Exhibit 10.5
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NON-COMPETITION AND NON-SOLICITATION AGREEMENT
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This Agreement is made between Entrust Technologies Inc., a Maryland
corporation ("Entrust"), and Xxxxxxx Xxxxx (the "Employee").
WHEREAS, Entrust has entered into the Agreement and Plan of Merger by and
among Entrust, Enable Acquisition Corp. and Enable, Inc. (the "Company") dated
as of April 18, 2000 (the "Merger Agreement"), pursuant to which the Company
shall become a subsidiary of Entrust and the holders of capital stock and
options of the Company will receive stock or options of Entrust;
WHEREAS, Entrust was induced to enter into the Merger Agreement on the
condition that the Employee execute this Agreement prior to the consummation of
the transactions contemplated in the Merger Agreement; and
WHEREAS, the Employee is an owner of capital stock or options to acquire
the capital stock of the Company and will personally benefit from the
transactions contemplated by the Merger Agreement.
NOW, THEREFORE, in consideration of (i) Entrust entering into the Merger
Agreement and consummating the transactions contemplated thereby, (ii) the
benefit to the Employee from the transactions contemplated in the Merger
Agreement and (iii) the employment or continued employment of the Employee by
Entrust or any of its subsidiaries, the Employee and Entrust agree as follows:
1. Non-Competition and Non-Solicitation. For a period of one year after
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the closing of the transactions contemplated by the Merger Agreement the
Employee will not, directly or indirectly:
(a) Engage in any business or enterprise (whether as owner, partner,
officer, director, employee, consultant, investor, lender or otherwise, except
as the holder of not more than 1% of the outstanding stock of a company) that
directly or indirectly competes with Entrust's business or the business of any
of its subsidiaries (which, for purposes of this Agreement, includes the
Company), including but not limited to the business of the Company and any
business or enterprise that develops, manufactures, markets, or sells any
product or service that competes with any product or service developed,
manufactured, marketed or sold, or planned to be developed, manufactured,
marketed or sold, by Entrust or any of its subsidiaries while the Employee was
employed by Entrust or any of its subsidiaries; or
(b) Either alone or in association with others (i) solicit, or
encourage any organization directly or indirectly controlled by the Employee to
solicit, any employee of Entrust or any of its subsidiaries to leave the employ
of Entrust or any of its subsidiaries, (ii) solicit for employment, hire or
engage as an independent contractor, or permit any organization directly or
indirectly controlled by the Employee to solicit for employment, hire or engage
as an independent contractor, any person who was employed by Entrust or any of
its subsidiaries at any time during the term of the Employee's employment with
Entrust or any of its subsidiaries;
provided, that this clause (ii) shall not apply to any individual whose
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employment with Entrust or any of its subsidiaries has been terminated for a
period of one year or longer, or (iii) solicit business from or perform services
for or induce or attempt to induce, any customer, supplier, licensee or business
relation of Entrust or any of its subsidiaries to cease doing business with
Entrust or any of its subsidiaries, or in any way interfere with the
relationship between any customer, supplier, licensee or business relation of
Entrust or any of its subsidiaries.
2. Miscellaneous.
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(a) Extension. If the Employee violates the provisions of Section
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1, the Employee shall continue to be bound by the restrictions set forth in
Section 1 until a period of one year has expired without any violation of such
provisions.
(b) Not Employment Contract. The Employee acknowledges that this
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Agreement does not constitute a contract of employment, does not imply that the
Company or any of its subsidiaries will continue his/her employment for any
period of time and does not change the at-will nature of his/her employment.
(c) Interpretation. If any restriction set forth in Section 1 is
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found by any court of competent jurisdiction to be unenforceable because it
extends for too long a period of time or over too great a range of activities or
in too broad a geographic area, it shall be interpreted to extend only over the
maximum period of time, range of activities or geographic area as to which it
may be enforceable. The parties intend that the non-competition and non-
solicitation provisions contained in this Agreement shall be deemed to be a
series of separate covenants, one for each and every county of each and every
state of the United States of America and each and every political subdivision
of each and every country outside the United States of America where this
provision is intended to be effective.
(d) Severability. The invalidity or unenforceability of any
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provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(e) Waiver of Rights. No delay or omission by Entrust in
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exercising any right under this Agreement will operate as a waiver of that or
any other right. A waiver or consent given by Entrust on any one occasion is
effective only in that instance and will not be construed as a bar to or waiver
of any right on any other occasion.
(f) Equitable Remedies. The restrictions contained in this
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Agreement are necessary for the protection of the business and goodwill of
Entrust and its subsidiaries and are considered by the Employee to be reasonable
for such purpose. The Employee agrees that any breach of this Agreement is
likely to cause Entrust substantial and irrevocable damage and therefore, in the
event of any such breach, the Employee agrees that Entrust, in addition to such
other remedies which may be available, shall be entitled to specific performance
and other injunctive relief.
(g) Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Maryland. Any action,
suit, or other legal proceeding
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which is commenced to resolve any matter arising under or relating to any
provision of this Agreement shall be commenced only in a court of the State of
Maryland (or, if appropriate, a federal court located within Maryland), and
Entrust and the Employee each consents to the jurisdiction of such a court.
(h) Effectiveness. This Agreement shall be effective upon, and
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subject to, the closing of the transactions contemplated by the Merger
Agreement.
THE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT
AND UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.
ENTRUST INC.
Date: ______________________ By:____________________________
EMPLOYEE:
Date:_______________________ /s/ Xxxxxxx Xxxxx
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(Signature)
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