Exhibit 10.8
NON-COMPETITION AND NON-SOLICITATION AGREEMENT
THIS AGREEMENT made as of December 29, 2005 among Inphonic, Inc. and STAR NUMBER
INC., MOBILE TECHNOLOGY SERVICES, LLC (collectively, the "Covenantors") and
TELEPLUS WIRELESS, CORP. (the "Corporation") witnesses that:
WHEREAS Star Number Inc. ("SNI") and the Corporation have entered into an asset
purchase agreement made as of December 29, 2005 (the "Asset Purchase Agreement")
pursuant to which the Corporation has agreed to purchase from SNI certain assets
of SNI, upon the terms and conditions contained in the Asset Purchase Agreement;
WHEREAS Mobile Technology Services ("MTS") and the Corporation have entered into
a mobile virtual network enabler services agreement made as of December 29, 2005
(the "MVNE Agreement") pursuant to which MTS shall provide to the Corporation
MVNE services;
WHEREAS the execution and delivery of this Agreement is a condition precedent to
the obligation of the Corporation to complete the transactions contemplated in
the Asset Purchase Agreement;
AND WHEREAS capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Asset Purchase Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties agree as follows:
1. Definitions. In this Agreement, the following terms shall have the
meanings set out below unless the context requires otherwise:
(a) "Business" means the business of purchasing wholesale wireless
airtime minutes and reselling them directly to consumers;
(b) "Person" is to be broadly interpreted and includes an individual, a
company or corporation, a partnership, a trust, a firm, association,
syndicate, an unincorporated organization, the government of a
country or any political subdivision thereof, or any agency or
department of any such government, and the executors, administrators
or other legal representatives of an individual in such capacity.
2. Non-Competition. Subject to Section 10 hereof, the Covenantors hereby
covenant and agree with the Corporation that neither they nor any
Affiliate thereof will directly or indirectly, for a period of 36 months
from and after the Closing Date, either individually or in partnership or
jointly or in conjunction with any Person or Persons as principal,
shareholder or otherwise, within North America, carry on, be engaged in,
be interested in, be concerned with or be connected in any manner with the
ownership, management or control of, any business enterprise which is
engaged in the Business. By way of illustration and not limitation, no
Covenantor or any Affiliate thereof shall be prohibited from (i) entering
into agreements with third parties to provide mobile virtual network
enabler ("MVNE") services that include any or all of the aspects of the
Business, or (ii) enter into agreements with third parties for the
distribution of an MVNO service created by other third parties (by way of
example, and not limitation, Boost Mobile and Virgin Mobile)re-selling or
distributing pre-paid wireless airtime minutes (through pre-paid airtime
cards or any other means) for the benefit of MVNO or other customers.
3. Non-Solicitation. Subject to Section 10 hereof and notwithstanding
anything in this Agreement to the contrary, the Covenantors hereby
covenant and agree with the Corporation that neither they nor any
Affiliate thereof (i) will knowingly target for a period of 36 months from
and after the Closing Date, either individually or in partnership or
jointly or in conjunction with any Person or Persons as principal,
shareholder or otherwise, solicit any of the customers from the customer
lists forming part of the Purchased Assets for the purpose of offering any
services similar to or the same as the Business or (ii) solicit any of the
customers, present or past, of the Business during the term of the MVNE
Agreement and for a period of 60 months thereafter for the purpose of
offering any services similar to or the same as the Business; provided,
however, nothing shall prohibit or otherwise limit the ability of the
Covenantors to generally solicit any such customers through mass
solicitations not specifically or predominantly targeting such customers.
4. Severability. Each provision of this Agreement shall constitute a separate
and distinct covenant and shall be severable from all other such separate
and distinct covenants contained in this Agreement. If any of the
covenants therein contained shall be held unreasonable by reason of the
area, duration or type or scope of service covered by the said covenant,
then the said covenant shall be given effect to in such reduced form as
may be decided by any court of competent jurisdiction. Any provision of
this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to that jurisdiction, be ineffective to the extent of such
prohibition or unenforceability and shall be severed from the balance of
this Agreement, all without affecting the remaining provisions of this
Agreement or affecting the validity or enforceability of such provision in
any other jurisdiction.
