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NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT is being executed and delivered as of June
23, 1999 by Xxxxx X. Xxxxxxx ("Stockholder") in favor of and for the benefit of
COMPUWARE CORPORATION, its subsidiaries and affiliates ("Compuware"), and Data
Processing Resources Corporation ("DPRC").
RECITALS
A. As an employee and Stockholder of DPRC, Stockholder has obtained and
will obtain extensive and valuable knowledge and information concerning the
business of DPRC (including confidential information relating to DPRC and
Compuware and its operations, assets, contracts, customers, personnel, plans and
prospects).
B. Contemporaneously with the execution and delivery of this
Noncompetition Agreement, DPRC is entering into an Agreement and Plan of Merger
(the "Merger Agreement"), pursuant to which it is anticipated that Compuware
will acquire DPRC (the "Acquisition").
C. In connection with the Acquisition and to more fully secure unto
Compuware the benefits of the Acquisition, Compuware has requested that
Stockholder enter into this Noncompetition Agreement.
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In consideration of the foregoing, Stockholder agrees as follows:
1. ACKNOWLEDGMENTS BY STOCKHOLDER. Stockholder acknowledges that the
promises and restrictive covenants that Stockholder is providing in this
Noncompetition Agreement are reasonable and necessary to the protection of
Compuware's business and Compuware's legitimate interests in its acquisition of
DPRC (including DPRC's goodwill) pursuant to the Merger Agreement.
2. NONCOMPETITION. During the period commencing on the Effective Time
(as defined in the Merger Agreement) and ending on the later of (i) the first
anniversary of the Effective Time or (ii) the first anniversary of the
termination of Stockholder's employment with Compuware or DPRC, as the case may
be (the "Restriction Period"), Stockholder shall not, without Compuware's
consent, be or become an officer, director, stockholder, owner, affiliate,
salesperson, co-owner, partner, trustee, promoter, technician, engineer,
analyst, employee, agent, representative, supplier, investor or lender,
consultant, advisor or manager of or to, acquire or hold any interest in, or
permit Stockholder's name to be used in connection with any person or entity
that engages in any business entity which is directly competitive with any
business of DPRC on the Effective Time or the professional services business of
Compuware at the time of termination of your employment (the "Competitive
Business"); provided, however, that nothing in this Section 2 shall prevent
Stockholder from owning as a passive investment less than 1% of the outstanding
shares of the capital stock of a publicly-held corporation if such shares are
actively traded on an established national securities market in the United
States. Under this Noncompetition Agreement, Stockholder's employment with
Compuware or DPRC, as the case may be, shall be deemed to terminate at such time
that Stockholder is neither a full-time nor a part-time employee of Compuware.
3. INDEPENDENCE OF OBLIGATIONS. The covenants and obligations of
Stockholder set forth in this Noncompetition Agreement shall be construed as
independent of any other agreement or arrangement between Stockholder, on the
one hand, and DPRC or Compuware, on the other.
4. SPECIFIC PERFORMANCE. Stockholder agrees that in the event of any
breach or threatened breach by Stockholder of any covenant, obligation or other
provision contained in this Noncompetition Agreement, Compuware and DPRC shall
be entitled (in addition to any other remedy that may be available to them) to
the extent permitted by applicable law (a) a decree or order of specific
performance to enforce the observance and performance of such covenant,
obligation or other provision, and (b) an injunction restraining such breach or
threatened breach. Stockholder further agrees that neither Compuware nor any
other person or entity shall be required to provide any bond or other security
in connection with any such decree, order or injunction or in connection with
any related action or proceeding.
5. NON-EXCLUSIVITY. The rights and remedies of Compuware and DPRC
hereunder are not exclusive of or limited by any other rights or remedies which
Compuware or DPRC 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 Compuware and DPRC
hereunder, and the obligations and liabilities of Stockholder hereunder, are in
addition to their respective rights, remedies, obligations and liabilities under
the law of unfair competition, misappropriation of trade secrets and the like.
This Noncompetition Agreement does not limit Stockholder's obligations or the
rights of Compuware or DPRC (or any affiliate of Compuware or DPRC) under the
terms of any other agreement between Stockholder and Compuware or DPRC or any
affiliate of Compuware or DPRC.
