Exhibit 10.87
NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
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This Non-Competition and Non-Disclosure Agreement (the "Agreement") is made
and entered into this 30th day of May, 2001 by and between Hai-Perng, aka Xxxx
Xxx ("Covenantor"), and Vertel Corporation, a California corporation ("Buyer"),
and is made with reference to the following:
RECITALS
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A. The Company is engaged in the business of development and sales of
network management software tools that utilize CORBA as the development platform
and provides consulting and related services. The Company has offices in
California, New Jersey and Texas.
B. Pursuant to that certain Agreement and Plan of Reorganization and
Liquidation, dated May 30, 2001, by and between Trigon Technology Group, Inc., a
Texas corporation (the "Company"), and Buyer (the "Purchase Agreement"), the
Company will sell to Buyer and Buyer will purchase from the Company,
substantially all of the assets of the Company together with the goodwill of the
Company (the "Assets").
B. Covenantor is a shareholder of the Company and has been employed as
the Chief Executive Officer and the President of the Company.
C. Covenantor acknowledges that the Company and its employees and
shareholders have over several years devoted substantial time, effort and
resources to developing the Assets which consist of the Company's trade secrets
and its other confidential and proprietary information as well as the Company's
relationships with customers, suppliers, employees and others doing business
with the Company; that such relationships, trade secrets and other information
are vital to the successful conduct of the Company's business by Buyer in the
future; that because of Covenantor's access to such confidential information and
trade secrets, Covenantor would be in a unique position to divert business from
Buyer and to commit irreparable damage to Buyer were Covenantor to be allowed to
compete with Buyer or to commit any of the other acts prohibited below; that the
enforcement of said restrictive covenants against Covenantor would not impose
any undue burden upon Covenantor; that none of said restrictive covenants is
unreasonable as to period or geographic area; and that the ability to enforce
said restrictive covenants against Covenantor is a material inducement to the
decision of Buyer to consummate the transactions contemplated in the Purchase
Agreement.
NOW, THEREFORE in consideration of the foregoing recitals, the mutual
agreements hereinafter set forth and the mutual benefits to be derived
therefrom, Covenantor covenants and agrees as follows:
ARTICLE 1
DEFINITIONS
1.1 The term "Buyer," as used herein, means not only Vertel Corporation,
but also any company, partnership or entity which (a) directly or indirectly,
controls, is controlled by or is under common control with Vertel Corporation or
(b) is a successor-in-interest to Vertel Corporation.
1.2 The term "Confidential Information", as used herein, means all
information or material not generally known by non-Company personnel
constituting Assets and acquired by Buyer under the Purchase Agreement which (i)
gives the Company some competitive business advantage or the opportunity of
obtaining such advantage or the disclosure of which could be detrimental to the
interests of the Company; (ii) which is owned by the Company or in which the
Company has an interest and (iii) which is either (A) marked "Confidential
Information," "Proprietary Information" or other similar marking, (B) known by
Covenantor to be considered confidential and proprietary by the Company as of
the date hereof or (C) from all the relevant circumstances should reasonably be
assumed by Covenantor to be confidential and proprietary to the Company.
Confidential Information includes, but is not limited to, the following types of
information and other information of a similar nature (whether or not reduced to
writing): trade secrets, inventions, drawings, file data, documentation,
diagrams, specifications, know how, processes, formulas, models, flow charts,
software in various stages of development, source code, object code, research
and development procedures, research or development and test results, marketing
techniques and materials, marketing and development plans, price lists, pricing
policies, business plans, information relating to customers and/or suppliers'
identities, characteristics and agreements, financial information and
projections, and employee files. Confidential Information also includes any
information described above which the Company obtains from another party and
which the Company treats as proprietary or is required to treat as Confidential
Information, whether or not owned or developed by the Company. NOTWITHSTANDING
THE ABOVE, HOWEVER, NO INFORMATION CONSTITUTES CONFIDENTIAL INFORMATION IF IT IS
GENERIC INFORMATION OR GENERAL KNOWLEDGE WHICH COVENANTOR WOULD HAVE LEARNED IN
THE COURSE OF SIMILAR EMPLOYMENT ELSEWHERE IN THE TRADE, IF SUCH INFORMATION IS
LAWFULLY AVAILABLE TO COVENANTOR FROM A SOURCE OTHER THAN THE COMPANY, OR IF IT
IS OTHERWISE PUBLICLY KNOWN AND IN THE PUBLIC DOMAIN.
