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EXHIBIT 10.21
NONCOMPETE AGREEMENT
TRANSCRYPT ACQUISITION, LTD., a Nebraska limited partnership, (the
"Company") and XXXX XXXXXXXXXXXX ("Kuijvenhoven") agree as follows:
1. In consideration of the fees specified in Paragraph 2 and the
purchase of assets from Kuijvenhoven, Kuijvenhoven hereby agrees to the
following terms and conditions:
Kuijvenhoven expressly covenants and agrees that at no time during a
period beginning on the date of the execution of this Noncompete Agreement and
extending through the fifth anniversary hereof will he for himself or on behalf
of any other person, partnership, firm, association or corporation in any
territory in which Company is actively engaged in business (1) open or operate
a business which is in competition with the Company, (2) act as an employee,
agent, advisor or consultant of any then existing competitor of the Company,
(3) solicit or accept business from any of the Company's competitors, unless
authorized by the Company, in advance and in writing, (4) take any action to or
do anything reasonably intended to divert business from the Company or
influence or attempt to influence any existing customers of the Company to
cease doing business with Company or to alter its then existing business
relationship with the Company or (5) take any action or do anything reasonably
intended to influence any existing suppliers of the Company to cease doing
business with the Company or to alter its then existing business relationship
with the Company. Kuijvenhoven further covenants and agrees that he will not
for himself or on behalf of any other person, partnership, firm, association
or corporation in any territory served by the Company, directly or indirectly
solicit or accept business from any of the Company's existing customers for the
purchase or sale of products or services of a like kind to those sold or
provided by the Company.
2. For and in exchange for Kuijenhoven's agreement not to compete as
set forth herein, the Company shall pay Kuijvenhoven an amount of $1,020,000,
20% of such fee ($204,000) shall be due and paid on the first anniversary of the
execution of this Agreement. The remainder ($816,000) shall be paid in 48 equal
consecutive monthly installments commencing on the first day of the month next
following the first anniversary of the execution of this Agreement and
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continuing thereafter on the first day of each and every succeeding month
thereafter until paid in full. The payment of such fees shall be secured as
provided in the Security and Pledge Agreement between the parties of even date
herewith.
3. By signing this agreement, Kuijvenhoven expressly acknowledges
that the territorial limitations, duration and scope of this agreement are fair
and reasonable.
4. Kuijvenhoven further agrees that the Company shall be entitled
to maintain proceedings in any court of competent jurisdiction, either at law
or in equity, for any breach of this agreement by Kuijvenhoven to enforce the
specific performance of this agreement and/or to obtain damages for any breach
thereof, and without regard to any or all remedies sought by the Company, the
Company shall be entitled to recover reasonable attorneys' fees incurred in
enforcing this agreement.
5. In the event of the death of Kuijvenhoven all amounts payable
shall be payable to Kuijvenhoven's personal representative.
6. The covenants contained shall be subject to the following
exceptions:
a. They shall not apply to any action taken or omitted by
Kuijvenhoven on behalf of the Company which are within the scope of his
Consulting Agreement, any action taken or omitted by Kuijvenhoven in his
capacity as an officer, director or shareholder of Transcrypt
Acquisition Corporation or as a limited partner of the Company or as an
officer, director or shareholder of any of its or their affiliates, or
with respect to any action taken or omitted to enforce his rights under
this Agreement under the Purchase Agreement or under the Security and
Pledge Agreement.
b. They shall not apply to any activities which are
normally and customarily incident to the ownership of stock or
securities of a publicly held company or of an interest in any blind
trust, investment pool or fund or any estate or trust of which
Kuijvenhoven is not the grantor or in any similar vehicle under which
Kuijvenhoven does not have investment control.
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c. they shall not apply to any act or omission of Kuijvenhoven
or any inadvertant or unintended act of Kuijvenhoven which does not
materially effect Company's Business or which Kuijvenhoven shall, in
any event, cease immediately upon written notice from the Company.
d. they shall not apply to any act or omission or to the
conduct of any business or commercial enterprise to which Company
consents in advance and in writing provided the Company shall promptly
respond to all such requests and shall not unreasonably withhold its
consent.
7. This agreement supersedes any prior agreement between the
Kuivjenhoven and the Company pertaining to the subject hereof. In the event
that any portion of this agreement is declared invalid or illegal by final
judgment of any court of competent jurisdiction, the remainder of this
agreement shall remain in full force and effect, notwithstanding the invalidity
or illegality of the other portion.
8. This agreement shall be governed by the laws of the State of
Nebraska.
9. This agreement may be executed in duplicate counterparts, each of
which shall be deemed to be an original, and all of which shall constitute one
in the same agreement.
10. Anything herein to the contrary notwithstanding the entire remaining
balance due hereunder, reduced to present value using an interest rate of 10%,
shall become immediately due and payable to Kiujvenhoven in the event the
Company shall become insolvent, effect an assignment of any of its assets to or
for the benefit of creditors, upon the commencement of any proceedings under
any bankruptcy or insolvency act by or against Company or in the further event
the Company shall sell, transfer or assign all or substantially all of the
Company's assets, or shall effect whether merger, consolidation, sale by public
or private offering or otherwise, a change in control which has the effect of
transferring 30% or more of the voting common stock and/or partnership interest
of Company or of Transcrypt Acquisition Corporation, or its or their successors
to persons, firms, or entities who were not holders of such securities
immediately prior to the date on which such merger, consolidation, sale or
other action was effective.
11. Notwithstanding the fact that a court of competent jurisdiction may
declare all or any part of this Agreement to be void, voidable, or otherwise
unenforceable, such fact shall not relieve or otherwise execute payment of the
amounts
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otherwise payable hereunder to Kuijvenhoven provided Kuijvenhoven continues to
perform his obligations hereunder and in such event Company shall continue to
make all payments to Kuijvenhoven as provided for herein as the sums become due
and payable despite such judgment or order.
IN WITNESS WHEREOF, the parties have caused this agreement to be
executed as of the 3rd day of December, 1991.
TRANSCRYPT ACQUISITION, LTD.
By Transcrypt Acquisition Corporation,
its general partner
By /s/ Xxxx X. Xxxxxx
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Printed Name Xxxx X. Xxxxxx
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Its Chairman
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/s/ Xxxx Xxxxxxxxxxxx
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Xxxx Xxxxxxxxxxxx
