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EXHIBIT 6.3
NON-COMPETITION AND CONSULTING AGREEMENT
This NON-COMPETITION AND CONSULTING AGREEMENT (the "Agreement") is made and
entered into as of October 18, 1994, between CABLE LINK, INCORPORATED, an Ohio
corporation (the "Company"), and E. XXXX XXXXX ("Xxxxx").
R E C I T A L S:
WHEREAS, Xxxxx has heretofore been President of the Company and the Company
has heretofore employed Xxxxx as a full-time employee of the Company; and
WHEREAS, Xxxxx has resigned from his office with the Company and whereas
Xxxxx' employment as a full-time employee of the Company has been terminated;
and
WHEREAS, the Company desires to retain Xxxxx as a consultant to the Company
and obtain a commitment from Xxxxx to refrain from competing with the Company on
the terms hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth, the parties hereto, intending to be legally bound, agree as follows:
Section 1. Control Share Acquisition Act.
1.1. Condition. This Agreement and all the obligations and
duties of the parties hereunder are conditional upon the
Company obtaining the approval of the shareholders of the
Company in compliance with the provisions of the Ohio Control
Share Acquisition Act (the "Acquisition Act") as it applies to
the transactions (the "Transactions") contemplated by, and
arising out of, this Agreement, a Share Purchase Agreement
(the "Purchase Agreement") between Xxx Xxxxxx ("Binsky") and
Xxxxx and a Separation Agreement and General Release between
the Company and Xxxxx, both dated of even date herewith, and
the documents and instruments executed in connection with the
foregoing. This Agreement shall be null and void and of no
effect if the Company does not obtain shareholder approval of
the Transactions as contemplated by Section 3.3 of the
Purchase Agreement.
1.2. Effort. The Company shall use its best efforts to comply
with the provisions of the Acquisition Act in connection
with the Transactions.
Section 2. Employment as Consultant.
2.1. The Company hereby retains Xxxxx as a consultant to the
Company from the date hereof through and including December
31, 1998, subject to the terms hereinafter set forth.
2.2. At any time through the last day of the term of this
Agreement, Xxxxx shall consult with and advise the Company
with respect to the business engaged in by the Company at the
date hereof when, and as requested by, the Company from time
to time. Xxxxx shall determine the time, manner and place at
which the requested services shall be rendered to the Company
in his reasonable discretion and Xxxxx shall not be deemed to
be an employee of the Company for any purpose. The Company
shall not unreasonably request Xxxxx to perform services
hereunder that will conflict with Xxxxx' business or personal
schedule.
Section 3. Confidentiality and Assignment of Intellectual Property.
3.1. From the date hereof and thereafter, Xxxxx agrees to hold
in strictest confidence, and not use, or disclose to anyone,
other than when such disclosure is authorized in writing by
the Board of Directors of the Company, any trade secrets,
confidential knowledge, data or other proprietary information
of the Company which he now knows or hereafter learns of,
which by way of
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illustration and not limitation, includes scientific, technical
and business information relating to products, processes,
know-how, designs, formulas, methods, developmental or
experimental work, firmware, software (whether executable or
source code), improvements, discoveries, plans for research, new
products, marketing and selling, business plans, budgets and
unpublished financial statements, licenses, prices and costs,
suppliers and customers, and information regarding the skills
and compensation of employees of the Company. Xxxxx shall return
all writings, electronic recordings, or other copies or
facsimiles possessed by Xxxxx which include any such
confidential knowledge, data or other proprietary information of
the Company or other information as described above to an
executive officer of the Company within 10 days of the date
hereof and after such date, immediately upon the discovery of
such material in his possession. In addition, Xxxxx hereby
agrees that, within 10 days of the date hereof and after such
date, immediately upon the discovery of such material in his
possession , he will return to the Company all of its property
then in his possession and control, including but not limited to
all records, documents, financial information, equipment,
vehicles, disks, keys, and any other personal property of the
Company, and deliver all of the property and assets of any
employee benefit plan for the benefit of the employees of the
Company and all records in connection therewith which are in his
possession or under his control, or with respect to which he is
a fiduciary to the trustees of such plans as they have been
appointed by the Board of Directors. Company agrees that if it
learns that Xxxxx has any Company property it will promptly
notify him thereof, and Xxxxx shall return the property to the
Company within 10 days from receipt of the notice.
