NON-COMPETITION AND NON-SOLICITATION AGREEMENT
Exhibit 2.4
EXECUTION
COPY
This Non-Competition and
Non-Solicitation Agreement dated February 28, 2010 (this “Agreement”) is among Marc Xxxxx Xxxxxx (the
“Management
Securityholder”), RiskMetrics Group, Inc., a
corporation formed under
the laws of the State of Delaware (including its subsidiaries, the “Company”) and MSCI Inc., a corporation formed
under the laws of the State of Delaware (including its subsidiaries,
“Parent”). Capitalized terms used but
not otherwise defined
herein shall have the meanings set forth in the Agreement and Plan of Merger
dated as of February 28, 2010 (the “Merger
Agreement”) by and among the Company, Parent, and
Crossway Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent.
W I T N E S S E T H:
WHEREAS, the Management Securityholder
is the beneficial owner of Company Stock and Company Stock Options in respect of
which the Management Securityholder is receiving consideration pursuant to the
Merger Agreement at the Closing.
NOW, THEREFORE, in consideration of the
foregoing and of the covenants and obligations hereinafter set forth, the
parties hereto, intending to be legally bound, hereby agree as
follows:
Section 1. Non-Competition.
(a) During the Restricted Period
(as defined below), the
Management Securityholder agrees not to, directly or indirectly, for any reason,
own, assist or have any interest in, a Person or business in competition with
the Restricted Business (as defined below) or engage in a business in
competition with the Restricted Business, in
any capacity, whether as an employee, officer, director, principal, proprietor,
shareholder, independent contractor, consultant, advisor, agent, representative
or partner, anywhere in the world, including on behalf of or together with any other Person, or
directly as an employee of, any other company.
(b) The term “Restricted
Business” as used in this Agreement shall mean
any business engaged in or actively planned to be engaged in by the Company as
of the Closing
Date.
Section 2. Non-Solicitation. During the Restricted
Period, the Management Securityholder agrees not to, either on his own behalf or
on behalf of any other Person, directly or indirectly:
(a) (i) hire, solicit,
encourage or otherwise induce or influence to leave the employ or service of the
Company or Parent any person who is then, or during the immediately preceding
six months was, either (A) an employee of or (B) an independent contractor,
providing services equal to at least 50% of those provided by a full time
employee, to, in either case (x) the Company or, (y) if known after due inquiry,
Parent, or (ii) attempt to hire, solicit, encourage, recruit or otherwise induce
any such person to work or otherwise provide services, either for the Management
Securityholder or for any other Person; or
(b) solicit, entice away or
divert any client, customer or account of (i) the Company or, (ii) if
known after due inquiry,
Parent’s risk analytics business, in either
case for which the Company or Parent’s risk analytics business is then doing
or has done work during the immediately preceding 12 months, but solely to the
extent such solicitation, enticement or diversion relates to the Restricted
Business. The Management Securityholder agrees that client or customer lists, business contracts
and related items of the Company or Parent are the property of the Company or
Parent, as applicable.
Section 3. Restricted
Period. The
“Restricted
Period” shall be the period commencing
on the Closing Date and ending on December 31, 2011. The Restricted Period shall
be extended by the length of time during which it is judicially determined that
the Management Securityholder has violated such
restrictions set forth in this Agreement, in any material respect. If
the Merger Agreement is
terminated, this Agreement automatically shall be null, void and of no force and
effect without further action by any of the parties hereto or any other
Person.
Section
4. Representations. Each
party hereto hereby represents and warrants
that (a) the execution, delivery and performance of this Agreement by such party
and the consummation of the transactions contemplated hereby are within its
powers and have been authorized by all necessary action on the part of such
party, (b) this Agreement
constitutes a valid and binding agreement of such party and (c) the execution,
delivery and performance of this Agreement by such
party (1) will not violate any agreement with any Person by such
party and (2) will not violate any applicable law or
regulation.
Section 5. Severability. If any provision contained in this
Agreement shall for any reason be held invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. It is the
intention of the parties that if any restriction or covenant contained in
Section 1 or Section 2 is held to cover a geographic area or to be
for a length of time which is not permitted by applicable law, or is in any way
construed to be too broad or to any extent invalid, such provision shall not be
construed to be null, void and of no effect, but to the extent such provision would be valid or
enforceable under
applicable law, a court of competent
jurisdiction shall construe and interpret or reform such provision to provide
for a restriction or covenant having the maximum enforceable geographic area,
time period and other provisions (not greater
than those contained herein) as shall be valid and enforceable under such
applicable law.
Section 6. Rights and Remedies
for Breach.
(a) Specific
Performance. The
Management Securityholder acknowledges that the Company and Parent would be
irreparably harmed by any breach of Section 1 or Section 2 of this Agreement and
that there would be no adequate remedy at law or in damages to compensate the
Company or Parent for any such breach. The Management
Securityholder agrees that the Company and Parent
shall be entitled to seek injunctive relief requiring specific performance by
the Management Securityholder of such Sections, in addition to any other remedy
to which they are entitled at law or in equity.
(b) Other
Remedies. If the
Management Securityholder breaches any of the covenants set forth in Section 1
or Section 2 of this Agreement, the Management Securityholder agrees that the
Company and Parent shall be entitled to seek all rights and remedies available
at law or in
equity.
Section 7. Counterparts;
Effectiveness; Termination. This Agreement may be executed in any
number of counterparts, each of which will be deemed to be an original copy of
this Agreement and all of which, when taken together, will be deemed to constitute one and the same
agreement. This Agreement shall become effective at the
Closing Date and, except for Section 6 which shall survive and continue in full
force following termination of the Agreement, shall terminate at the end of the
Restricted Period.
Section 8. Permitted
Activities. This
Agreement shall not restrict or prohibit the Management Securityholder from
directly or indirectly acquiring or owning not more than five percent (5%) of
any class of securities of any company that is publicly traded as a passive
investment.
Section 9. Governing
Law. This
Agreement shall be governed by and construed in accordance with the law of the
State of Delaware, without regard to the conflicts of law
rules of such state.
[Signature
page
follows.]
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed as of the day and year first above
written.
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RISKMETRICS GROUP,
INC.
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By:
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/s/ Xxxxxx
Xxxxxxxx
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Name:
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Xxxxxx
Xxxxxxxx
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Title:
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General
Counsel
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By:
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/s/ Xxxxx
Xxxxxxxxx
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Name:
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Xxxxx
Xxxxxxxxx
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Title:
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Chief Executive
Officer
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MANAGEMENT
SECURITYHOLDER
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By:
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/s/ Marc Xxxxx
Xxxxxx
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Marc Xxxxx
Xxxxxx
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[SIGNATURE PAGE TO
NON-COMPETITION AND NON-SOLICITATION AGREEMENT]
