or based upon any
right arising out of, this Agreement may be brought against any of the parties
in the courts of the State of Mississippi, County of Xxxxxx, and each of the
parties consents to the jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any objection
to
venue laid therein. Process in any action or proceeding referred to in the
preceding sentence may be served on any party anywhere in the
world.
10.
SEVERABILITY
Whenever
possible, each provision and term of this Agreement will be interpreted in
a
manner to be effective and valid, but if any provision or term of this Agreement
is held to be prohibited or invalid, then such provision or term will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating or affecting in any manner whatsoever the remainder of such
provision or term or the remaining provisions or terms of this Agreement. If
any
of the covenants set forth in Section 4 of this Agreement are held to be
unreasonable, arbitrary or against public policy, such covenants will be
considered divisible with respect toscope,
time and geographic area, and in such lesser scope, time and geographic area,
will be effective, binding and enforceable against the TEC Parties to the
greatest extent permissible.
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11.
COUNTERPARTS
This
Agreement may be executed in one or more counterparts, each of which will be
deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same agreement.
12.
SECTION HEADINGS, CONSTRUCTION
The
headings of sections in this Agreement are provided for convenience only and
will not affect its construction or interpretation. All references to “Section”
or “Sections” refer to the corresponding Section or Sections of this Agreement
unless otherwise specified. All words used in this Agreement will be construed
to be of such gender or number as the circumstances require. Unless otherwise
expressly provided, the word “Including” does not limit the preceding words or
terms.
13.
NOTICES
All
notices, consents, waivers and other communications under this Agreement must
be
in writing and will be deemed to have been duly given when (a) delivered by
hand
(with written confirmation of receipt); (b) sent by facsimile (with written
confirmation of receipt), provided that a copy is also promptly mailed by
registered mail, return receipt requested; or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as
a
party may designate by notice to the other parties):
Xxxxxx
X.
Fail
c/o
Telephone Electronics Corporation
000
X.
Xxxxxxx Xxxxxx
Xxxxxxx,
XX 00000
Telephone
No: (000) 000-0000
Facsimile
No: (000) 000-0000
Email:
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with
a copy to:
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Xxxxxxx
Xxxxxx L.L.P.
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000
Xxxx Xxxxxx
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Xxxxx
0000
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Xxxxxx,
XX 00000-0000
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Attention:
Xxxxxxx X. Xxxx
Telephone
No: (000) 000-0000
Facsimile
No: (000) 000-0000
Email: xxxxx@xx.xxx
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Xxxxx
Xxxxxxxx
c/o
Telephone Electronics Corporation
000
X.
Xxxxxxx Xxxxxx
Xxxxxxx,
XX 00000
Telephone
No: (000) 000-0000
Facsimile
No: (000) 000-0000
Email: cchelette
@xxxxxxxxxxxx.xxx
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with
a copy to:
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Xxxxxxx
Xxxxxx L.L.P.
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000
Xxxx Xxxxxx
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Xxxxx
0000
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Xxxxxx,
XX 00000-0000
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Attention:
Xxxxxxx X. Xxxx
Telephone
No: (000) 000-0000
Facsimile
No: (000)
000-0000
Email:
xxxxx@xx.xxx
Xxxxxx
Xxxxxx
c/o
Telephone Electronics Corporation
000
X.
Xxxxxxx Xxxxxx
Xxxxxxx,
XX 00000
Telephone
No: (000) 000-0000
Facsimile
No: (000) 000-0000
Email: xxxxxxx@xxx.xxx
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with
a copy to:
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Xxxxxxx
Xxxxxx L.L.P.
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000
Xxxx Xxxxxx
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Xxxxx
0000
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Xxxxxx,
XX 00000-0000
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Attention:
Xxxxxxx X. Xxxx
Telephone
No: (000) 000-0000
Facsimile
No: (000)
000-0000
Email:
xxxxx@xx.xxx
Xxxx
Xxxxxx
c/o
Telephone Electronics Corporation
000
X.
Xxxxxxx Xxxxxx
Xxxxxxx,
XX 00000
Telephone
No: (000) 000-0000
Facsimile
No: (000)
000-0000
Email:
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with
a copy to:
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Xxxxxxx
Xxxxxx L.L.P.
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000
Xxxx Xxxxxx
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Xxxxx
0000
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Xxxxxx,
XX 00000-0000
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Attention:
Xxxxxxx X. Xxxx
Telephone
No: 601) 354-9070
Facsimile
No: (000)
000-0000
Email:
xxxxx@xx.xxx
Xxxxxx
Xxxxx
c/o
Telephone Electronics Corporation
000
X.
Xxxxxxx Xxxxxx
Xxxxxxx,
XX 00000
Telephone
No: (000) 000-0000
Facsimile
No: (000)
000-0000
Email:
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with
a copy to:
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Xxxxxxx
Xxxxxx L.L.P.