3.2. Except as otherwise provided in Section 4.2, Xxxxx hereby
assigns to the Company and agrees to execute, verify and deliver
such documents necessary to effect such assignment without
further payment or consideration, all of his right, title and
interest in and to any ideas, inventions, original works of
authorship, developments, improvements or trade secrets which he
may have solely or jointly conceived or reduced to practice, or
caused to be conceived or reduced to practice during the period
of his employment with the Company and while providing services
to the Company at any time during the term of this Agreement,
excluding only ideas, inventions, original works of authorship,
developments, improvements and trade secrets which:
(a) were not developed or produced using equipment, supplies,
facilities or trade secrets that belong to the Company, and
(b) do not relate to (i) the business of the Company as it is
currently conducted or as it was conducted during the term of
Xxxxx' employment by the Company or (ii) actual or currently
contemplated research or development conducted by the Company,
and
(c) were not developed or produced while providing services to
the Company during the term of this Agreement or during ordinary
business hours during the period of his employment with the
Company.
3.3. Xxxxx acknowledges and agrees that all original works of
authorship which were made by him (solely or jointly with
others) within the scope of his employment during his term of
employment with the Company or while providing services to the
Company at any time during the term of this Agreement which are
protectable by copyright are "works made for hire," as that term
is defined in the United States Copyright Act (17 U.S.C.,
Section 101).
3.4. Xxxxx agrees to assist the Company in every proper way to
obtain and from time to time enforce United States and foreign
proprietary rights, including patents and copyrights, relating
to any and all inventions, original works of authorship,
developments, improvements or trade secrets of the Company in
any and all countries. To that end, Xxxxx agrees to execute,
verify and deliver such documents and perform such other acts
(including appearing as a witness) as the Company may reasonably
request for use in applying for, obtaining, perfecting,
evidencing, sustaining and enforcing such proprietary rights and
the assignment thereof.
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Section 4. Non-Competition.
4.1. Scope of Covenant. From the date hereof and through and
including December 31, 1998 (the "Restriction Period"), Xxxxx
agrees and covenants that he will not: (a) engage or participate
in any portion of the United States of America (the "Restricted
Area"), in any activity or business which is the same or similar
to the business engaged in by the Company at the date hereof;
(b) serve as, act as, or be an employee, agent, consultant,
representative, officer, director or investor (other than as an
investor owning not more than 1% of the voting securities of any
corporation having more than 500 stockholders) with or of, or
receive any payment in the way of remuneration from, or loan,
pledge or give money directly or indirectly to, any Person or
Affiliate (as defined in Section 4.4) of a Person, which engages
or becomes engaged, within the Restricted Area, in any activity
or business which is the same or similar to the business engaged
in by the Company at the date hereof;
(c) without the written consent of the Company, directly or
indirectly, for himself, or on behalf of or in conjunction with
any Person, hire or endeavor to recruit or hire, as an employee,
consultant, agent or representative, any individual, except
Xxxxxxx Xxxxxxxx or Xxxxx Xxxxxxxx, who was an employee of the
Company within one year of the date that Xxxxx first hires or
endeavors to recruit or hire such individual;
(d) discourage or otherwise attempt to prevent any Person from
doing business with the Company; nor
(e) disparage, by any means and to any supplier or customer of
the Company.
4.2. Permissible Business Activity. Company agrees that Xxxxx is
the owner of the trade name "Life Quest" and that Xxxxx may
choose to engage in a business involving the dissemination of
health care and medical information and the sale of health care
and medical products and services under that trade name or other
related trade names yet to be obtained. Company agrees that
Xxxxx may retain all rights to promote and carry on this
business free of any claims of interference from the Company.