1.3 The term "Closing" shall have the meaning ascribed to it in the
Purchase Agreement.
ARTICLE 2
COVENANT NOT TO COMPETE
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Covenantor shall not at any time within the period commencing on the date
hereof and ending on the fourth (4/th/) anniversary of the date hereof (the
"Restricted Period"), have any
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ownership interest (of record or beneficial) in or have any interest as an
employee, salesman, consultant, officer or director in, or otherwise aid or
assist in any manner, any firm, corporation, limited liability company,
partnership, proprietorship or other business that engages in any California
county, or in any other state, country or geographic area, listed in Exhibit "A"
hereof in a business that is similar to and directly or indirectly offers
products or services in competition with the business in which the Company was
engaged in such California county, state, country or other geographic area as of
the Closing, so long as Buyer, or any successor in interest of Buyer to the
business and goodwill of the Company, remains engaged in such business in any
such California county, state, country or other geographic area or continues to
solicit customers or potential customers therein; provided, however, that
Covenantor may own, directly or indirectly, solely as an investment, the
securities of any person which are traded on any national securities exchange if
Covenantor (i) is not a controlling person of, or a member of a group which
controls, such person or (ii) does not, directly or indirectly own two percent
(2%) or more of any class of securities of such person. For purposes of this
ARTICLE 2, the business activities which may not be engaged in during the
Restricted Period by Covenantor or by any firm, corporation, limited liability
company, partnership, proprietorship or other business in which Covenantor has
any interest are more particularly described in Exhibit "B" hereof.
ARTICLE 3
SOLICITATION OF BUSINESS
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During the Restricted Period, Covenantor shall not solicit or assist any
other person to solicit any business (other than for Buyer) from any present or
past customer of the Company; or request or advise any present or future
customer of the Company to withdraw, curtail or cancel its business dealings
with Buyer; or commit any other act or assist others to commit any other act
which might injure the business of Buyer.
ARTICLE 4
EMPLOYEES
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During the Restricted Period, Covenantor shall not directly or indirectly
(i) solicit or encourage any employee of Buyer to leave the employ of Buyer or
(ii) hire any employee who has left the employ of Buyer if such hiring is
proposed to occur within one year after the termination of such employee's
employment with Buyer.
ARTICLE 5
CONSULTANTS
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During the Restricted Period, Covenantor shall not directly or indirectly
solicit or encourage any consultant then under contract with Buyer to cease work
for Buyer.
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ARTICLE 6
NONDISCLOSURE
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From and after the Closing, Covenantor shall not (nor will Covenantor
assist any other person to do so) directly or indirectly reveal, report, publish
or disclose the Confidential Information to any person, firm or corporation not
expressly authorized by Buyer to receive such Confidential Information, or use
(or assist any person to use) such Confidential Information except for the
benefit of Buyer.
ARTICLE 7
OWNERSHIP AND RETURN OF MATERIALS
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Upon the termination of Covenantor's employment with Buyer, Covenantor
shall immediately surrender to Buyer all notes, data, sketches, drawings,
manuals, documents, records, data bases, programs, blueprints, memoranda,
specifications, customer lists, financial reports, equipment and all other
physical forms of expression incorporating or containing any Confidential
Information, it being distinctly understood that all such writings, physical
forms of expression and other things are the exclusive property of Buyer.
Covenantor acknowledges that the unauthorized taking of any of Buyer's trade
secrets is a crime under California Penal Code section 499(c) and is punishable
by imprisonment in a state prison or in a county jail for a time not exceeding
one year, or by a fine not exceeding five thousand dollars ($5,000), or by both
such fine and such imprisonment. Covenantor further acknowledges that such
unauthorized taking of Buyer's trade secrets could also result in civil
liability under California Civil Code Section 3426, and that willful
misappropriation may result in an award against Covenantor for triple the amount
of Buyer's damages and Buyer's attorneys fees in collecting such damages.
