Exhibit 10.22
NON-DISCLOSURE, NON-COMPETITION,
AND NON-SOLICITATION AGREEMENT
This Non-Disclosure,
Non-Competition, and Non-Solicitation Agreement (“
Agreement ”) is entered into effective as of April 1,
2004 (the “ Effective Date ”), by and between
Level 3 Communications, LLC, a Delaware limited liability company
(“Level 3” or the “Buyer”), on the one
hand, and ICG Communications, Inc. (the “Parent”), a
Delaware corporation, and ICG Telecom Group, Inc. (the
“Company”), a Delaware corporation, and for and on
behalf of any of their direct or indirect parents, subsidiaries,
successors, or Affiliates (collectively referred to as
“ICG” or the “Sellers”), on the other
hand.
RECITALS
A.
The Sellers are engaged in
conducting a dial-up ISP business whereby the Sellers provide
Internet access and other Internet-related services to Internet
service providers and their customers.
B.
The Buyer and Sellers are parties to
an Asset Purchase Agreement (the “Purchase Agreement”)
dated as of April 1, 2004, pursuant to which Level 3 is purchasing
from Sellers certain of Sellers’ assets (the “Acquired
Assets”) used or held for use by Sellers in conducting the
Sellers’ dial-up ISP business whereby the Company provides
dial-up Internet access to Internet service providers and their
customers, excluding the Company’s direct Internet access and
primary rate interface businesses (the “Business”), as
more fully described therein. Contemporaneous with this
Agreement, Buyer and Sellers are closing and consummating the
principal transactions contemplated by the Purchase
Agreement.
C.
Sellers acknowledge that the Buyer
would not enter into or close the Purchase Agreement without
Sellers’ agreement to the terms and conditions of this
Agreement, and the execution of this Agreement by Sellers is a
condition precedent to the Buyer’s obligation to close under
the Purchase Agreement.
AGREEMENT
NOW, THEREFORE , in
consideration of the Buyer’s execution and delivery of the
Purchase Agreement, the closing thereunder and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
ARTICLE 1
NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION
1.1
Non-Disclosure
. Sellers shall not disclose
or appropriate for their own use, or for the use of any third
party, at any time, any trade secrets or confidential or
proprietary information included in or related to the Acquired
Assets or the Business as previously operated by Sellers, whether
or not developed by Sellers including, without limitation,
information pertaining to the customers, vendors, prices, profits,
contract terms or operating procedures of Sellers relating to the
Business or the Acquired Assets; provided, however, that Sellers
may use
any such trade secrets and confidential or
proprietary information (a) if and to the extent used in their
businesses other than the Business and (b) in connection with
providing services pursuant to the Transition Services
Agreement.
1.2
Non-Competition
. For a period of three
(3) years from and after the Effective Date (the “
Restrictive Period ”), Sellers shall not engage,
directly or indirectly, through any other entity or with any person
(whether as an owner, shareholder, partner, member, director,
officer, employee, agent, investor, or otherwise), in any business
activity which is in competition with the Business conducted by
Buyer during the Restrictive Period. The foregoing
restrictions shall, however, apply only for a one-year period from
and after the Effective Date with respect to any successor of any
Seller who is not engaged in the same type of business as the
Business as of the Effective Date and shall not apply at all with
respect to any successor, other than Sellers and any of their
Affiliates as of the Effective Date, that is engaged in the same
type of business as the Business. Because Sellers’
Business is nationwide, Sellers agree that they will not so compete
anywhere in the United States (the “ Territory
”). Notwithstanding the foregoing, Sellers may, during
the 60-day period following the Effective Date, provide services in
the Business to those customers delineated on Schedule
1.02(c) of the Purchase Agreement, subject to and in accordance
with Section 5.08 of the Purchase Agreement; provided such services
shall be provided solely pursuant to the customer contracts listed
on such Schedule 1.02(c) and the amount of such service
shall not be materially greater than that provided to such
customers by Sellers during the 60-day period prior to the
Effective Date.
1.3
Non-Solicitation
. During the Restrictive
Period, without the prior written consent of the Buyer (which Buyer
may withhold in the exercise of its sole, absolute, and arbitrary
discretion), Sellers (including, without limitation, any
successors) shall not induce or solicit, directly or indirectly,
through any other entity or with any other person, (whether as an
owner, shareholder, partner, member, director, officer, employee,
agent, investor, or otherwise) any employee of the Buyer or its
Affiliates who is involved in the managed modem business conducted
by Buyer or any of its Affiliates, including, without limitation,
the Business, to terminate the employee’s employment with the
Buyer or any such Affiliate.
1.4
Remedies . Any breach of any of the covenants set
forth in this Article 1 would result in irreparable damage to
the Buyer. Consequently, and without limiting other remedies
which may exist for a breach of this Agreement, the B