5. Remedies. The Covenantors acknowledge that a breach by either of them of
any of the covenants contained in this Agreement would result in damages
to the Corporation that may not be adequately compensated for such damages
by monetary award alone. Accordingly, the Covenantors agree that in the
event of any such breach, in addition to any other remedies available at
law or otherwise, the Corporation shall be entitled as a matter of right
to apply to a court of competent jurisdiction for relief by way of
injunction, restraining order, decree or otherwise as may be appropriate
to ensure compliance by the Covenantors or any of their Affiliates with
the provisions of this Agreement. Any remedy expressly set out in this
Agreement shall be in addition to and not inclusive of or dependent upon
the exercise of any other remedy available at law or otherwise.
2
6. Reasonableness of Restrictions. The Parties agree that all restrictions in
this Agreement are necessary and fundamental to the protection of the
respective businesses of the Parties and are reasonable and valid. All
defences to the strict enforcement of this Agreement against the Parties
or any of their Affiliates are hereby waived.
7. Successors and Assigns. This Agreement shall enure to the benefit of, and
be binding on, the Parties and their respective successors and permitted
assigns. No Party may assign or transfer, whether absolutely, by way of
security or otherwise, all or any part of its respective rights or
obligations under this Agreement without the prior written consent of the
other Parties.
8. Notices. Any notice or other communication required or permitted to be
given or made under this Agreement shall be done in accordance with
Section 15.9 of the Asset Purchase Agreement.
9. Amendment. No amendment of this Agreement shall be effective unless made
in writing and signed by all the Parties.
10. Waiver. A waiver of any default, breach or non-compliance under this
Agreement shall not be effective unless in writing and signed by the Party
to be bound by the waiver. No waiver shall be inferred from or implied by
any failure to act or delay in acting by a Party in respect of any
default, breach or non-observance or by anything done or omitted to be
done by any other Party. The waiver by a Party of any default, breach or
non-compliance under this Agreement shall not operate as a waiver of that
Party's rights under this Agreement in respect of any continuing or
subsequent default, breach or non-observance (whether of the same or any
other nature).
11. Governing Law. The internal laws of the State of Delaware, irrespective of
its choice of law principles, shall govern the validity of this Agreement,
the construction of its terms, and the interpretation and enforcement of
the rights and duties of the Parties hereto. All disputes arising out of
this Agreement or the obligations of the Parties hereunder, including
disputes that may arise following termination of this Agreement, shall be
subject to the exclusive jurisdiction and venue of the Delaware State
courts of New Castle County, Delaware (or, if there is federal
jurisdiction, then the exclusive jurisdiction of the United States
District Court for the District of Delaware with venue thereof in the
division thereof in which New Castle County is located. EACH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO THE PERSONAL AND EXCLUSIVE
JURISDICTION AND VENUE OF SAID COURTS AND WAIVES TRIAL BY JURY AND ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING
WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE
SAME.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of
which taken together shall be deemed to constitute one and the same
instrument. Counterparts may be executed either in original or faxed form
and the Parties adopt any signatures received by a receiving fax machine
as original signatures of the Parties; provided, however, that any Party
providing its signature in such manner shall promptly forward to the other
Parties an original of the signed copy of this Agreement which was so
faxed.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
3
IN WITNESS WHEREOF the Parties have executed this Agreement as of the date first
above written.
STAR NUMBER, INC.
By: /s/ Frank C. Bennett
--------------------
Name:
Title:
I have the authority to bind the Corporation
MOBILE TECHNOLGY SERVICES, LLC.
By: /s/ Frank C. Bennett
--------------------
Name:
Title:
I have the authority to bind the Corporation
INPHONIC, INC.
By: /s/ Frank C. Bennett
--------------------
Name:
Title:
I have the authority to bind the Corporation
TELEPLUS WIRELESS, CORP.
By: /s/ Marius Silvasan
--------------------
Name:
Title:
I have the authority to bind the Corporation
4