EXHIBIT 99.4
CONFIDENTIALITY, NON-DISCLOSURE AND RESTRICTIVE COVENANT AGREEMENT
This Confidentiality, Non-Disclosure and Restrictive Covenant Agreement,
dated as of this 30th day of August, 2005 (this "Agreement"), by and among (i)
Hittite Microwave Corporation, a Delaware corporation ("Hittite"), (ii) HMC
Acquisition Corporation, a Delaware corporation and a wholly-owned subsidiary of
Hittite, ("Buyer" and, together with Hittite, the "Buyer Parties"), (iii) Simtek
Corporation, a Colorado corporation ("Simtek") and (iv) Q-Dot, Inc., an Illinois
corporation and a wholly-owned subsidiary of Simtek, (the "Company" and,
together with Simtek, the "Seller Parties").
WHEREAS, pursuant to an Asset Purchase Agreement dated as of the date
hereof by and among the Buyer Parties and the Seller Parties, the Buyer Parties
have agreed, subject to the terms and conditions set forth therein, to acquire
substantially all the assets of the Company (the "Acquisition");
WHEREAS, in partial consideration of the payment of the Purchase Price (as
defined at Section 1.7 of the Asset Purchase Agreement) of the Acquisition and
in accordance with Sections 4.4 and 6.9 of the Asset Purchase Agreement, Seller
Parties agree to enter into this Agreement;
WHEREAS, the Seller Parties acknowledge that the covenants of the Seller
Parties set forth in this Agreement are an essential element of the Acquisition
and that, but for this Agreement, Buyer Parties would not have entered into the
Asset Purchase Agreement; and
WHEREAS, the Seller Parties possess substantial and intimate knowledge of
the business and affairs of the Company and its policies, methods, personnel and
operations;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, the parties hereto agree as follows:
1. Non-Competition. For a period of four years from the date of this
Agreement (the "Restricted Period"), Seller Parties shall not, directly or
indirectly, engage in The Company's Business (as hereinafter defined) or,
without the prior written consent of Buyer Parties, directly or indirectly, own
an interest in, manage, operate, join, control, lend money or render financial
or other assistance to or participate in, as a partner, stockholder, consultant
or otherwise, any Person that competes with The Company's Business as it is
conducted as of the Closing Date. For purposes of this Agreement, the term the
"The Company's Business" shall mean any business anywhere in the world that
provides products or services of the kind provided by the Business (as defined
in the Recitals of the Asset Purchase Agreement) as of the Closing Date.
Notwithstanding the foregoing, for the purposes of this Section 1, ownership of
securities having no more than one percent (1%) of the outstanding voting power
of any competitor which are listed on any national securities exchange,
automated securities exchange (including Nasdaq) or traded actively in the
national over-the-counter market (in each case including any foreign equivalent)
shall not be deemed to be in violation of this Agreement.
2. Confidentiality. During the Restricted Period and at all times
thereafter, Seller Parties will keep and hold all Confidential Information (as
hereinafter defined) in strict confidence, and will not use or disclose in any
way any of such Confidential Information without the prior express written
consent of the Buyer Parties. For the purposes of this Agreement, the term
"Confidential Information" shall mean all trade secrets and confidential or
proprietary information (and any tangible representation thereof) owned,
possessed or used in connection with The Company Business or by the Buyer
Parties and its Affiliates; provided, however, that "Confidential Information"
does not include information which is or becomes generally available to the
public other than as a result of a disclosure by a Seller Party..
3. Non-Solicitation. During the Restricted Period, Seller Parties agree
that they will not in any way, directly or indirectly, for the purpose of
conducting or engaging in any business that competes with The Company Business,
call upon, solicit, advise or otherwise do, or attempt to do, business with any
customers of the Company engaged prior to the Closing Date (provided that Simtek
shall have the right to do business with any of its current or former
customers), or interfere with or attempt to interfere with any officers,
employees or consultants of the Buyer Parties, induce or attempt to induce any
of them to leave the employ of the Buyer Parties or violate the terms of their
Contracts, or any employment arrangements, with Buyer Parties, or, without the
prior written consent of Buyer Parties, directly or indirectly, solicit to hire,
hire or employ, whether as an employee, director, contractor, consultant or
otherwise any officers, employees or consultants of the Buyer Parties, unless
such Person's employment is terminated by the Seller Parties or its Affiliate;
provided, however, that this Section 3 shall not prohibit general solicitations
of or advertisements for employment by the Seller Parties that are not generally
directed at any officers, employees, representatives or agents of the Buyer
Parties, so long as the Seller Parties do not hire any such Person who responds
to any such general solicitation or advertisement.
