EXHIBIT 10.7(d)
NON-COMPETITION AGREEMENT
This Non-Competition Agreement is entered into by and among
Netopia, Inc. ("Netopia"), Serus Acquisition Corp., a Delaware corporation and
wholly owned subsidiary of Netopia ("Subsidiary") and Xxxxxx XxXxxxx ("Member")
as of December 16, 1998.
RECITALS
A. Pursuant to that certain Asset Purchase Agreement (the
"Asset Purchase Agreement") dated as of December 16, 1998 by and among Netopia,
Subsidiary, and Serus LLC, a Utah limited liability company ("Serus"),
Subsidiary will acquire substantially all of the assets, properties, and rights
of Serus (the "Acquisition");
B. Member owns a substantial interest in Serus (whether
through outstanding membership interests or options to purchase membership
interests), and as a participant in the LLC has gained substantial knowledge and
expertise in connection with Serus' products, organization and customers;
C. Netopia, Subsidiary and Member acknowledge that it would be detrimental to
Subsidiary and Netopia if Member were to compete with Subsidiary or Netopia in
any part of the Business (as defined below) following the Acquisition;
D. It is a condition to the obligation of Netopia to
consummate the Acquisition that certain Members of Serus, including Member,
enter into this Agreement; and
E. As inducement to Netopia to consummate the Acquisition, and
in consideration of the amounts paid to Serus under the Asset Purchase
Agreement, Member desires to agree with Netopia as further provided herein;
NOW, THEREFORE, intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
Non-Competition
1.1 Non-Competition.
(a) The parties understand and agree that this Agreement is entered into in
connection with the Acquisition. The parties further understand and agree that
Member is a participating and key Member of Serus and that the Acquisition is
contingent upon Member entering into this Agreement. In addition, the parties
understand that prior to the Acquisition, Serus was engaged in the Business in
each of the fifty states of the United States (together with its territories and
possessions and the District of Columbia). The parties further understand that
Netopia is currently engaged in business in each of the fifty states of the
United States. The United States and the regions set forth above shall hereafter
be referred to as the "Geographic Scope of the Business.") Member further
acknowledges that Subsidiary and Netopia following the Acquisition will continue
conducting such business in all parts of the Geographic Scope of the Business.
The parties expressly acknowledge and agree that the non-competition provisions
contained in this Agreement are permissible and enforceable pursuant to the
provisions of applicable law.
(b) For purposes of this Agreement, the "Restricted Period" shall be one (1)
year from the date of this Agreement. During the Restricted Period, Member shall
not either as an individual or as an employee, agent, consultant, advisor,
independent contractor, general partner, officer or director, shareholder or
investor of any person, firm, corporation, partnership or other entity without
the prior written consent of the Chief Executive Officer of Netopia:
(i) Enter into or engage in the business of developing, marketing or
selling browser based web site editor products;
(ii) Solicit customers or business patronage which results in competition
with Subsidiary or Netopia in the business of developing, marketing or
selling browser based web site editor products; or
(iii) Promote or assist, financially or otherwise, any person, firm,
association, corporation, or other entity engaged in developing,
marketing or selling browser based web site editor products; or
(iv) Solicit employees of Subsidiary or Netopia engaged in the business of
developing, marketing or selling browser based web site editor products
to leave the employ of Subsidiary or Netopia.
Notwithstanding the foregoing, Member may own, directly or
indirectly, solely as an investment, up to one percent (1%) of any class of
"publicly traded securities" of any person or entity which owns a competitive
Business. For the purposes of this Paragraph 1.1, the term "publicly traded
securities" shall mean securities that are traded on a national securities
exchange or listed on the National Association of Securities Dealers Automated
Quotation System.
Further, notwithstanding the foregoing, Member will not be
prohibited from competing with Netopia or Subsidiary in the Geographic Scope of
the Business, if Netopia or Subsidiary or any of their successors, or any entity
deriving title to its good will or shares, ceases to carry on a like Business
therein.
1.2 Arbitration; Consent to Personal Jurisdiction.
(a) Any controversy or claim arising out of or relating to this Agreement, or
the breach thereof, shall be settled in Oakland, California, by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association. The decision of the arbitrator shall be final and binding on the
parties, and judgment on the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. The parties hereby agree that the
arbitrator shall be empowered to enter an equitable decree mandating specific
enforcement of the terms of this Agreement. Subsidiary (or Netopia if then
employing Member) and Member shall share equally all fees and expenses of the
arbitrator; provided, however, that Subsidiary (or Netopia if then employing
Member) or Member, as the case may be, shall bear all fees and expenses of the
arbitrator and all of the legal fees and out-of-pocket expenses of the other
party if the arbitrator determines that the claim or position of Subsidiary (or
Netopia if then employing Member) or Member, as the case may be, was without
reasonable foundation. Member hereby consents to personal jurisdiction of the
state and federal courts located in the State of California for any action or
proceeding arising from or relating to this Agreement or relating to any
arbitration in which the parties are participants.
(b) MEMBER HAS READ AND UNDERSTANDS THIS SECTION 1.2, WHICH DISCUSSES
ARBITRATION. MEMBER UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, MEMBER AGREES TO
SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS
AGREMEENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR
TERMINATION THEREOF TO BINDING ARBITRATION, AND THAT THIS ARBITRATION CLAUSE
CONSTITUTES A WAIVER OF MEMBER'S RIGHT TO A JURY TRIAL AND RELATES TO THE
RESOLUTION OF ALL DISPUTES RELATING TO THIS AGREEMENT.
1.3 Savings Clause. If any restriction set forth in Section 1.1 above is held to
be unreasonable or unenforceable, then Member agrees, and hereby submits, to the
reduction and limitation of such prohibition to such area or period or business
as shall be deemed reasonable.
ARTICLE II
Miscellaneous
2.1 Successors, Assigns. This Agreement shall be binding upon and shall inure to
the benefit of Netopia and its successors and assigns. This Agreement shall be
binding upon Member and shall inure to his benefit and to the benefit of his
heirs, executors, administrators, and legal representatives, but shall not be
assignable by Member.
2.2 Entire Agreement. This Agreement constitutes the entire agreement among
Netopia, Subsidiary and Member relating to the matters herein provided for. This
Agreement supersedes and replaces any prior verbal or written agreements between
the parties. This Agreement may be amended or altered only in a writing signed
by the Chief Executive Officer of Netopia and Member.
2.3 Applicable Law; Severability. This Agreement shall be construed and
interpreted in accordance with the laws of the State of California without
regard to conflicts of laws and principles. Each provision of this Agreement is
severable from the others, and if any provision hereof shall be to any extent
unenforceable it and the other provisions hereof shall continue to be
enforceable to the full extent allowable, as if such offending provision had not
been a part of this Agreement.
2.4 Proprietary Information Agreement. Member shall execute Netopia's
Proprietary Information and Inventions Agreement prior to becoming an employee
of Netopia or Subsidiary.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the date first written above.
SERUS ACQUISITION CORP. NETOPIA, INC.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
Its: Secretary Its: V.P. and CFO
MEMBER
Name:
