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EXHIBIT 10.16
NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
THIS NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
("Agreement") is made and entered into as of the 3rd day of April, 1998, by and
between HIGH SPEED ACCESS NETWORK, INC., a Delaware corporation (the "Company"),
and JOSEPH S. GANS, III ("Founder").
RECITAL:
The Company, Founder and Broadband Solutions, LLC
("Investor:") are parties to a Convertible Preferred Stock Purchase Agreement
dated April 3, 1998, under which certain of the Company's and Investor's
obligations are conditioned upon the execution and delivery by Founder and the
Company of this Agreement.
NOW, THEREFORE, it is agreed by and between the parties hereto
as follows:
1. COVENANTS NOT TO SOLICIT OR COMPETE.
A. NON-COMPETITION. Founder agrees that for the period he
serves as a director of the Company and for a two-year period immediately
following the termination of Founder's services as a director of the Company for
any reason whatsoever, he shall not, within the United States of America (the
"Territory"), engage in any of the following activities:
[1] Directly or indirectly enter into the employ of
or render any service to or act in concert with any person,
partnership, corporation or other entity that competes directly or
indirectly with the Company;
[2] Directly or indirectly engage in any such
competitive business or render any such service on his own account; or
[3] Become interested in any such competitive
business or service directly or indirectly as an individual, partner,
shareholder, director, officer, principal, agent, employee, consultant,
creditor or in any other relationship or capacity; provided, that [i]
the purchase of a publicly traded security of a corporation engaged in
such business or service shall not in itself be deemed violative of
this Agreement so long as Founder does not own, directly or indirectly,
more than 3% of the securities of such corporation, [ii] Founder's
direct or indirect ownership of up to 6% of the equity securities of
Penteledata, a Pennsylvania entity, and his services as a director of
such entity shall not in itself be deemed violative of this Agreement
so long as Founder does not actively assist such entity in marketing or
other activities outside of the State of Pennsylvania; and [iii]
Founder's services as a director of either of National
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Cable Television Association or CableLabs shall not in itself be deemed
violative of this Agreement so long as Founder does not actively assist
either such entity in any activity detrimental to the Company.
B. NON-SOLICITATION. Founder agrees that for the period he
serves as a director of the Company and for a two-year period immediately
following the termination of his services as a director of the Company for any
reason whatsoever, he shall not (other than in the regular course of the
Company's business) solicit, directly or indirectly, business of the type then
being performed by the Company from any person, partnership, corporation or
other entity which is a customer of the Company at the time Founder's services
with the Company terminates, or was such a customer within the one-year period
immediately prior thereto, or to the knowledge of Founder at the date of
termination of such services, is a person, partnership, corporation or other
entity with which the Company plans to do a substantial amount of business
within the one-year period after such termination of services.
C. AFFILIATES. For purposes of this Section 1, "Company" as
used herein shall mean and include the Company and any affiliate of the Company.
2. NON-INDUCEMENT AND NON-DISCLOSURE.
A. NON-INDUCEMENT. Founder agrees that for the period he
serves as a director of the Company and for a two-year period immediately
following the termination of his services as a director of the Company for any
reason whatsoever, he shall not directly or indirectly, individually or on
behalf of persons not parties to this Agreement, aid or endeavor to solicit or
induce any of the Company's employees to leave their employment with the Company
or in order to accept employment with Founder or another person, partnership,
corporation or other entity.
B. NON-DISCLOSURE. At no time shall Founder divulge, furnish
or make accessible to anyone (other than in the regular course of the Company's
business) any knowledge or information with respect to confidential information
or data of the Company, or with respect to any confidential information or data
of any of the customers of the Company, or with respect to any other
confidential aspect of the business or products or services of the Company or
its customers.
C. AFFILIATES. For purposes of this Section 2, "Company" as
used herein shall mean and include the Company and any affiliate of the Company.
3. INJUNCTIVE RELIEF FOR BREACH: ENFORCEABILITY. Founder agrees that
Company may not be adequately compensated by damages for a breach by Founder of
any of the covenants contained in Sections 1 and 2, and that, in addition to all
other remedies, the Company shall be entitled to injunctive relief and specific
performance. In such event, the periods of time referred to in Sections 1 and 2
shall be deemed extended for a period equal to the respective period during
which Founder is in breach
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thereof, in order to provide for injunctive relief and specific performance for
a period equal to the full term thereof. The covenants contained in Sections 1
and 2 shall be construed as separate covenants, and if any court shall finally
determine that the restraints provided for in any such covenants are too broad
as to the geographic area, activity or time covered, said area, activity or time
covered may be reduced to whatever extent the court deems reasonable and such
covenants shall be enforced as to such reduced area, activity or time.
Founder shall indemnify and hold Company harmless from any
liability, loss, damage, judgment, cost or expense (including reasonable
attorneys' fees and expenses) arising out of or resulting from Founder's breach
of any covenants contained in this Agreement or his failure to perform a duty
hereunder.
4. NO OTHER NON-COMPETE AGREEMENTS. Notwithstanding anything to the
contrary contained herein, Founder hereby represents, warrants and covenants to
Company that Founder (i) is not a party to nor bound by any non-competition,
non-solicitation, confidentiality or other agreement of any kind, which would
conflict with or prevent his employment by the Company, and (ii) has not, and
will not, wrongfully use any confidential information or know-how taken from
another employer. Founder hereby agrees to indemnify and hold the Company
harmless from any claim, loss, damage and expense hereafter incurred by the
Company as a result of any breach of the foregoing representations, warranties
or covenants made by Founder in this Section.
5. REPRESENTATIONS OF FOUNDER. The Founder hereby represents, warrants
and agrees with the Company that [A} the execution, delivery and performance of
this Agreement by the Founder (i) will not constitute a default under or
conflict with any agreement or instrument to which the Founder is a party or by
which he or his assets are bound, (ii) will not conflict with or violate any
order, judgment, decree, statute, ordinance or regulation applicable to the
Founder, and (iii) do not require the consent of any person or entity, [B] this
Agreement has been duly executed and delivered by the Founder and constitutes
the valid and binding agreement of the Founder enforceable against him in
accordance with its terms.
6. NOTICES. All notices and other communications hereunder shall be in
writing and shall be given or made by hand delivery, or by certified or
registered mail, return receipt requested, postage prepaid, or by telegram, as
follows, or to such other person or address as shall be hereafter designated by
notice given in accordance with this Section:
A. If to the Company: HSAnet, Inc.
Attention: Ron Pitcock
3800 Lark Bunting Lane
Littleton, Colorado 80127
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B. If to Founder: Joseph S. Gans, III
Gans Multimedia Partnership
217 East 9th Street
Hazelton, Colorado 18201
Any notice or other communication hereunder shall be deemed to have been duly
given or made if made by hand, when delivered against receipt therefor or when
attempted delivery shall be rejected, as the case may be, if made by letter,
upon deposit thereof in the mail, postage prepaid, registered or certified, with
return receipt requested, and if made by telegram, facsimile or reputable
overnight courier when sent. Notwithstanding the foregoing, any notice or other
communication hereunder which is actually received by a party hereto shall be
deemed to have been duly given or made to such party.
7. MISCELLANEOUS.
A. ASSIGNMENT. This is a contract for personal services by
Founder and may not be assigned by Founder. This Agreement shall inure to the
benefit of and be binding upon the Company and its successors and assigns.
B. WAIVER OF BREACH. The waiver by either party of a breach of
any provision of this Agreement by the other shall not operate or be construed
as a waiver of any subsequent breach.
C. ENTIRE AGREEMENT: CANCELLATION OF PRIOR AGREEMENTS. This
Agreement contains the entire agreement of the parties with respect to the
subject matter hereof. It may not be changed orally, but only by an amendment in
writing signed by the parties hereto. All prior agreements or understandings
concerning Founder's employment by the Company are hereby cancelled and
superseded by this Agreement.
D. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
the remainder of this Agreement.
E. HEADINGS. The headings contained in this Agreement are for
convenience only and shall not be deemed a part of this Agreement in construing
or interpreting the provisions hereof.
F. GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the laws of the Commonwealth of Kentucky as
applied to agreements among Kentucky residents entered into and performed in
Kentucky.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day, month and year first above written.
HIGH SPEED ACCESS NETWORK, INC.
By: /s/ HIGH SPEED ACCESS NETWORK, INC.
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Title:
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("Company")
/s/ JOSEPH S. GANS, III
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JOSEPH S. GANS, III
("Founder")