1
Exhibit 10.02
2
AGREEMENT
THIS AGREEMENT is made as of the 9th day of April, 1997 by and among
TradeWave Corporation, a Florida corporation (the "Buyer"), TradeWave
Corporation, a Delaware corporation ("Seller"), and SunRiver Corporation, a
Delaware corporation ("SunRiver, and each of Seller and SunRiver Corporation a
"Covenantor" and collectively the "Coventors").
By an Agreement dated April 9, 1997 (the "Purchase Agreement"), the
Buyer agreed to purchase from Seller all those assets, properties, privileges,
rights, interests, business and goodwill owned by Seller or in which Seller has
an interest (except the Excluded Assets, as such term in defined in the Purchase
Agreement) that are used or held for use in connection with the operation of the
business of developing, marketing, licensing and supporting a suite of software
products and related services (the "BUSINESS") with such transaction being
closed on April 9, 1997 (the "Closing Date"). SunRiver executed a separate
letter agreement with Buyer on April 9, 1997 relating to the Purchase Agreement.
It is understood that such purchase includes the purchase of the
goodwill of the Business. Buyer would be irreparably injured if any Covenantor
were to disclose any of the confidential information concerning the business and
operations of the Business which Covenantor has or may acquire or if any
Covenantor were to enter into any business competition with the Business. The
obligations of Buyer under the Purchase Agreement are expressly subject to
certain covenants and conditions set forth therein, including the execution and
delivery of this Agreement by Covenantors and Buyer.
Therefore, In consideration of all the terms and conditions contained
herein and in the Purchase Agreement, the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. NONCOMPETITION.
Each Covenantor covenants and agrees that it will not, for a period of
three years after the Closing Date, without the Buyer's prior written consent,
directly or indirectly, engage in any business, enterprise or employment,
whether as owner, operator, shareholder, director, partner, creditor,
consultant, agent or any capacity whatsoever that manufactures products designed
to compete directly with the Business purchased by Buyer, or similar business
conducted by Buyer's parent company or any of Buyer's affiliated companies (the
Buyer, its parent company and affiliated companies are hereafter referred to as
the "Affiliated Companies") or markets such products anywhere in the world where
the Affiliated Companies (i) are engaged in business or (ii) have evidenced an
intention of engaging in business. Buyer acknowledges and agrees that the nature
of the geographical restrictions are reasonable given the international nature
of the Affiliated Companies' business. Notwithstanding the foregoing provisions
of this Section 1, either Covenantor may
3
invest in a company that would be deemed to be a competitor as described in the
previous sentence ("Competitor"), so long as the Covenantor would not be deemed
an "affiliate" of the Competitor as defined by the Securities Act of 1933, as
amended, or the rules promulgated thereunder.
2. CONFIDENTIALITY
Each Covenantor hereby agrees to hold in strict confidence all secret or
confidential information (other than such information as is publicly available
from a source other than such Covenantor or its officers and director, if
applicable) relating to the Business and not, without the prior written consent
of Buyer, to disclose such information to anyone other than (i) disclosure to
Buyer and those designated by Buyer, and (ii) any disclosure which is required
by law.
3. NONSOLICITATION
Each Covenentor agrees that it will not, for a period of three years
from the date hereof, directly or indirectly, for itself or for any other person
or entity (i) cause any employee of Buyer to breach such employee's fiduciary
duties to or business relationship with Buyer, (ii) attempt to employ, employ or
enter into any contractual arrangement with any employee or former employee of
the Seller or the Business or the Buyer unless such employee or former employee
has not been employed by Seller or an Affiliated Company for a period in excess
of six months or (iii) call on or solicit any of the actual or targeted
prospective Customers (as hereafter defined) of the Business or an Affiliated
Company with respect to any matters related to or competitive with the Business
or the Buyer. For the purposes of this subsection, the term "Customer" shall
mean any individual or entity to whom Seller, within one year prior to the
Closing Date, has provided products or services in any way related to the
Business.
4. ENFORCEABILITY
a) Each Covenantor agrees and warrants that the covenants
contained herein are reasonable, that valid consideration has
been and will be received therefor and that the agreements set
forth herein are the result of arms-length negotiation between
the parties hereto.
b) Each Covenantor acknowledges that in the event of any
violation of the covenants contained in Section 1, 2, or 3
hereof, Buyer's damages will be difficult to ascertain and
Buyer's remedy at law will be inadequate. Accordingly, each
Covenantor agrees that, in addition to such remedies as Buyer
may have at law, Buyer shall be entitled to specific
performance of such covenants and to an injunction, without
the posting of a bond, to prevent any continuing violation
thereof.