ARTICLE 8
RIGHTS AND REMEDIES UPON BREACH
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If Covenantor breaches, or threatens to commit a breach of, any of the
provisions of this Agreement (the "Restrictive Covenants"), Buyer shall have the
following rights and remedies, each of which shall be in addition to, and not in
lieu of, any other rights and remedies available to Buyer under law or in
equity:
8.1 Specific Performance. The right and remedy to have the Restrictive
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Covenants specifically enforced or to have any actual or threatened breach
thereof enjoined by any court having equity jurisdiction, all without the need
to post a bond or any other security or to prove any amount of actual damage or
that money damages would not provide an adequate remedy, it being acknowledged
and agreed that any such breach or threatened breach will cause irreparable
injury to Buyer and that monetary damages will not provide an adequate remedy to
Buyer; and
8.2 Accounting and Indemnification. The right and remedy to require
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Covenantor (i) to account for and pay over to Buyer all compensation, profits,
monies, accruals, increments or other benefits derived or received by Covenantor
or any associated party deriving such benefits
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as a result of any such breach of the Restrictive Covenants; and (ii) to
indemnify Buyer against any other losses, damages (including special and
consequential damages), costs and expenses, including reasonable attorneys' fees
and court costs, which may be incurred by them and which result from or arise
out of any such breach or threatened breach of the Restrictive Covenants.
ARTICLE 9
SEVERABILITY OF COVENANTS/BLUE PENCILLING
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The Restrictive Covenants shall be subject to Section 12.7 hereof and
Covenantor hereby waives any and all right to attack the validity of the
Restrictive Covenants on the grounds of the breadth of their geographic scope or
the length of their term.
ARTICLE 10
ENFORCEABILITY IN JURISDICTIONS
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Buyer and Covenantor intend to and do hereby confer jurisdiction to enforce
the Restrictive Covenants upon the courts of any jurisdiction within the
geographical scope of such covenants. If the courts of any one or more of such
jurisdictions hold the Restrictive Covenants wholly unenforceable by reason of
the breadth of such scope or otherwise, it is the intention of Buyer and
Covenantor that such determination not bar or in any way affect the right of
Buyer to the relief provided above in the courts of any other jurisdiction
within the geographical scope of such covenants, as to breaches of such
covenants in such other respective jurisdictions, such covenants as they relate
to each jurisdiction being, for this purpose, severable into diverse and
independent covenants.
ARTICLE 11
ATTORNEYS' FEES
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In the event of any action, suit, or other proceeding concerning the
negotiation, interpretation, validity, performance, or breach of this Agreement,
the prevailing party shall recover all of such party's reasonable attorneys'
fees, expenses, and costs, not limited to costs of suit, incurred in each and
every such action, suit, or other proceeding, including any and all appeals or
petitions relating thereto.
ARTICLE 12
MISCELLANEOUS
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12.1 Modification. This Agreement sets forth the entire understanding of
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the parties with respect to the subject matter hereof, supersedes all existing
agreements between them concerning such subject matter, and may be modified only
by a written instrument duly executed by each party.
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12.2 Successors and Assigns. The terms and provisions of this Agreement
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shall be binding upon, and shall inure to the benefit of, the parties hereto,
their personal representatives, administrators, executors, heirs, successors and
assigns.
12.3 Waiver. The failure of either party hereto at any time to enforce
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performance by the other party of any provision of this Agreement shall in no
way affect such party's rights thereafter to enforce the same, nor shall the
waiver by either party of any breach of any provision hereof be deemed to be a
waiver by such party of any other breach of the same or any other provision
hereof.
12.4 Notices. All notices, requests and other communications hereunder
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shall be in writing and shall be delivered by courier or other means of personal
service (including by means of a nationally recognized courier service or
professional messenger service), or sent by facsimile or mailed first class,
postage prepaid, by certified mail, return receipt requested, in all cases,
addressed to:
Buyer:
Vertel Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Fax No.: (000) 000-0000
With a copy to:
Xxxxx X. Xxxx, Esq.