4.3. Partial Unenforceability. If it is determined that any term
of this Section 4 is unenforceable because of the duration or
geographic scope of such term, the duration or geographic scope
of such term shall be reduced to the maximum time and geographic
scope permitted by applicable law and as so reduced, such term
shall then be enforced.
4.4. Definition of "Affiliate" and "Person". An "Affiliate" of a
specified Person is a Person that directly, or indirectly
through one or more intermediaries, controls, is controlled by,
or is under common control with, the Person specified. A Person
shall be deemed to be an Affiliate of any other Person if (a) he
is an officer, director, partner, agent or attorney of such
other Person; (b) he is the beneficial owner of 10% or more of
any class of the equity securities of another Person; (c) he has
a substantial beneficial interest in or serves as trustee or in
a similar fiduciary capacity for such other Person; (d) it is an
employee benefit plan for the benefit of the employees of such
other Person or his Affiliates; or (e) such other Person (i) is
the parent, spouse, or minor child of the specified Person, or
(ii) shares the same house as the specified Person. "Person"
means any individual, corporation, partnership, limited
liability company, joint venture, trust, estate, unincorporated
association, government or government body.
Section 5. Consideration.
5.1. Payments for Non-Competition. In consideration of Xxxxx'
covenant not to compete with Company and Xxxxx' other covenants
and obligations hereunder, the Company shall pay $25,000 to
Xxxxx, payable in an initial installment of $4,861.08 and
thereafter payable in 29 monthly installments of $694.44.
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5.2. Payments for Consulting. In consideration of the consulting
services of Xxxxx hereunder and Xxxxx' other covenants and
obligations hereunder, the Company shall pay $350,000 to Xxxxx,
payable in an initial installment of $68,055.54 and thereafter
in 29 equal installments of $9,722.22.
5.3. Time for Payment. The first installment payment pursuant to
each of Section 5.1 and 5.2 shall be paid on October 18, 1995
and the remaining installments shall be paid on the first day of
each calendar month for the 29 months following such date.
Payments shall be made by mailing to Xxxxx at the address set
forth in Section 8.4 below a cashier's check payable to the
order of Xxxxx in the amount required by the previous sentence.
5.4. Reimbursement. The Company shall reimburse Xxxxx for his
reasonable out-of-pocket expenses which are first authorized by
the Company and are incurred by him in the performance of his
duties hereunder including expenses for travel and similar
items, promptly after the presentation by Xxxxx of an itemized
account of expenses and reasonable documentation thereof.
Section 6. Remedies.
6.1. Termination and Return of All Payments. If Xxxxx engages in
actions which constitute a material breach of his obligations
under Section 4 "Non-Competition" of this Agreement, which
actions are commenced before the first anniversary of this
Agreement, upon entry of a judgment, from which the appeal
period has expired without appeal or from which no appeal is
available, that such a breach has occurred; then Xxxxx shall
return to the Company all payments made by the Company to Xxxxx
under Section 5 of this Agreement before the entry of such
judgment, all payments made by the Company pursuant to the next
sentence of this Section 6.1 shall be returned to the Company,
and the Company shall not be obligated to make any further
payments to Xxxxx under Section 5 of this Agreement. If any
action or proceeding has been commenced to determine whether
Xxxxx has materially breached before the first anniversary of
this Agreement his obligations under Section 4 "Non-Competition"
of this Agreement, the Company may pay any amounts due to Xxxxx
under Section 5 of this Agreement into the court before which
such action or proceeding is pending and the Company shall not
be deemed to be in default of its obligations to Xxxxx under
Section 5 of this Agreement for the purposes of this or any
other agreement to which Xxxxx is a party. Upon the completion
of such action or proceeding, such court may direct the manner
of the disbursement of any such payments.
6.2. Injunction. Notwithstanding Section 6.1, Xxxxx and Company
specifically acknowledge and agree that the remedy at law for
any breach of his or its obligations set forth in this Agreement
shall be inadequate and that Xxxxx and the Company, in addition
to any other relief available to him or it, shall be entitled to
temporary and permanent injunctive relief without the necessity
of proving actual damage.
