Exhibit 99.3
NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
This Non-Competition and Confidentiality Agreement (this "Agreement") is
entered into as of the 25th day of June, 2004, by and among Xxxxxx Xxxxxxxx, an
individual resident of Colorado ("Xxxxxxxx"), Ricochet Networks, Inc., a
Delaware corporation ("Ricochet"), and YDI Wireless, Inc., a Delaware
corporation ("YDI" and, together with Ricochet, the "Companies")
- Recitals -
Xxxxxxxx is the manager of Ricochet Investments, LLC, the sole stockholder
of Ricochet. This Agreement is being executed and delivered in connection with
the transactions contemplated by that certain Stock Purchase Agreement of even
date, pursuant to which YDI is purchasing all of the outstanding stock in
Ricochet. Xxxxxxxx will receive substantial benefit as a result of the sale of
the Ricochet stock.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Xxxxxxxx and the Companies agree
as follows:
ARTICLE I
COVENANTS FOR THE BENEFIT OF THE COMPANIES
1.1. Noncompetition.
(a) For a period of two (2) years from the date of this Agreement,
Xxxxxxxx shall not, directly or indirectly (whether as owner, principal,
manager, director, officer, general or limited partner, employee, agent,
trustee, licensor, consultant, stockholder, member, joint venturer or
independent contractor or in any other capacity whatsoever), engage in,
represent, furnish consultant services to, be employed by, or have any interest
in, lend money or financial or other assistance to, participate or in any manner
be connected with, lend his name or any similar name to, or render any services
or advice to any person, firm, partnership, company, corporation or other entity
which develops, manufactures, provides, sells, resells or distributes any
wireless data services or equipment operating in license-free spectrum; such
restrictions shall apply to the geographic area of the entire world.
(b) Xxxxxxxx agrees that this covenant is reasonable with respect to
its duration, geographic area and scope. Notwithstanding the restrictions set
forth above, this Section 1.1 shall not prevent Xxxxxxxx from owning up to one
percent (1%) of the outstanding stock of any publicly traded company which
competes with Ricochet, provided Xxxxxxxx does not participate in the
management, operation, sales, control or other activities of the business of any
such entity.
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1.2. Confidentiality. Xxxxxxxx acknowledges that the information used by
Ricochet in the conduct of its business, including supplier, software,
financial, subscriber and customer information, as well as inventions and other
confidential information (including trade secrets) used by Ricochet in its
business, are confidential and the sole and exclusive property of Ricochet. At
all times after the date of this Agreement, Xxxxxxxx shall not use or disclose
any of such confidential information without the prior written consent of
Ricochet. For this purpose, information that is publicly available will not be
considered confidential or proprietary to Ricochet.
1.3. Specific Performance; Construction.
(a) YDI and Ricochet shall have the right and remedy to have
Sections 1.1 and 1.2 of this Agreement specifically enforced by any court having
equity jurisdiction, it being acknowledged and agreed that any breach or
threatened breach of those provisions could cause irreparable injury to the
Companies and that money damages might not provide an adequate remedy to the
Companies.
(b) If any of the covenants contained in Sections 1.1 or 1.2, or any
part thereof, is hereafter construed to be invalid or unenforceable, such
illegal or unenforceable portion(s) shall be limited or excluded from this
Agreement to the minimum extent required so that this Agreement shall otherwise
remain in full force and effect and enforceable in accordance with its terms.
(c) If any of the covenants contained in Section 1.1, or any part
thereof, is held to be unenforceable because of the scope or duration of such
provision or the area covered thereby, the parties agree that the court making
such determination shall have the power to reduce the scope, duration or area,
or all of them, of such provision and, in its reduced form, said provision shall
then be enforceable.
ARTICLE II
MISCELLANY
2.1. Notices. All notices required or permitted by this Agreement shall be
in writing and shall be delivered to the appropriate party by registered or
certified mail, return receipt requested, at the designated addresses provided
below:
Ricochet or YDI: YDI Wireless, Inc.
0000 Xxx Xxxxxxx
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Xxxxxxxx: Xxxxxx Xxxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
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All such notices shall be deemed effective and delivered when received. Either
party may change its designated address by delivering notice of its new address
to the other party.
2.2. Governing Law. This Agreement shall be governed by and construed in
all respects in accordance with the laws of the State of Delaware.
2.3. Severability. Subject to Section 1.3 above, if any one or more
provisions of this Agreement shall be held inoperative or invalid in any
jurisdiction, such circumstance shall not have the effect of rendering that
provision inoperative or invalid in any other jurisdiction, or of rendering any
other provision of this Agreement inoperative or invalid in any jurisdiction.
2.4. Amendment. This Agreement may be amended by a document executed by
the Companies and by Xxxxxxxx. Any such document must specify the provisions
contained herein that are to be amended.
2.5. Waiver. Neither the failure nor any delay by any party in exercising
any right, power, or privilege under this Agreement will operate as a waiver of
such right, power, or privilege, and no single or partial exercise of any such
right, power, or privilege will preclude any other or further exercise of such
right, power, or privilege or the exercise of any other right, power, or
privilege. To the maximum extent permitted by applicable law, (a) no claim or
right arising out of this Agreement can be discharged by one party, in whole or
in part, by a waiver or renunciation of the claim or right unless in writing
signed by the other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given; and (c) no
notice to or demand on one party will be deemed to be a waiver of any obligation
of such party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this Agreement.
2.6. Captions. All article and section headings contained in this
Agreement are for convenience only and shall not be deemed to be part of this
Agreement.
2.7. Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute an original and all of which, when taken together, shall
constitute one agreement. A facsimile or copy of a signature is valid as an
original.
2.8. Rules of Construction. The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this Agreement
and, therefore, waive the application of any law, regulation, holding, or rule
of construction providing that ambiguities in an agreement or other document
will be construed against the party drafting such agreement or document.
2.9. Assignment. Because the nature of the Agreement is specific to the
actions of Xxxxxxxx, Xxxxxxxx may not assign or delegate this Agreement. This
Agreement shall inure to the benefit of the Companies and their successors and
assigns.
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2.10. Timing. Time is of the essence as to the performance of the parties'
obligations set forth hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective on the date first written on page one.
YDI WIRELESS, INC.
/s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
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Xxxxxx Xxxxxxxx, Individually Xxxxx X. Xxxxxxx
Vice President
RICOCHET NETWORKS, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
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Title: CEO
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