Xxxxxxx Coie LLP
0000 00/xx/ Xxxxxx
0/xx/ Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000
Covenantor:
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Attention:
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Fax No.:
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With a copy to:
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Attention:
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Fax No.:
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All notices, requests and other communications shall be deemed given on the date
of actual receipt or delivery as evidenced by written receipt, acknowledgement
or other evidence of actual receipt or delivery to the address. In case of
service by facsimile, a copy of such notice shall be personally delivered or
sent by registered or certified mail, in the manner set forth above, within
three business days thereafter. Any party hereto may from time to time by
notice in writing served as set forth above designate a different address or a
different or additional person to which all such notices or communications
thereafter are to be given.
12.5 Time of Essence. Time is hereby declared to be of the essence of this
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Agreement and of every part hereof.
12.6 Severance and Enforcement. All Sections, clauses and covenants
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contained in this Agreement are severable, and in the event any of them shall be
held to be invalid by any court, this Agreement shall be interpreted as if such
invalid Sections, clauses or covenants were not contained herein. Without
limitation, the parties intend that the covenants contained in this Agreement
shall be severable insofar as the geographic and time restrictions set forth
herein are concerned. If, in any judicial proceedings, a court shall refuse to
enforce the geographic and/or time restrictions imposed herein to their fullest
extent, then the geographic and/or time restrictions set forth herein shall be
reduced to the extent necessary to permit enforcement of the foregoing covenant
to the fullest extent possible.
12.7 Governing Law and Venue. This Agreement shall be governed by and
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construed in accordance with the laws of the State of California applicable to
contracts made and to be performed wholly within such State, and without regard
to the conflicts of laws principles thereof. Subject to ARTICLE 10 hereof, any
suit brought hereon shall be brought in the state or federal courts sitting in
Los Angeles, California, the parties hereto hereby waiving any claim or defense
that such forum is not convenient or proper. Subject to ARTICLE 10 hereof, each
party hereby agrees that any such court shall have in personam jurisdiction over
it and consents to service of process in any manner authorized by California
law.
12.8 Gender. Where the context so requires, the use of the masculine
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gender shall include the feminine and/or neuter genders and the singular shall
include the plural, and vice versa, and the word "person" shall include any
corporation, firm, partnership or other form of association.
12.9 Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
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12.10 Construction. The language in all parts of this Agreement shall in
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all cases be construed simply, according to its fair meaning, and not strictly
for or against any of the parties hereto. Without limitation, there shall be no
presumption against any party on the ground that such party was responsible for
drafting this Agreement or any part thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date and year first above written.
COVENANTOR:
/s/ Hai-Xxxxx Xxx
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Name: Hai-Perng, aka Xxxx Xxx
BUYER
Vertel Corporation,
a California corporation
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: CFO
[SIGNATURE PAGE TO NON-COMPETITION AND NON-DISCLOSURE AGREEMENT]
EXHIBIT "A"
A. United States of America
1. California
(a) Alameda County
(b) Alpine County
(c) Xxxxxx County
(d) Butte County
(e) Calaveras County
(f) Colusa County
(g) Contra Costa County
(h) Del Norte County
(i) El Dorado County
(j) Fresno County
(k) Xxxxx County
(l) Humboldt County
(m) Imperial County
(n) Inyo County
(o) Xxxx County
(p) Kings County
(q) Lake County
(r) Lassen County
(s) Los Angeles County
(t) Madera County
(u) Marin County
(v) Mariposa County
(w) Mendocino County
(x) Merced County
(y) Modoc County
(z) Mono County
(aa) Monterey County
(bb) Napa County
(cc) Nevada County
(dd) Orange County
(ee) Placer County
(ff) Plumas County
(gg) Riverside County
(hh) Sacramento County
(ii) San Xxxxxx County
(jj) San Bernardino County
(kk) San Diego County
(ll) San Francisco County
(mm) San Xxxxxxx County
(nn) San Xxxx Opispo County
(oo) San Mateo County
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(pp) Santa Xxxxxxx County
(qq) Santa Xxxxx County
(rr) Santa Xxxx County
(ss) Shasta County
(tt) Sierra County
(uu) Siskiyou County
(vv) Xxxxxx County
(ww) Sonoma County
(xx) Stanislaus County
(yy) Xxxxxx County
(zz) Tehama County
(aaa) Trinity County
(bbb) Tulare County
(ccc) Tuolumne County
(ddd) Ventura County
(eee) Yolo County
(fff) Yuba County
2. Alabama
(a) All counties and/or parishes.
