NON-COMPETE AND CONFIDENTIALITY AGREEMENT
THIS NON-COMPETE AND CONFIDENTIALITY AGREEMENT (the "Agreement") is dated
as of the 3rd day of September, 1999 by and between Factual Data Corp. (the
"Company") and Bentley International, Inc.
WHEREAS, on or about the date of this Agreement, the Company entered into
an Asset Purchase Agreement (the "Purchase Agreement") with Residential Mortgage
Credit Reporting, Inc. ("Seller"); and
WHEREAS, Bentley International, Inc. has agreed to enter into this
Agreement to induce the Company to consummate the purchase of the assets of
Seller; and
WHEREAS, the Company will close on the Purchase Agreement, effective as of
September 3, 1999 (the "Closing") and wishes to enter into this Agreement so
that (i) Bentley International, Inc. will refrain from certain activities which
would be competitive with the Company's business following the Closing, and (ii)
Bentley International, Inc. will become bound by confidentiality provisions
relating to his receipt and possession of information concerning the Company.
NOW, THEREFORE, in consideration of the $10 and the mutual covenants and
agreements set forth below, Bentley International, Inc. and the Company hereby
agree as follows:
1. Term. The term of this Agreement shall be for a period of three years
following Closing of the Purchase Agreement.
2. Consideration. Bentley International, Inc. acknowledges that it is a
direct and an indirect beneficiary of amounts paid to Seller in consideration of
the non-compete and confidentiality provisions hereof, and further acknowledges
that such consideration is being paid contemporaneously with the sale of the
assets of Seller to the Company and that, accordingly, such non-compete and
confidentiality agreement is given in connection with the sale of the assets of
Seller to the Company. Bentley International, Inc. acknowledges both the receipt
of such consideration and the sufficiency thereof.
3. Description of Business, Trade Secrets and Proprietary Information.
Bentley International, Inc. acknowledges that the Company is in the business of
providing mortgage credit reports and a variety of other credit reporting
information services to commercial enterprises, businesses and government
entities. For purposes of this Agreement, the terms "Trade Secrets" and
"Proprietary Information" shall mean all materials and information in any media
(whether or not reduced to writing and whether or not patentable) relating to
the credit reporting business which Bentley International, Inc. receives, has
had access to, or develops or has developed, in whole or in part, as a direct or
indirect result of his prior dealings with the Company, including but not
limited to materials and information on existing or proposed operations; service
development procedures, marketing techniques, purchasing information, price
lists, pricing policies, quoting procedures, financial information, customer or
customer prospect names, requirements and other data, and other materials or
information relating to the manner in which the Company does business;
discoveries, concepts and ideas, whether patentable or not, including without
limitation the nature and results of research and development activities,
processes, formulas, techniques, "know-how," designs, drawings and
specifications, whether copyrightable or not; and all inventions and ideas which
are derived from or relate to Bentley International, Inc.'s access to or
knowledge of any of the above enumerated materials and information.
The Trade Secrets or Proprietary Information shall not include any
materials or information of the type specified above to the extent that such
materials or information:
(a) were in the public domain at the same time they were communicated to
Bentley International, Inc. by the Company;
(b) entered the public domain subsequent to the time they were communicated to
Bentley International, Inc. by the Company through no fault of Bentley
International, Inc.;
(c) was in Bentley International, Inc.'s possession free of any obligation of
confidence at the time it was communicated to Bentley International, Inc.
by the Company;
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(d) were rightfully communicated to Bentley International, Inc. free of any
obligation of confidence subsequent to the time it was communicated to
Bentley International, Inc. by the Company;
(e) were developed by employees or agents of Bentley International, Inc.
independently of and without any reference to any information communicated
to Bentley International, Inc. by the Company; or
(f) were communicated in response to a valid order by a court or other
governmental body, was otherwise required by law, or was necessary to
establish the rights of Bentley International, Inc. under this Agreement;
provided, however, that if Bentley International, Inc. or his agents or
affiliates is requested or required to disclose such materials or
information other than as permitted by this Agreement, Bentley
International, Inc. will cooperate with the Company and provide the Company
with prompt and adequate notice of such request so that the Company may
seek an appropriate protective order, injunctive relief and/or waive
compliance with the provisions of the Agreement.
Failure to xxxx any document or information as confidential shall not affect its
status as part of the Trade Secrets or Proprietary Information under the terms
of this Agreement.
4. Title to Trade Secrets and Proprietary Information. Bentley
International, Inc. agrees that the Trade Secrets and Proprietary Information
are and shall at all times remain the sole and exclusive property of the
Company. Bentley International, Inc. will always hold inviolate and confidential
any and all Trade Secrets and Proprietary Information of the Company now or
hereafter existing.
