EXHIBIT 2.4
NONCOMPETITION AGREEMENT
This NONCOMPETITION AGREEMENT (this "AGREEMENT") is made as of ___________,
1998 by and among Quantum Corporation, a Delaware corporation ("PARENT"), ATL
Products, Inc., a Delaware corporation ("COMPANY"), and __________________ (the
"STOCKHOLDER").
RECITALS
A. As an employee, executive and stockholder of Company, the Stockholder
has obtained extensive and valuable knowledge and information concerning the
business of Company (including confidential information relating to Company and
its operations, assets, contracts, customers, personnel, plans and prospects).
B. Concurrently with the execution and delivery of this Agreement, Parent
is acquiring Company through a merger (the "MERGER") of Quick Acquisition
Corporation, a Delaware corporation and wholly owned subsidiary of Parent, with
and into Company, pursuant to an Agreement and Plan of Reorganization dated May
18, 1998 (the "MERGER AGREEMENT"). The Merger Agreement requires that a
noncompetition agreement be executed and delivered by the Stockholder as a
condition to the completion of the Merger, and the Stockholder is entering into
this Agreement in order to induce Parent to complete the Merger.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. Definitions. Capitalized terms used but not expressly defined in this
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Agreement shall have the meanings ascribed to them in the Merger Agreement.
2. Acknowledgments by the Stockholder. The Stockholder acknowledges that
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(a) the Stockholder has occupied a position of trust and confidence with Company
prior to the date hereof and has become familiar with the following, any and all
of which may constitute confidential information of Company (any such
information constituting confidential information of Company, the "CONFIDENTIAL
INFORMATION"): (i) any and all trade secrets concerning the business and affairs
of Company, data, know-how, compositions, processes, customer lists, current and
anticipated customer requirements, price lists, market studies, business plans;
(ii) any and all information concerning the business and affairs of Company
(which includes historical financial statements, financial projections and
budgets, historical and projected sales, capital spending budgets and plans, the
names and backgrounds of key personnel, personnel training and techniques and
materials), however documented; and (iii) any and all notes, analysis,
compilations, studies, summaries, and
other material prepared by or for Company containing or based, in whole or in
part, on any information included in the foregoing, (b) Parent has required that
the Stockholder make the covenants set forth in this Agreement as a condition to
Parent's acquisition of the Company; (c) the provisions of this Agreement are
reasonable and necessary to protect and preserve Company's business, and (d)
Company would be irreparably damaged if the Stockholder were to breach the
covenants set forth in Sections 3, 4, 5, 6 and 7 of this Agreement.
3. Confidential Information. The Stockholder acknowledges and agrees
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that all Confidential Information known or obtained by the Stockholder, whether
before or after the date hereof, is the property of Parent. Therefore, the
Stockholder agrees that the Stockholder will not, at any time, disclose to any
unauthorized Persons or use for his own account or for the benefit of any third
party any Confidential Information, whether the Stockholder has such information
in the Stockholder's memory or embodied in writing or other physical form,
without Parent's written consent, unless and to the extent that the Confidential
Information (i) is or becomes generally known to and available for use by the
public other than as a result of the Stockholder's fault or the fault of any
other Person bound by a duty of confidentiality to Parent or Company or (ii)
becomes available to Stockholder on a nonconfidential basis from a person other
than Company or Parent who is not otherwise bound by a confidentiality agreement
with Company or Parent, or is otherwise not under an obligation to Company or
Parent not to transmit the information to Stockholder. The Stockholder agrees
to deliver to Parent, at any time Parent may request, all documents, memoranda,
notes, plans, records, reports, and other documentation, models, components, or
computer software, whether embodied in a disk or in other form (and all copies
of all of the foregoing), relating to the businesses, operations, or affairs of
Company and any other Confidential Information that the Stockholder may then
possess or have under the Stockholder's control.
4. Noncompetition. As an inducement for Parent to enter into the Merger
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Agreement and as additional consideration for the consideration to be paid under
the Merger Agreement (part of which will be distributed to the Stockholder), the
Stockholder agrees that during the Noncompetition Period (as hereinafter
defined), the Stockholder will not, directly or indirectly, engage or invest in,
own, manage, operate, finance, control, or participate in the ownership,
management, operation, financing, or control of, be employed by, associated
with, or in any manner connected with, lend the Stockholder's name or any
similar name to, lend the Stockholder's credit to, or render services or advice
to, any business whose products, product development, services or other
activities compete in any respect with the products, product development,
services or other activities of or offered by Company, as such existed at or
before the Closing Date (the "RESTRICTED BUSINESS"), in North America; provided,
however, that the Stockholder may purchase or otherwise acquire up to (but not
more than) three percent (3%) of any class of securities of any enterprise (but
without otherwise participating in the activities of such enterprise) if such
securities are listed on any national or regional securities exchange or have
been registered under Section 12(g) of the Securities Exchange Act of 1934, as
amended. The Stockholder agrees that this covenant is reasonable with respect
to its duration, geographical area, and scope. As used herein, the
"NONCOMPETITION PERIOD" shall commence upon the Closing Date and end upon the
earlier of (i) 12 months following the
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termination of Stockholder's employment with the Company or Parent or (ii) the
third anniversary of the Closing Date. Notwithstanding the foregoing, in the
event that Stockholder's employment with Parent or Company is terminated by
Parent or Company other than for Cause (as defined below), the Noncompetition
Period shall end six months following the termination of Stockholder's
employment with the Company or Parent. For purposes of this Agreement, "CAUSE"
shall mean termination by the Company or Parent (i) because of the Stockholder's
commission of a felony involving moral turpitude, (ii) the willful, unauthorized
disclosure of the Company's or Parent's trade secrets, or (iii) following
delivery to Stockholder of a written demand for performance from Company or
Parent which describes the basis for Company's or Parent's belief that
Stockholder has not substantially performed his duties, continued violations by
Stockholder of Stockholder's obligations to Company or Parent which are
demonstrably willful and deliberate on Stockholder's part.