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6. NOTICES. Any notice or other communication required or permitted to
be delivered to Stockholder, DPRC or Compuware under this Noncompetition
Agreement shall be in writing and shall be deemed properly delivered, given and
received when delivered (by hand, by registered mail, by courier or express
delivery service or by facsimile) to the address or facsimile telephone number
set forth beneath the name of such party below (or to such other address or
facsimile telephone number as such party shall have specified in a written
notice delivered in accordance with this Section 6):
IF TO COMPUWARE/DPRC: Compuware Corporation
President
00000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx Xxxxx, XX 00000
Faxsimile: 000-000-0000
IF TO STOCKHOLDER: Date Processing Resources
Corporation
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile: 000-000-0000
7. SEVERABILITY. If any provision of this Noncompetition Agreement or
any part of any 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 or 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 or 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 Noncompetition
Agreement is separable from every other part of such provision.
8. GOVERNING LAW. This Noncompetition Agreement shall be construed in
accordance with, and governed in all respects by, the laws of the State of
California (without giving effect to principles of conflicts of laws).
9. WAIVER. No failure on the part of Compuware or DPRC to exercise any
power, right, privilege or remedy under this Noncompetition Agreement, and no
delay on the part of Compuware or DPRC in exercising any power, right, privilege
or remedy under this Noncompetition Agreement, shall operate as a waiver of such
power, right, privilege or remedy; and no single or partial exercise of any such
power, right, privilege or remedy shall preclude any other or further exercise
thereof or of any other power, right, privilege or remedy. Neither Compuware nor
DPRC shall be deemed to have waived any claim arising out of this Noncompetition
Agreement, or any power, right, privilege or remedy under this Noncompetition
Agreement, unless the waiver of such claim, power, right, privilege or remedy is
expressly set forth in a written instrument duly executed and delivered on
behalf of such party; and any such waiver shall not be applicable or have any
effect except in the specific instance in which it is given.
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10. CAPTIONS. The captions contained in this Noncompetition Agreement
are for convenience of reference only, shall not be deemed to be a part of this
Noncompetition Agreement and shall not be referred to in connection with the
construction or interpretation of this Noncompetition Agreement.
11. FURTHER ASSURANCES. Stockholder shall execute and/or cause to be
delivered to DPRC and Compuware such instruments and other documents and shall
take such other actions as Corporation and Compuware may reasonably request to
effectuate the intent and purposes of this Noncompetition Agreement.
12. ENTIRE AGREEMENT. This Noncompetition Agreement sets forth the
entire understanding of Stockholder, DPRC and Compuware relating to the subject
matter hereof and thereof and supersede all prior agreements and understandings
between any of such parties relating to the subject matter hereof and thereof.
13. AMENDMENTS. This Noncompetition Agreement may not be amended,
modified, altered, or supplemented other than by means of a written instrument
duly executed and delivered on behalf of Compuware and Stockholder.
14. ASSIGNMENT. This Noncompetition Agreement and all obligations
hereunder are personal to Stockholder and may not be transferred or assigned by
Stockholder at any time. Either Compuware or DPRC may assign its rights under
this Noncompetition Agreement in whole or in part, without the consent or
approval of the Stockholder or any other person or entity, in connection with
(A) the sale of Compuware or DPRC, or (B) the sale or other transfer of all or a
substantial part of the assets or business of Compuware or DPRC.
15. ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Noncompetition Agreement or the enforcement of any provision of
this Noncompetition Agreement is brought against any party to this
Noncompetition Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements (in addition to any other
relief to which the prevailing party may be entitled).
16. EFFECTIVE TIME. This Noncompetition Agreement shall become effective
on the Effective Time and shall have no force or effect if the Effective Time
does not occur.
17. BINDING NATURE; INTERPRETATION OF THIS AGREEMENT. Subject to Section
16, this Noncompetition Agreement will be binding upon Stockholder and
Stockholder's representatives, executors, administrators, estate, heirs,
successors and assigns, and will inure to the benefit of Compuware and DPRC and
their respective successors and assigns. The parties agree that this
Noncompetition Agreement shall not be interpreted against either party solely
because this Noncompetition Agreement was drafted by attorneys for Compuware.
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IN WITNESS WHEREOF, the parties here executed this Noncompetition
Agreement as of the date first above written.
/s/ Xxxxx X. Xxxxxxx
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XXXXX X. XXXXXXX
/s/ Xxxxxxx Xxxxx
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COMPUWARE CORPORATION
/s/ Xxxx Xxxxx Xxxxxx
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DPRC
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