EXHIBIT 10.6
FORM OF
NONCOMPETE AND NONSOLICITATION AGREEMENT
This NONCOMPETE AND NONSOLICITATION AGREEMENT (the "Agreement") is entered
into this 26th day of February, 1997, by and between , an
individual ("Employee"), and 3Com Corporation, a California corporation. For the
purposes of this Agreement, "Buyer" shall be deemed to include 3Com Corporation
and its majority owned direct and indirect subsidiaries during the term of this
Agreement.
RECITALS
A. U.S. Robotics Corporation, a Delaware corporation ("Seller"), together
with its subsidiaries is engaged throughout the United States of America and the
world in the business of the design, development, manufacture and marketing of
products and systems for data networking including enterprise communications
systems and desktop/mobile client products and modems for connecting computers
and other equipment over analog, digital and switched cellular networks
("Seller's Products"). The term "Seller's Products" as used herein does not
include products of Seller other than data networking products.
B. Pursuant to that certain Agreement and Plan of Reorganization (the
"Reorganization Agreement"), dated February 26, 1997, by and among Buyer, TR
Acquisition Corporation, a Delaware corporation wholly owned by Buyer ("Sub"),
and Seller, Buyer is acquiring Seller through a merger of Sub with and into
Seller (the "Merger"). After the Merger becomes effective, the separate
existence of Sub shall cease, and Seller, as the surviving corporation in the
Merger shall continue its corporate existence under the laws of the State of
Delaware and will continue to operate the Business of Seller.
C. Employee is the beneficial owner of shares of, or options to acquire,
capital stock of Seller and is a key employee or officer of Seller. As a result
of the Merger, Employee will be entitled to receive stock and options with a
substantial value.
D. It is a condition to the Merger in order that Buyer obtain the value
intended for the consideration paid in the Merger, this Agreement is entered
into by Employee in consideration of and as an inducement to Buyer and Sub to
consummate the Merger.
NOW, THEREFORE, the parties agree as follows:
1. COVENANT NOT TO COMPETE. Employee agrees that for a period of two (2)
years from the effective time of the Merger and for so long thereafter as
Employee is employed by or serves as a consultant to Buyer, Employee will not,
directly or indirectly, individually or as an owner, partner, shareholder, joint
venturer, corporate officer, director, employee, consultant, principal, agent,
trustee or licensor, or in any other similar capacity whatsoever of or for any
person, firm, partnership, company or corporation (other than Buyer), (a) own,
manage, operate, sell, control or participate in the ownership, management,
operation, sales or control of any business engaged to a significant degree in
the design, research, development, marketing, sales, manufacture or licensing of
products that are substantially similar to or competitive with any Seller
Products (whether through stand-alone products or broader products that include
equivalent functionality) ("Competitive Products"); or be employed primarily in
the design, research, development, marketing, sale or manufacture of such
Competitive Products (b) accept employment with a customer of Seller with the
intent or purpose of depriving Seller of business performed by Seller by
transferring such work to a department, division or affiliate of the customer or
to a third party; or (c) request or advise any of the customers, suppliers or
other business contacts or Seller with which Employee had contact while employed
or Seller to withdraw, curtail, cancel or not increase their business
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with Seller. Notwithstanding the foregoing, Employee is permitted to own as a
passive investor up to a five percent (5%) interest in any publicly traded
entity.
2. COVENANT NOT TO SOLICIT. Employee further agrees that, during the
period of the covenants set forth in Paragraph 1 ("Covenant Not to Compete")
above, Employee will not directly or indirectly recruit, induce or attempt to
persuade any person who is then an employee, sales representative or consultant
of Buyer or Seller to terminate his or her relationship with Buyer or Seller.
3. CANCELLATION OF EXISTING CONTRACTS. Employee acknowledges and agrees
that there are no existing employment, noncompetition or change-in-control
agreements between Employee and Seller other than those set forth in Seller's
standard employment policies, and as set forth in the Employment Agreement with
Seller dated January 1, 1997.
4. REASONABLENESS. Employee agrees that the covenants provided for in
Paragraphs 1 ("Covenant Not to Compete") and 2 ("Covenant Not to Solicit")
hereof, including the term and the geographical area encompassed therein, are
necessary and reasonable in order to protect Buyer in the conduct of its
business and the utilization of its assets, tangible and intangible, including
goodwill, and to preserve and protect the tangible and intangible assets of
Seller, including Seller's goodwill, and the customers and trade secrets of
which Employee has and will have knowledge, and in consideration for Buyer's
entering into and performing under the Reorganization Agreement. Both parties
agree that the execution, delivery and performance of this Agreement is in
consideration of and a condition to the consummation of the Merger, and the
parties do not ascribe and cannot ascribe a separate consideration or value to
the covenants provided herein.
