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EXHIBIT 10.6
AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered on March 20,
1997, between CrossComm Corporation, a Delaware corporation (the "Company") and
Xxxxxxx Xxxxxxxxx ("Xxx").
This Agreement has been signed in connection with that certain
Agreement and Plan of Reorganization among Olicom A/S ("Olicom"), PW
Acquisition Corporation and CrossComm Corporation of even date herewith (the
"Merger Agreement").
In consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Tad and the Company agree as follows:
1. Covenant Not to Compete.
(a) Tad agrees that, for a period of 10 months following
the closing of the transactions described in the Merger Agreement (the "Term"),
he will not, anywhere in the world, whether acting individually or as an
officer, director, employee, agent, stockholder or consultant of any person,
firm, corporation, business or other entity, engage in a business that
competes, directly or indirectly, in any material respect with the "Business"
(as defined herein); provided, however, that Tad may own publicly-traded stock
of any such person, firm, corporation, business or other entity constituting
not more than 5% of the outstanding shares of such class of stock so long as
his involvement with any such entity is limited to the ownership of such stock.
As used herein, the term "Business" means the development and marketing of the
following products in the computer networking industry: ethernet, token ring
and asychronous transfer mode (ATM) switches and network interface cards;
bridges; routers; and HUBs.
(b) Tad and the Company acknowledge that Section 1(a) is
reasonable and necessary, in view of the nature of the Company, its businesses
and his knowledge thereof, in order to protect the legitimate interests of the
Company.
(c) Tad agrees that during the Term, he shall not,
without the prior written consent of the Company (which may not be unreasonably
withheld or delayed), induce any employee of or independent contractor to the
Company to terminate his or her relationship with the Company or any subsidiary
or affiliate thereof, whether or not existing as of the date hereof, in order
to accept any position with Tad or a company affiliated with him; provided,
however, that the foregoing does not prohibit Tad from negotiating with, or
offering employment or hiring, any person who, on his own initiative, contacts
Tad regarding possible employment; and, provided further, that as to an
employee or contractor who terminates his or her relationship with the Company,
Tad may solicit and hire such person after the expiration of three months
following the termination of such person's relationship with the Company.
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2. Payment. In partial consideration for the covenants of Tad
hereunder, the Company agrees to pay Tad the sum of $5,500 per month during the
Term, to be offset against any payments made pursuant to any consulting
agreement with the Company or Olicom.
3. Burden of Proof. In the event that the Company brings an
action against Tad that alleges any violation by Tad of his agreements herein,
the Company shall have the burden of proving such claims.
4. Attorneys' Fees. In any action in which Tad is the prevailing
party, he shall be reimbursed by the Company for all reasonable attorneys' fees
and costs in connection therewith; in the event that the Company is the
prevailing party in any such action, the Company shall bear its own costs and
fees.
5. Mediation. In the event that with respect to Tad's obligations
in this Agreement, Tad and the Company agree that neither will initiate
litigation or other legal proceedings against one another for a period of 90
days commencing after Tad's receipt of a notice of claimed breach of this
Agreement from the Company. During such 90-day period, the parties will submit
such dispute to binding mediation. The mediator will be a litigation partner
at a prominent law firm in Boston, Massachusetts who is reasonably acceptable
to both parties and who has never had an attorney/client relationship with
either party (or in the case of a dispute over nonsolicitation, the person who
was allegedly solicited). In such mediation, the non-prevailing party will pay
the costs and expenses of the mediator. In the event that the mediator
determines that Tad has violated any provision of this Agreement relating to
nonsolicitation, he will be prohibited from employing or contracting with the
person solicited for a period of 10 months after the mediator renders his
decision.
6. Miscellaneous. This Agreement contains the entire
understanding of the parties relating to the subject matter contained herein
and supersedes all prior agreements and understandings, written or oral,
relating to the subject matter hereof. This Agreement shall not be amended or
terminated except in a writing signed by the party against whom enforcement is
sought. This Agreement may be executed in counterparts, each of which shall be
deemed to be an original but both of which together will constitute one and the
same instrument. In the event that any provision of this Agreement, or the
application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further
agree to replace such void or unenforceable provision of this Agreement with a
valid and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
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IN WITNESS HEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
/s/Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
CROSSCOMM CORPORATION
By: /s/Xxxxxxx X. Xxxxxx
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Chief Financial Officer
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