5. Covenant of Non-Disclosure. Bentley International, Inc. shall not sell,
transfer, publish, disclose, display or otherwise make available in any media to
any third party any of the Trade Secrets and Proprietary Information. Bentley
International, Inc. agrees to secure and protect the Company's Trade Secrets and
Proprietary Information in a manner consistent with the Company's rights in the
Trade Secrets and Proprietary Information. Bentley International, Inc. shall not
use the Trade Secrets and Proprietary Information for any purpose.
6. Non-Compete Covenant. Because of its prior dealings with the Company,
Bentley International, Inc. will have access to trade secrets and confidential
information about the Company, its business plans, its business accounts, its
business opportunities, its expansion plans into other geographical areas and
its methods of doing business. Bentley International, Inc. agrees that for a
period of three years after Closing of the Purchase Agreement, it will not,
directly or indirectly, compete with the Company in the business of providing
mortgage credit reports, employment screening reports, tenant screening reports
or other such related information services to commercial enterprises, businesses
or government entities within 100 miles of any office owned or operated by the
Company, whether now existing or subsequently established, in the States of
Arizona, California, Colorado or Florida (the "Territory"), and that it will not
directly or indirectly participate in any capacity (including as an officer,
director, partner, employee, consultant or owner) in any entity or business
venture which is engaged in providing mortgage credit reports, employment
screening reports, tenant screening reports or other such related information
services to commercial enterprises, businesses or government entities in any
portion of the Territory, except on behalf of the Company.
7. Enforcement by Injunctive Relief. Bentley International, Inc. acknowledges
and agrees that any breach of this Agreement by Bentley International, Inc.
would cause immediate irreparable harm to the Company. Bentley International,
Inc. agrees that should it violate any of the terms and conditions of this
Agreement, the Company, at its sole discretion, shall be entitled to seek and
obtain immediate injunctive relief and enjoin further and future violations of
this Agreement.
8. Scope of Covenant. In the event a court of competent jurisdiction finds
any provision of this Agreement to be so overbroad as to be unenforceable, then
such provision shall be reduced in scope by the court, but only to the extent
deemed necessary by the court to render the provision reasonable and
enforceable, it being Bentley International, Inc.'s intention to provide the
Company with the broadest protection possible against harmful competition.
9. Notices. All notices, demands or requests (however characterized or
described) required or authorized hereunder shall be deemed given sufficiently
if in writing and sent by registered or certified mail, return receipt requested
and postage prepaid, or by tested facsimile, telex, telegram or cable to, in the
case of the Company:
X.X. Xxxxxx, President
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Factual Data Corp.
0000 Xxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
and in the case of Bentley International, Inc.:
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
10. Assignment of Agreement; Successors. No party may assign or otherwise
transfer this Agreement or any of its rights or obligations hereunder without
the prior written consent to such assignment or transfer by the other party
hereto.
11. Further Instruments. The parties shall execute and deliver any and all
such other instruments and shall take any and all such other actions as may be
reasonably necessary to carry the intent of this Agreement into full force and
effect.
12. Waiver. All the rights and remedies of either party under this
Agreement are cumulative and not exclusive of any other rights and remedies
provided by law. No delay or failure on the part of either party in the exercise
of any right or remedy under this Agreement shall operate as a waiver of any
subsequent right or remedy. The consent of any party where required hereunder to
any act or occurrence shall not be deemed to be a consent to any other act or
occurrence.
13. Costs and Attorneys' Fees. If litigation is commenced by either party
to enforce its rights under this Agreement, the party which the court determines
to have prevailed in litigation shall be entitled to recover all costs actually
incurred in connection with the litigation, including reasonable attorneys'
fees.
14. Submission to Jurisdiction; Waiver of Jury Trial Right. The parties
agree that any legal action or proceeding with respect to this Agreement or any
document relating hereto may be brought only in either (i) the United States
District Court for the District of Colorado, or (ii) the state courts of the
State of Colorado. Each party hereby irrevocably waives any objection, including
without limitation, any objection to the laying of venue or based on the grounds
of forum non conveniens, which it may now or hereafter have to the bringing of
any such action or proceeding in any such respective jurisdiction. FURTHERMORE,
BENTLEY INTERNATIONAL, INC. AND THE COMPANY WAIVE ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT
OR OTHERWISE) RELATED TO OR ARISING OUT OF THIS AGREEMENT.
15. General Provisions. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of Colorado. This
Agreement may not be modified or amended or any term or provision hereof waived
or discharged except in writing signed by the party against whom such amendment,
modification, waiver or discharge is sought to be enforced. This Agreement may
be executed in any number of counterparts, each of which shall be deemed an
original but all of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
THE COMPANY:
FACTUAL DATA CORP.
By: /s/ X.X. Xxxxxx
X.X. Xxxxxx, President
BENTLEY INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, President
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