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000
Xxxx Xxxxxx
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Xxxxx
0000
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Xxxxxx,
XX 00000-0000
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Attention:
Xxxxxxx X. Xxxx
Telephone
No: (000) 000-0000
Facsimile
No: (000)
000-0000
Email:
xxxxx@xx.xxx
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TEC:
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Telephone
Electronics Corporation
Attention: Xxxxxx X. Failc/o
Telephone Electronics Corporation
000
X.
Xxxxxxx Xxxxxx
Xxxxxxx,
XX 00000
Telephone
No: (000) 000-0000
Facsimile
No: (000)
000-0000
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with
a copy to:
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Xxxxxxx
Xxxxxx L.L.P.
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000
Xxxx Xxxxxx
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Xxxxx
0000
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Xxxxxx,
XX 00000-0000
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Attention:
Xxxxxxx X. Xxxx
Telephone
No: (000) 000-0000
Facsimile
No: (000)
000-0000
Email:
xxxxx@xx.xxx
Purchaser: Xfone,
Inc.
Xxxxxxxxx
Xxxxx
000
Xxxx Xxxx
Xxxxxx,
X000XX
Xxxxxx
Xxxxxxx
Attention: Xxx
Xxxxxxxxx
Telephone: x00
000-000-0000
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Facsimile: x00
000-000-0000
Email: xxx@Xxxxx.xxx
and
Xfone,
Inc.
c/o
Xfone
USA, Inc.
0000
Xxxxxxxx Xxxxx, Xxxxx
000
Xxxxxxx,
XX 00000
Attention: Xxxx
Xxxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Email:
xxxxxxxx@xxxxxxx.xxx
with
a mandatory copy
to:
Xxxxxxx
Xxxxxx Winter & Stennis,
P.A.
000
Xxxxx Xxxxx Xxxxxx
(39202)
P.
O. Xxx 000
Xxxxxxx,
XX
00000-0000
Attention: Xxxx
X. Xxxxxx
Telephone: 000-000-0000
Facsimile: 601-949-4804
Email: xxxxxxx@xxxxxxxxxxxxx.xxx
14.
ENTIRE AGREEMENT
This
Agreement and the Stock Purchase Agreement, together with all exhibits and
schedules attached thereto, constitute the entire agreement between the parties
with respect to the subject matter of this Agreement and supersede all prior
written and oral agreements and understandings between the parties with respect
to the subject matter of this Agreement. This Agreement may not be amended
except by a written agreement executed by the party to be charged with the
amendment.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
[Signature
Pages Follow]
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IN
WITNESS WHEREOF, the undersigned, Xxx Xxxxxxxxx, has executed this Agreement
in
his capacity indicated for and on behalf of Purchaser on this 26th day of
February, 2008.
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PURCHASER:
XFONE,
INC.
By: /s/
Xxx
Xxxxxxxxx
Printed
Name: Xxx
Xxxxxxxxx,
Title: President
and CEO
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IN
WITNESS WHEREOF, the undersigned, Xxxxxx X. Fail, has executed and
delivered this Agreement individually and in his capacity indicated
for and on behalf of TEC on this 26th day of Febraury, 2008.
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TEC
PARTIES:
TELEPHONE
ELECTRONICS CORPORATION
By: /s/
Xxxxxx X.
Fail
Printed
Name: Xxxxxx
X. Fail,
Title: President
and CEO
/s/
Xxxxxx X. Fail
Xxxxxx
X.
Fail,
Individually
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IN
WITNESS WHEREOF, the undersigned, Xxxxx Xxxxxxxx, has executed and delivered
this Agreement on this 26th day of February, 2008.
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TEC
PARTY:
/s/
Xxxxx Xxxxxxxx
Xxxxx
Xxxxxxxx,
Individually
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IN
WITNESS WHEREOF, the undersigned, Xxxxxx Xxxxxx, has executed and delivered
this
Agreement on this 26th day of Febraury, 2008.
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TEC
PARTY:
/s/
Xxxxxx Xxxxxx
Xxxxxx
Xxxxxx,
Individually
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IN
WITNESS WHEREOF, the undersigned, Xxxx Xxxxxx, has executed and delivered this
Agreement on this 26th day of February, 2008.
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TEC
PARTY:
/s/
Xxxx Xxxxxx
Xxxx
Xxxxxx,
Individually
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IN
WITNESS WHEREOF, the undersigned, Xxxxxx Xxxxx, has executed and delivered
this
Agreement on this 26th day of February, 2008.
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TEC
PARTY:
/s/
Xxxxxx
Xxxxx
Xxxxxx
Xxxxx,
Individually
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