4. Certain Definitions. For purposes of this Agreement, (a) the term
"Person" shall mean an individual, a corporation, an association, a partnership,
an estate, a trust and any other entity or organization, (b) the term
"Affiliate" shall mean with respect to any Person, any Person which, directly or
indirectly, controls, is controlled by, or is under common control with, such
Person, and (c) the term "control" (including, with correlative meaning, the
terms "controlled by" and "under common control with"), as used with respect to
any Person, means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
5. Extension of Restricted Period. The Restricted Period shall be extended
by the length of any period during which the Seller Parties are in breach of the
terms of this Agreement.
6. Amendments and Supplements. This Agreement may not be amended, modified
or supplemented by the parties hereto in any manner, except by an instrument in
writing signed by the Seller Parties and the Buyer Parties.
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7. No Waiver. The terms and conditions of this Agreement may be waived only
by a written instrument signed by the party waiving compliance. The failure of
any party hereto to enforce at any time any of the provisions of this Agreement
shall in no way be construed to be a waiver of any such provision, nor in any
way to affect the validity of this Agreement or any part hereof or the right of
such party thereafter to enforce each and every such provision. No waiver of any
breach of or non-compliance with this Agreement shall be held to be a waiver of
any other or subsequent breach or non-compliance. The rights and remedies herein
provided are cumulative and are not exclusive of any rights or remedies that any
party may otherwise have at law or in equity.
8. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the substantive laws of the State of Delaware,
without regard to its principles of conflicts of laws.
9. Notice. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered by hand, sent by facsimile
transmission with confirmation of receipt, sent via a reputable overnight
courier service with confirmation of receipt requested, or mailed by registered
or certified mail (postage prepaid and return receipt requested) to the parties
at the following addresses (or at such other address for a party as shall be
specified by like notice), and shall be deemed given on the date on which
delivered by hand or otherwise on the date of receipt as confirmed:
If to Buyer or Hittite:
----------------------
Hittite Microwave Corporation
00 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Chief Financial Officer
Facsimile: (000) 000-0000
with a copy to:
--------------
Xxxxx Xxxx LLP
World Trade Center West
000 Xxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Xx., Esq.
Facsimile: (000) 000-0000
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If to the Company or Simtek:
---------------------------
Simtek Corporation
0000 Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx, President & CEO
Facsimile: (000) 000-0000
with a copy to:
--------------
Holme Xxxxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
10. Construction of Agreement. A reference to a Section shall mean a
Section in this Agreement unless otherwise expressly stated. The titles and
headings herein are for reference purposes only and shall not in any manner
limit the construction of this Agreement which shall be considered as a whole.
The words "include," "includes" and "including" when used herein shall be deemed
in each case to be followed by the words "without limitation."
11. Entire Agreement, Assignability, etc. This Agreement and the Asset
Purchase Agreement and the documents and other agreements among the parties
hereto and thereto as contemplated by or referred to herein or therein
constitute the entire agreement among the parties with respect to the subject
matter hereof and supersede all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. This Agreement is not
intended to confer upon any person other than the parties hereto any rights or
remedies hereunder, except as otherwise expressly provided herein and shall not
be assignable by operation of law or otherwise.
12. Validity. The Seller Parties have independently consulted with their
counsel and after such consultation agree that the covenants set forth in this
Agreement are reasonable and proper. In the event that any provision of this
Agreement shall be determined to be unenforceable by reason of its extension for
too great a period of time or over too large a geographic area or over too great
a range of activities, it shall be interpreted to extend only over the maximum
period of time, geographic area or range of activities as to which it may be
enforceable. If, after application of the preceding sentence, any provision of
this Agreement shall be determined to be invalid, illegal or otherwise
unenforceable by a court of competent jurisdiction, the validity, legality and
enforceability of the other provisions of this Agreement shall not be affected
thereby. Except as otherwise provided in this Section 12, any invalid, illegal
or unenforceable provision of this Agreement shall be severable, and after any
such severance, all other provisions hereof shall remain in full force and
effect.
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13. Remedies. Seller Parties recognize that money damages alone would not
adequately compensate Buyer Parties and its Affiliates in the event of breach by
Seller Parties of this Agreement, and Seller Parties therefore agree that, in
addition to all other remedies available to Buyer Parties and its Affiliates, at
law, in equity or otherwise, Buyer Parties and its Affiliates shall be entitled
to injunctive relief for the enforcement hereof. All rights and remedies
hereunder are cumulative and are in addition to and not exclusive of any other
rights and remedies available, at law, in equity, by agreement or otherwise.
14. Counterparts. This Agreement may be executed in one or more
counterparts, all of which together shall constitute one and the same Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as an agreement under seal as of the date first written above.
Simtek Corporation
By: /s/Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President & CEO
Q-Dot, Inc.
By: /s/Xxxxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: President
Hittite Microwave Corporation
By: /s/Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: President & CEO
HMC Acquisition Corporation
By: /s/Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: President & CEO
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