5. LITIGATION ASSISTANCE. Employee shall, provided any out-of-pocket
expenses are reimbursed by Buyer, for a period of five (5) years after any
termination of employment, at no cost to Buyer or Sub, unless otherwise provided
herein, diligently and fully cooperate with Buyer or Sub, including testifying,
answering interrogatories, being deposed, and generally providing information
and fully cooperating with the defense or prosecution of any suit or cause of
action brought by or defended by Buyer or Sub based upon any facts relating to
any contract or matter which originated during Employee's employment by Buyer or
one of its subsidiaries. Buyer agrees to provide reasonable travel policy for
Employee's assistance and cooperation in all such actions or suits, if required.
Any requests for time away from Employee's work must be reasonably acceptable to
Employee, and Employee shall be compensated on a per diem basis based on
Employee's annual salary on the day before termination of this Agreement.
6. CONSTRUCTION. The covenants contained in this Agreement shall be
construed as a series of separate covenants, one for each of the counties in
each of the states of the United States of America, one for each province of
Canada, and one for each country in the world. It is the desire and intent of
the parties that these covenants shall be enforced to the fullest extent
permissible under applicable law and that if one such clause is found
unenforceable, the remaining clauses be enforced.
7. INJUNCTIVE RELIEF. It is expressly agreed between the parties that
monetary damages would be inadequate to compensate Buyer for any breach by
Employee of his covenants and agreements set forth herein. Accordingly, Employee
agrees and acknowledges that any such violation or threatened violation will
cause irreparable injury to Buyer and that, in addition to any other remedies
which may be available, Buyer shall be entitled to obtain injunctive relief
against the threatened breach of this Agreement or the continuation of any such
breach by Employee, without the necessity of proving actual damages.
8. AMENDMENTS; GOVERNING LAW. This Agreement contains the entire agreement
of the parties hereto with respect to the subject matter contained herein. There
are no restrictions, promises, covenants, or undertakings, other than those
expressly set forth herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter. No
provision hereof may be waived, altered or amended, except by written instrument
signed by all of the parties hereto. This Agreement shall be governed, construed
and enforced in accordance with the laws of the State of
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Illinois. All disputes arising under this Agreement shall be brought in the
federal and state courts located in Illinois, as permitted by law, and each of
the parties hereby consents to the personal jurisdiction, service of process and
venue of such courts.
9. SUCCESSORS AND ASSIGNS. Neither this Agreement nor any of the rights or
obligations of Employee arising under this Agreement may be assigned or
transferred without Buyer's prior written consent. This Agreement will be for
the benefit of Buyer's successors and assigns, and will be binding on Employee's
heirs and legal representatives.
10. NOTICES. Any notice or other communication under this Agreement shall
be in writing, signed by the party making the same, and shall be delivered
personally or sent by certified or registered mail, postage prepaid, addressed
as follows:
If to Employee: -------------
-------------
-------------
If to Buyer: 3Com Corporation
0000 Xxxxxxxx Xxxxx
X.X. Xxx 00000
Xxxxx Xxxxx XX 00000
Attn: General Counsel
with a copy to: Xxxx Xxxx Xxxx & Freidenrich
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: J. Xxxxxx Xxxxxx
or to such other address as may hereafter be designated by either party hereto.
All such notices shall be deemed given on the date personally delivered or
mailed.
11. SEVERABILITY. The parties agree that construction of this Agreement
shall be in favor of its reasonable nature, legality and enforceability, and
that any construction causing unenforceability shall yield to a construction
permitting enforceability. It is agreed that the noncompetition,
nonsolicitation, nondisclosure and nonhiring covenants and provisions of this
Agreement are severable, and that if any single covenant or provision or
multiple covenants or provisions should be found unenforceable, the entire
Agreement and remaining covenants and provisions shall not fail but shall be
construed as enforceable without any severed covenant or provision in accordance
with the tenor of this Agreement. The parties specifically agree that no
covenant or provision of this Agreement shall be invalidated because of
overbreadth insofar as the parties acknowledge the scope of the covenants and
provisions contained herein to be reasonable and necessary for the protection of
Sub, Buyer and Seller and not unduly restrictive upon Employee. However, should
a court or any other trier of fact or law determine not to enforce any covenant
or provision of this Agreement as written due to overbreadth, then the parties
agree that said covenant or provision shall be enforced to the extent
reasonable, with the court or such trier to make any necessary revisions to said
covenant or provision to permit its enforceability.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
_____________________________________________
Employee
3COM CORPORATION:
By:_________________________________________
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Name:_________________________________
Title:________________________________________
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