3. Alaska
(a) All counties and/or parishes.
4. Arizona
(a) All counties and/or parishes.
5. Arkansas
(a) All counties and/or parishes.
6. Canal Zone
(a) All counties and/or parishes.
7. Colorado
(a) All counties and/or parishes.
8. Connecticut
(a) All counties and/or parishes.
9. Delaware
(a) All counties and/or parishes.
10. District of Columbia
(a) All counties and/or parishes.
11. Florida
(a) All counties and/or parishes.
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12. Georgia
(a) All counties and/or parishes.
13. Guam
(a) All counties and/or parishes.
14. Hawaii
(a) All counties and/or parishes.
15. Idaho
(a) All counties and/or parishes.
16. Illinois
(a) All counties and/or parishes.
17. Indiana
(a) All counties and/or parishes.
18. Iowa
(a) All counties and/or parishes.
19. Kansas
(a) All counties and/or parishes.
20. Kentucky
(a) All counties and/or parishes.
21. Louisiana
(a) All counties and/or parishes.
22. Maine
(a) All counties and/or parishes.
23. Maryland
(a) All counties and/or parishes.
24. Massachusetts
(a) All counties and/or parishes.
25. Michigan
(a) All counties and/or parishes.
26. Minnesota
(a) All counties and/or parishes.
27. Mississippi
(a) All counties and/or parishes.
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28. Missouri
(a) All counties and/or parishes.
29. Montana
(a) All counties and/or parishes.
30. Nebraska
(a) All counties and/or parishes.
31. Nevada
(a) All counties and/or parishes.
32. New Hampshire
(a) All counties and/or parishes.
33. New Jersey
(a) All counties and/or parishes.
34. New Mexico
(a) All counties and/or parishes.
35. New York
(a) All counties and/or parishes.
36. North Carolina
(a) All counties and/or parishes.
37. North Dakota
(a) All counties and/or parishes.
38. Ohio
(a) All counties and/or parishes.
39. Oklahoma
(a) All counties and/or parishes.
40. Oregon
(a) All counties and/or parishes.
41. Pennsylvania
(a) All counties and/or parishes.
42. Puerto Rico
(a) All counties and/or parishes.
43. Rhode Island
(a) All counties and/or parishes.
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44. South Carolina
(a) All counties and/or parishes.
45. South Dakota
(a) All counties and/or parishes.
46. Tennessee
(a) All counties and/or parishes.
47. Texas
(a) All counties and/or parishes.
48. Utah
(a) All counties and/or parishes.
49. Vermont
(a) All counties and/or parishes.
50. Virgin Islands
(a) All counties and/or parishes.
51. Virginia
(a) All counties and/or parishes.
52. Washington
(a) All counties and/or parishes.
53. West Virginia
(a) All counties and/or parishes.
54. Wisconsin
(a) All counties and/or parishes.
55. Wyoming
(a) All counties and/or parishes.
B. Argentina
C. Australia
D. Austria
E. Belgium
F. Brazil
G. Canada
H. Denmark
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I. Ecuador
J. England
K. Finland
L. France
M. Germany
N. Hong Kong
O. Israel
P. Italy
Q. Japan
R. Korea
S. Netherlands
T. New Zealand
U. Nigeria
V. Norway
W. Singapore
X. South Africa
Y. Spain
Z. Sweden
AA. Switzerland
BB. Taiwan
CC. Thailand
DD. Venezuela
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EXHIBIT "B"
DESCRIPTION OF RESTRICTED BUSINESS
Develop, make, have made, sell, offer to sell, distribute, import, and/or sub-
license software for any purpose involving network management tools that utilize
CORBA as the development platform, or provide consulting services with respect
to any of the foregoing.
