NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT ("Agreement"), dated as of
March 11, 1999, is between Wireless Telecom Group, Inc., a New Jersey
corporation ("Neptune"), and Telecom Analysis Systems, Inc., a New Jersey
corporation ("TAS").
WHEREAS, TAS and Neptune have entered into an Asset Purchase
Agreement, dated as of January 7, 1999, between TAS and Neptune (the "Purchase
Agreement") for the sale by Neptune to TAS of the Neptune Assets; and
WHEREAS, the Purchase Agreement provides that Neptune enter
into this Agreement with TAS as a condition to the Closing;
NOW THEREFORE, the parties hereby agree as follows:
1. Effective Date. The effective date of this Agreement shall
be the Closing Date (as defined in the Purchase Agreement).
2. Definitions. (a) Capitalized terms, unless otherwise
defined herein, shall have the meanings given to them in the Purchase
Agreement; and
(b) The following terms shall have the following meanings when
used herein:
(i) with respect to any company, "Subsidiaries" of such
company shall mean any entity with respect to which such company owns,
directly or indirectly, at least 50% of the capital stock or other
equity interest.
(ii) "Field of Activity" shall mean the design, development,
assembly, manufacture or sale of devices, instruments, software and
systems for: emulating radio signal propagation characteristics or
impairments; emulating Public Switched Telephone Network (PSTN)
signaling, transmission conditions and impairments; emulating
subscriber loop characteristics or impairments; testing the
functionality and performance of GPS receiver equipment; emulating
cellular or PCS base station or protocol operation; emulating cable TV
signal transmission media or impairments; and emulating cable TV
head-end or protocol operation. The term Field of Activity shall not
include devices or instruments of which the sole or primary function is
to generate noise, except when such devices or instruments measure an
incoming signal and apply noise at a controlled signal-to-noise ratio.
(iii) "Geographic Area" shall mean New Jersey, and any other
state or any possession or territory of the United States of America or
any other country in which any member of the group of corporations,
associations, partnerships, unincorporated organizations or other
similar organizations existing as of the Closing Date directly or
indirectly controlled by Xxxxxxxxx plc ("Xxxxxxxxx") sells products or
otherwise carries out business in the Field of Activity on or prior to
the Closing Date.
(iv) "Non-Compete Period" shall have the meaning specified in
Section 3 hereof.
3. Covenant Not to Compete. Neptune agrees that during the
period commencing on the Closing Date and continuing until the third anniversary
of the Closing Date (the "Non-Compete Period") it shall not, and shall cause its
Affiliates not to:
(a) directly or indirectly own, manage, operate, control,
consult, advise or otherwise engage or have any interest in, whether as
principal or as agent, representative, consultant, shareholder, partner
or otherwise, alone or in association with any other person,
corporation or other entity, any business in the Field of Activity in
the Geographic Area; or
(b) directly or indirectly, individually or on behalf of other
persons, solicit, aid, attempt to solicit, offer to employ or otherwise
interfere with the relationship of TAS with any officer, director or
employee of TAS.
4. Confidentiality. During the Non-Compete Period, Neptune
covenants that it will not, without the prior written consent of TAS, disclose
to any person confidential information relating to or concerning the Neptune
Business, Neptune Assets or Assumed Neptune Liabilities (the "Confidential
Information"), except to its officers, directors, employees, accountants, legal
counsel and experts for litigation who need to know such information for
purposes of taxes, accounting and pending litigation arising as a result of
Neptune's ownership or operation, on or prior to the Closing Date, of the
Neptune Business, Neptune Assets or Assumed Neptune Liabilities, unless in the
written opinion of legal counsel to Neptune, disclosure is required to be made
under (a) the Securities Act of 1933, as amended; (b) the Securities Exchange
Act of 1934, as amended; (c) the regulations of any securities exchange or
pursuant to any other ap plicable law. In the event that Neptune is requested or
required by documents subpoena, civil investigation demand, interrogatories,
requests or information, or other similar
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process to disclose any Confidential Information, Neptune will provide TAS with
prompt notice of such request or demand or other similar process or, if such
request, demand, or other similar process is not mandatory, request TAS' waiver
of Neptune's compliance with the provisions of this Paragraph 4, as appropriate.
The term "Confidential Information," as used in this Paragraph, does not include
information which (x) is generally available to the public or becomes generally
available to the public other than as a result of disclosure by Neptune, (y) was
available to Neptune on a nonconfidential basis prior to its disclosure by TAS,
or (z) becomes available to Neptune on a nonconfidential basis from a source
that is not bound by a confidentiality agreement with TAS.
5. Exclusions. Nothing in this Agreement shall:
(a) prevent Neptune or its Affiliates from owning less than a
5% interest in the aggregate of the equity securities of any company
whose voting securities are publicly traded, if none of the employees
of Neptune or any of its Subsidiaries, without the written permission
of TAS, participates in the active day-to-day management of such
company; or
(b) prevent Neptune or its Subsidiaries from participating in
venture capital, mutual or investment funds which hold ownership
interests of persons which engage in businesses within the Field of
Activity, if none of Neptune or any of its Subsidiaries or any of their
employees are involved in the active day-to-day management of such
persons.