2
4
c) If any provision of or covenant contained in this Agreement is
hereafter construed to be invalid or unenforceable in any
jurisdiction, the same shall not affect the remainder of the
provisions or the enforceability thereof in any other
jurisdiction, which shall be given full effect, without regard
to the invalidity or unenforceability in such other
jurisdiction. If any provision of or covenant contained in
this Agreement is held to be unenforceable in any jurisdiction
because of the duration or geographical scope thereof, the
parties agree that the court making such determination shall
have the power to reduce the duration or geographical scope of
such provision or covenant and, in its reduced form, said
provision or covenant shall be enforceable; provided, however,
that the determination of such court shall not affect the
enforceability of such provision or covenant in any other
jurisdiction.
5. BINDING AGREEMENT.
This Agreement shall be binding upon, and inure to the benefit of
Covenantors and the Buyer and their respective heirs and permitted successors
and assigns.
6. CONSOLIDATION, MERGER, OR SALE OF ASSETS
Nothing in this Agreement shall preclude Buyer from consolidating or merging
into or with, or transferring all or substantially all of its assets or the
assets associated with the Business to another corporation or other entity which
assumes this Agreement and all obligations and undertakings of Buyer hereunder.
In addition, nothing shall preclude Buyer from changing its name at any time
after the date hereof. Upon such a consolidation, merger, transfer of assets and
assumption, or name change, the term the "Buyer" as used herein, shall mean such
corporation or other business entity, and this Agreement shall continue in full
force and effect.
7. WAIVER OF COMPLIANCE; CONSENTS
Except as otherwise provided in this Agreement, any failure of any of the
parties to comply with any obligation, representation, warranty, covenant,
agreement or condition herein may be waived by the party entitled to the
benefits thereof only by a written instrument signed by the party granting such
waiver, but such waiver or failure to insist upon strict compliance with such
obligation, representation, warranty, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure. Whenever this Agreement requires or permits consent by or on behalf of
any party hereto, such consent shall be given in writing in a manner consistent
with the requirements for a waiver of compliance as set forth in this Section 7.
3
5
8. MISCELLANEOUS TERMS AND COVENANTS
a) Counterparts. This Agreement may be executed in one or more
counterparts, none of which need contain the signatures of all
parties, each of which shall be deemed an original, and all of
which together shall constitute one and the same instrument.
It shall not be necessary in making proof of this Agreement to
produce or account for more than the number of counterparts
containing the respective signatures of, or on behalf of, all
of the parties hereto.
b) Gender. This agreement uses pronouns in the neuter gender to
refer to all parties. It is understood that one or more
parties to this Agreement are individuals, and the neuter
shall be deemed also to serve as a masculine or feminine
pronoun, as appropriate.
c) Governing law. This agreement shall be governed by the laws of
the State of Florida, excluding its choice of law rules.
d) Third Party Beneficiary. The Affiliated Companies shall be
deemed to be third party beneficiaries of this agreement,
entitled to enforce the provisions hereof against the
Covenantors.
e) Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given when (i)
delivered by hand; (ii) acknowledgment of receipt is sent by
the party to whom a facsimile transmission was sent or (iii)
on the third business day after being mailed by registered or
certified mail (return receipt requested), postage prepaid, to
the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
If to Seller:
TradeWave Corporation
c/o Sun River Corporation
0000 Xxxxxxxx Xxxxxxxxx
Echelon IV, Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx Xxxxxxxxx
4
6
Copies to:
Xxxxx X. Xxxxxxxxx, Esq.
Chamberlain, Hrdlicka, White, Xxxxxxxx & Xxxxxx
0000 Xxxxx Xx., Xxxxx 0000
Xxxxxxx, XX 00000
If to SunRiver Corporation
Sun River Corporation
0000 Xxxxxxxx Xxxxxxxxx
Echelon IV, Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
If to Buyer:
TradeWave Corporation
CyberGuard Corporation
Xxxx Xxxxxxx Xxxxx Xxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
The parties have caused this Agreement to be executed and delivered as
of the date first above written.
TRADEWAVE CORPORATION, a Florida corporation
/s/ Xxxxxx X. Xxxxxxxx
By: Xxxxxx X. Xxxxxxxx
TRADEWAVE CORPORATION, a Delaware corporation
/s/ Xxxxx Xxxxxxxxx
By: Xxxxx Xxxxxxxxx
SUNRIVER CORPORATION
/s/ Xxxxx Xxxxxxxxx
By: Xxxxx Xxxxxxxxx
5