5. Nonsolicitation. The Stockholder further agrees that during the
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Noncompetition Period, he will not directly or indirectly, personally or through
others, encourage, induce, attempt to induce, solicit or attempt to solicit (on
the Stockholder's own behalf or on behalf of any other person or entity) any
employee of Parent or Company to leave his or her employment with such firm;
provided, however, that the foregoing shall not prohibit general solicitations
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by means of newspaper advertisements, web site postings and the like.
6. Independence of Obligations. The covenants of the Stockholder set
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forth in this Agreement shall be construed as independent of any other agreement
or arrangement between the Stockholder, on the one hand, and Parent or Company,
on the other. The existence of any claim or cause of action by the Stockholder
against Parent or Company shall not constitute a defense to the enforcement of
such covenants against the Stockholder.
7. Remedies. If the Stockholder breaches the covenants set forth in this
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Agreement, each of Parent and Company will be entitled to the following
remedies:
a. damages from the Stockholder; and
b. in addition to its right to damages and any other rights it may
have, to obtain injunctive or other equitable relief to restrain any breach or
threatened breach or otherwise to specifically enforce any provision of this
Agreement, it being agreed that money damages alone would be inadequate to
compensate the Parent or Company and would be an inadequate remedy for such
breach.
8. Non-Exclusivity. The rights and remedies of Parent and Company
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hereunder are not exclusive of or limited by any other rights or remedies which
Parent or Company may have, whether at law, in equity, by contract or otherwise,
all of which shall be cumulative (and not alternative). Without limiting the
generality of the foregoing, the rights and remedies of Parent and Company,
hereunder, and the obligations and liabilities of the Stockholder hereunder, are
in addition to their
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respective rights, remedies, obligations and liabilities under the law of unfair
competition, misappropriation of trade secrets and the like.
9. Waiver. The rights and remedies of the parties to this Agreement are
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cumulative and not alternative. 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.
10. Governing Law. This Agreement will be governed by the laws of the
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State of California without regard to conflicts of laws principles.
11. Severability. If any provision of this Agreement or any part of any
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such provision is held under any circumstances to be invalid or unenforceable in
any jurisdiction, then (a) such provision or part thereof shall, with respect to
such circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (b) the invalidity or unenforceability of such provision or part thereof
under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) such invalidity of
enforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this Agreement. Each provision of this
Agreement is separable from every other provision of this Agreement, and each
part of each provision of this Agreement is separable from every other part of
such provision.
12. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
13. Section Headings, Construction. The headings of Sections in this
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Agreement are provided for convenience only and will not affect its construction
or interpretation. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Agreement unless otherwise specified.
All words used in this Agreement will be construed to be of such gender or
number as the circumstances require. Unless otherwise expressly provided, the
word "including" does not limit the preceding words or terms.
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14. Notices. All notices, consents, waivers, and other communications
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under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand, (b) sent by facsimile, provided that a copy is
mailed by registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service or
registered mail (receipt requested), in each case to the appropriate addresses
and facsimile numbers set forth below (or to such other addresses and facsimile
numbers as a party may designate by notice to the other parties):
Stockholder: At Stockholder's address set forth on the signature page hereof.
Parent: Quantum Corporation
000 XxXxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
15. Further Assurances. The Stockholder shall execute and/or cause to be
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delivered to Parent or Company such instruments and other documents and shall
take such other actions as Parent or Company may reasonably request to
effectuate the intent and purposes of this Agreement.
16. Assignment. This Agreement and all obligations hereunder are personal
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to the Stockholder and may not be transferred or assigned by the Stockholder at
any time. Each of Parent and Company may assign its respective rights under
this Agreement to any entity in connection with any sale or transfer of all or a
substantial portion of its respective assets to such entity.
17. Binding Nature. Subject to Section 17, this Agreement will be binding
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upon the Stockholder and the Stockholder's representatives, executors,
administrators, estate, heirs, successors and assigns, and will inure to the
benefit of Parent and Company and their respective successors and assigns.
18. Entire Agreement. This Agreement constitutes the entire agreement
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between the parties with respect to the subject matter of this Agreement and
supersedes all prior written and oral agreements and understandings among
Parent, Company and the Stockholder with respect to the subject matter of this
Agreement. This Agreement may not be amended except by a written agreement
executed by all parties hereto.
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
QUANTUM CORPORATION: STOCKHOLDER:
By:_______________________________ By:_____________________________
Name:_____________________________
Title:____________________________
ATL PRODUCTS, INC.
By:_______________________________
Name:_____________________________
Title:____________________________
[Signature Page to Noncompetition Agreement]