6. Non-Solicitation. Neptune agrees that, during the
Non-Compete Period, Neptune shall not:
(a) directly or indirectly, solicit the trade of, or trade
with, any individual or entity ("Person") that Neptune knows or has
reason to know is a customer or supplier of Xxxxxxxxx for any competing
business purpose in the Field of Activity other than for the benefit of
Xxxxxxxxx;
(b) directly or indirectly interfere with Xxxxxxxxx'x business
relationship in the Field of Activity with any Person that Neptune
knows or has reason to know is a customer or supplier of Xxxxxxxxx; or
(c) directly or indirectly, solicit or induce, or attempt to
solicit or induce any Person that Neptune knows or has reason to know
is a sales representative, agent or distributor of Xxxxxxxxx in the
Field of Activity to cease
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representing Xxxxxxxxx for any reason whatsoever, or interfere with the
business relationship of Xxxxxxxxx with any Person that Neptune knows
or has reason to know is a sales representative, agent or distributor
in the Field of Activity.
7. Consideration. In consideration of the foregoing covenants
of Neptune, TAS agrees to pay $200,000 to Neptune on the Closing Date in
immediately available funds.
8. Severability. The covenants contained herein shall be
construed as a series of separate covenants which are identical in terms except
for the subject matter and geographical coverage and temporal duration. If any
court of competent jurisdiction determines that any such separate covenant is
not fully enforceable pursuant to its terms, such covenant shall be deemed
modified or severed and the remainder of such covenant and this Agreement shall
be enforced to the fullest extent permitted by applicable law and consistent
with the intent of the parties expressed hereunder.
9. Injunctive Relief. The parties acknowledge that the
covenants contained herein are of a special and unique character and that any
breach of any such covenants or obligations would cause irreparable harm for
which remedies at law are inadequate. The parties hereto shall have the right to
injunctive or other equitable relief, in addition to all of their other rights
and remedies at law to enforce the provisions of this Agreement. All costs and
expenses (including attorneys' fees) reasonably incurred in any dispute
concerning the enforcement of this Agreement shall be borne by the
non-prevailing party.
10. Third Party Beneficiaries. Each of Xxxxxxxxx plc, and any
member of the group of corporations, associations, partnerships, unincorporated
organizations or other similar organizations directly or indirectly controlled
by Xxxxxxxxx plc, is an express third party beneficiary of the representations,
warranties, undertakings and covenants of Neptune under this Agreement, entitled
to the benefits of this Agreement as if each were a party hereto.
11. Assignment. This Agreement and the rights and obligations
hereunder shall not be assignable without the prior written consent of the other
party hereto, provided that TAS may assign this Agreement (a) to any Affiliate
of TAS without such consent or (b) subsequent to the Closing, to any transferee
of the Neptune Business, Neptune Assets or Assumed Neptune Liabilities that
executes a written assumption of the obligations of TAS hereunder.
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12. Amendment; Waivers, etc. No amendment, modification or
discharge of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, discharge or waiver is sought. Any
such waiver shall constitute a waiver only with respect to the specific matter
described in such writing and shall in no way impair the rights of the party
granting such waiver in any other respect or at any other time. Neither the
waiver by any of the parties hereto of a breach of or a default under any of the
provisions of this Agreement, nor the failure by any of the parties, on one or
more occasions, to enforce any of the provisions of this Agreement or to
exercise any right or privilege hereunder, shall be construed as a waiver of any
other breach or default of a similar nature, or as a waiver of any of such
provisions, rights or privileges hereunder.
13. Notices. All notices to any party shall be delivered in
accordance with Section 13.6 of the Purchase Agreement to the following
addresses:
(i) if to TAS:
Telecom Analysis Systems, Inc.
00 Xxxxxxxxxx Xxx Xxxx, Xxxxx 0
Xxxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: President
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with a copy to:
Xxxxxxxxx plc
Xxxxxxx Xxxx
Xxxxxxx, Xxxx Xxxxxx
XX000XX Xxxxxx Xxxxxxx
Telephone: 00-000-000-0000
Telecopy: 00-000-000-0000
Attention: Company Secretary
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
(ii) if to Neptune:
Wireless Telecom Group, Inc.
East 00 Xxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: President
with a copy to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
(000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
or, in each case, at such other address as may be specified in writing to the
other parties hereto.
14. Miscellaneous. Each party represents and warrants to the
other that, with respect to itself, this Agreement has been duly authorized and
validly executed,
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and is a valid and binding obligation enforceable against such party in
accordance with its terms. This Agreement shall be governed by and construed in
accordance with the laws of the state of New York.
15. Headings. The headings contained in this Agreement are for
purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement.
16. Entire Agreement. This Agreement and the Purchase
Agreement constitute the entire agreement and supersede all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
17. Counterparts. This Agreement may be executed in several
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same agreement.
18. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns.
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IN WITNESS WHEREOF, the parties have caused the
Non-Competition Agreement to be duly executed as of the date first written
above.
TELECOM ANALYSIS SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
WIRELESS TELECOM GROUP, INC.
By: /s/ Xx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: President
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