SELLER NON-COMPETITION AGREEMENT
Exhibit 99.1
SELLER NON-COMPETITION AGREEMENT
This SELLER NON-COMPETITION AGREEMENT (this “Agreement”) is made and entered into as of February___, 2005 (the “Agreement Date”), by and among JACKSONVILLE TECHNOLOGY ASSOCIATES, INC., a Delaware corporation now known as WSECI, Inc. (the “Seller”), and the shareholders of the Seller signatory hereto (each a “Shareholder” and collectively, the “Shareholders”) on the one hand, and VERSO TECHNOLOGIES, INC., a Minnesota corporation (the “Purchaser”), on the other hand.
1. Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to them in the Asset Purchase Agreement.
2. Covenant Not to Compete. Each of the Shareholders and the Seller acknowledges that he, she or it is and will be in possession of Confidential Information concerning the Business, including, but not limited to, information about markets, key personnel, current and prospective customers and other business affairs and methods and other information not readily available to the public; provided, however, that, for purposes of this Agreement, Confidential Information shall not include information which (a) is or becomes generally available to the public other than as a result of wrongful disclosure by
any Shareholder or the Seller, or (b) becomes available to any Shareholder or the Seller, as applicable, from a third party without restriction or breach of this Agreement and, to the knowledge of any Shareholder or the Seller, as applicable, without breach of any other confidentiality obligation owed to the Purchaser. As a means reasonably designed to protect the Confidential Information, from the Agreement Date above until the second anniversary of the Agreement Date, the Seller agrees that it will not, directly or indirectly (including through its Affiliates), within the geographic region of North America and South America, engage in, assist (financially or otherwise), render services to, or perform any activity that is competitive with the Business (the “Protected Activities”). Also as a means reasonably designed to protect the Confidential Information, from the Agreement Date above until the second anniversary of the Agreement Date, each of the Shareholders agrees that he, she or it will not, directly or indirectly (including through his, her or its Affiliates), within the geographic region of North America and South America, engage in, assist (financially or otherwise), render services to, or perform any activity that is competitive with the Business and substantially similar to the services rendered or the activities performed by such Shareholder for the Seller (the “Protected Activities”) in the capacity of a shareholder, officer, director or other management personnel, whether as an employee or an independent contractor. For avoidance of doubt, the Seller’s or any Shareholder’s engaging in any Excluded Business shall not be limited by this paragraph 2. Notwithstanding the foregoing, each of the Shareholders and the Seller may own, directly or indirectly, an aggregate of no more than one percent (1%) of the outstanding stock or other equity interest of or in any publicly traded corporation or other business enterprise that engages in the Protected Activities, provided that such participation therein is solely as a passive investor and does not include any role, as applicable, as director, officer, manager or other service provider.
3. Non-Interference and Non-Solicitation. From the Agreement Date until the second anniversary of the Agreement Date, neither the Seller nor any Shareholder will, without the prior written consent of the Purchaser, directly, indirectly (including through his, her or its Affiliates) or as an agent on behalf of or in conjunction with any person, firm, partnership, corporation or other entity: (a) hire, solicit, encourage the resignation of, or in any other manner seek to engage or employ, any person who, as of the Agreement Date or at any time during the six (6) month period prior thereto, was an employee of the Seller and was engaged in the Business, including (but not limited to) those employees listed on Exhibit A hereto, whether or not for compensation and whether as an officer, employee, consultant, adviser, independent sales representative, vendor, independent contractor or participant (provided, however, that if any such employee is hired by the Purchaser and thereafter terminated by the Purchaser, then the Seller may hire such person), or (b) contact, solicit, service or otherwise have any dealings with any person or entity with whom the Purchaser has a then-current business relationship in connection with the Protected Activities or if such contact, solicitation or other dealings could reasonably be expected to adversely impact the Purchaser’s relationship with such person or entity.
4. Non-Disclosure. Unless otherwise approved in writing by the Purchaser, each of the Shareholders and the Seller covenants and agrees that he, she or it will not use for any purpose and will keep secret and will not intentionally disclose to anyone other than the Purchaser, wherever located, any and all Confidential Information during the term of this Agreement.
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5. Equitable Relief. It is expressly agreed among the parties hereto that monetary damages would be inadequate to compensate a party hereto for any breach by any other party of its covenants and agreements in this Agreement. Accordingly, the parties agree and acknowledge that any such violation or threatened violation will cause irreparable injury to the other and that, in addition to any other remedies which may be available, such party shall be entitled to injunctive relief against the threatened breach of this Agreement or the continuation of any such breach without the necessity of proving actual damages and without posting any bond or other security, and may seek to specifically enforce the terms of this Agreement.
6. Consideration. Each of the Shareholders and the Seller acknowledges that the consideration for the covenants in Sections 2, 3 and 4 above, consists of substantial economic value as provided under the Asset Purchase Agreement and the Related Agreements. Each of the Shareholders and the Seller also acknowledges that the Purchaser would not consummate the transactions contemplated under the Asset Purchase Agreement and the Related Agreements unless each of the Shareholders and the Seller entered into this Agreement.
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that this Agreement shall not be construed for or against either party in any interpretation thereof.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(g) Venue. The parties hereto agree that any legal proceeding instituted with respect to the matters contemplated by this Agreement shall only be brought in a court with subject matter jurisdiction over the dispute located in Atlanta, Georgia, and the parties hereto hereby submit to jurisdiction in any such court and agree that venue properly lies in any such court.
If to any Shareholder, then to the address set forth beneath the signature of such Shareholder hereto.
If to the Seller, to:
WSECI, Inc.
0000 Xxxxxxxxxx Xxx Xxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
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with a copy to:
Xxxxx Xxxxxx, Esq.
Law Office of Xxxxx Xxxxxx
000 Xxxxxxxx Xxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
If to any Shareholder, to the address set forth on the signature page hereto signed by such Shareholder.
If to the Purchaser, to:
Verso Technologies, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx, LLP
2700 International Tower
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Hussle
Telephone: (000) 000-0000
Fax No.: (000) 000-0000
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exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (v) periods of days, weeks or months mean calendar days, weeks or months.
[Signature pages follow]
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WSECI, INC. | |||
By: | |||
Name: | |||
Title: |
VERSO TECHNOLOGIES, INC. | |||
By: | |||
Name: | |||
Title: |
[SIGNATURES CONTINUED ON FOLLOWING PAGES]
[Signature Page to Seller Non-Competition Agreement]
SHAREHOLDER: | ||
Printed Name of Shareholder or Name of Entity (if applicable) | ||
Signature of Shareholder or Authorized Representative of Shareholder | ||
Printed Name of Authorized Representative of Shareholder (if applicable) | ||
Title of Authorized Representative of Shareholder (if applicable) | ||
Address of Shareholder: | ||
[Signature page to Seller Non-Competition Agreement]
Exhibit A
Employees
Name | ||
Eyal Wiransky Xxxx Xxxxx Xxxxx Xxxxxxx Xxxxx Xxxx Xxxxx Xxxxx Xxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxx Xxxxx Xxxxxx Xxxxx |