Section 7. Legal Matters.
7.1. Choice of Law. The validity, terms, performance and
enforcement of this Agreement shall be governed by those laws of
the State of Ohio which are applicable to agreements which are
negotiated, executed, delivered and performed solely in the
State of Ohio.
7.2. Jurisdiction, Venue, Service of Process. The State and
Federal District Courts located in Franklin County, Ohio shall
have exclusive jurisdiction and venue of any action or
proceeding arising out of or related to the negotiation,
execution, delivery, performance or breach of this Agreement or
any relationship or transaction between the parties hereto,
regardless of the framing of any cause of action as lying in
contract or tort or arising out of statute. The parties hereto
hereby irrevocably consent to the personal jurisdiction of such
courts, to such venue and to the service of process in the
manner provided for the giving of notices in this Agreement. The
parties hereto hereby waive all objections to such jurisdiction
and venue including those which might be based upon
inconvenience or the nature of the forum.
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7.3. Payment of Attorneys' Fees. If either party hereto
institutes any action or proceeding against the other relating
to a purported default under the provisions of this Agreement,
the non-prevailing party in such action or proceeding after such
judgment agrees to reimburse the prevailing party for the
reasonable expenses in excess of $25,000 for bringing such
action, including reasonable attorneys' fees and disbursements,
incurred by the prevailing party.
Section 8. Miscellaneous.
8.1. Integration. This Agreement sets forth the entire
understanding between the parties hereto with respect to the
subject matter hereof. There are no covenants, agreements,
understandings, representations or warranties (oral or written)
between the parties hereto relating to the subject matter of
this Agreement other than those set forth herein. There are no
oral conditions precedent to the effectiveness of this
Agreement.
8.2. Waivers and Amendments. No waiver of any right or remedy
under this Agreement and no amendment, change or modification of
the terms hereof or rescission or termination hereof shall be
binding on any party hereto unless it is in writing and is
signed by the party to be charged.
8.3. Severability. If any term or provision set forth in this
Agreement shall be invalid or unenforceable, the remainder of
this Agreement, or the application of such terms or provisions
to persons or circumstances, other than those to which it is
held invalid or unenforceable, shall be construed in all
respects as if such invalid or unenforceable term or provision
were omitted.
8.4. Notices. Any notice or other communication required or
permitted to be given under this Agreement shall be in writing
and deemed to be properly given when delivered in person or by
overnight courier:
If to the Company:
Cable Link, Incorporated
000 Xxxxxxx Xxxxxx, Xxxxx 0-X
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, President
with a copy to:
Schwartz, Kelm, Warren & Xxxxxxx
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
If to Xxxxx:
E. Xxxx Xxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
with a copy to:
Hamilton, Kramer, Xxxxx & Xxxxx
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Either party may change his or its address for notices in the manner set forth
above.
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8.5. Joint Preparation. This Agreement is to be deemed to have
been prepared jointly by the parties hereto, and any uncertainty
or ambiguity existing herein shall not be interpreted against
either party, but shall be interpreted according to the rules of
interpretation for arms-length agreements.
8.6. Rules of Construction. In this Agreement, unless the
context otherwise requires, words in the singular number include
the plural, and in the plural include the singular; and the
words of the masculine gender include the feminine and the
neuter, and when the sense so indicates, words of the neuter
gender may refer to any gender. The names of the parties hereto,
the date and the recitals first above written are part of this
Agreement. The captions and section numbers appearing in this
Agreement are inserted only as a matter of convenience. They do
no define, limit, construe or describe the scope or intent of
the provisions of this Agreement.
8.7. Counterparts. This Agreement may be executed in
counterparts, each of which when executed by the parties hereto
shall constitute an original and both of which together shall be
deemed one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
CABLE LINK, INCORPORATED
By:
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Xxxxxx X. Xxxxxxxx, President
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E. Xxxx Xxxxx
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