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.
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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 sa
