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EXHIBIT (d)(4)
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (this "Agreement") is entered into as of
January 15, 2001, by and among Intel Corporation ("Parent"), Xircom, Inc. (the
"Company ") and Xxxx Xxxxx, a shareholder of the Company ("Shareholder").
RECITALS
A. The Company is engaged in the research, design, and development, and
manufacture of wired and/or wireless network access products, such products
containing hardware, software, and both hardware and/or software products,
designs and solutions, and all intellectual property embodied in the foregoing,
including but not limited to PC cards in multiple form factors, communications
modules, and modular components (the "Business").
B. Parent, ESR Acquisition Corporation, a wholly owned subsidiary of
Parent ("Acquisition"), and the Company are parties to that certain Agreement
and Plan of Merger dated as of January 15, 2001 (the "Merger Agreement"),
providing for the merger of Acquisition with and into the Company (the
"Merger").
C. As a condition and essential inducement to Parent's and Acquisition's
willingness to enter into the Merger Agreement and in consideration of the
transactions contemplated by the Merger Agreement, Shareholder has agreed to the
provisions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants and agreements in the Merger Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Shareholder hereby covenants and agrees as follows:
1. NONCOMPETITION.
(a) During the period commencing on the date hereof and ending on the
date that is three years after the Effective Time (as defined in the Merger
Agreement), Shareholder, subject to Section 1(b), shall not, directly or
indirectly (including, without limitation, through any existing or future
Affiliate (as defined below)), own, manage, operate, control, enable (whether by
license, sublicense, assignment or otherwise) or otherwise engage or participate
in, or be connected as a shareholder, director, officer, employee, partner,
member, lender, guarantor or advisor of, or consultant to, any corporation,
limited liability company, partnership or other entity or person that, directly
or indirectly, (1) engages in the Business in the Business Area, (2) competes in
the Business in the Business Area against the Company, the Parent, or any of
their direct or indirect subsidiaries (including partnerships or other entities
in which such persons hold more than 50% of the combined voting power) engaged
in the Business, or (3) markets, distributes or sells any products that are
marketed, distributed or sold, directly or indirectly through intermediaries, in
the Business Area that are competitive to Business products marketed sold or
distributed by the Company, the Parent, or any of their existing or future
direct or indirect subsidiaries (including partnerships or other entities in
which such persons hold more than 50% of the combined voting power) engaged in
the Business. Without limiting the generality of the foregoing, Shareholder
shall not, directly or indirectly (including, without limitation, through any
existing or future Affiliate or any other entity or person Shareholder is
associated with in any of the above capacities):
(i) engage in research, development, manufacture, licensing,
marketing, distribution or sale of any existing or future
products or services relating to the Business;
(ii) have any ownership interest in, manage, operate, control, be
connected with as a shareholder (except as permitted by
Section 1(b)), joint venturer, officer, director, agent,
lender, representative, partner or employee of, or
consultant to, or otherwise engage or invest or participate
in, the Business or any person or entity that takes any of
the actions described in Clauses (1), (2) or (3) above;
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(iii) accept any business relating to the Business from any
existing or prospective Business customer of the Company,
the Parent, or any of their existing or future direct or
indirect subsidiaries (including partnerships and other
entities in which such persons hold more than 50% of the
combined voting power) that are engaged in the Business, or
solicit or knowingly encourage any such customer to
terminate or adversely alter any relationship with respect
to the Business such person may have with the Company or any
of its existing or future Affiliates engaged in the
Business; and
(iv) market, sell, distribute, endorse or promote, any products
or services that are competitive with products or services
of the Business or any products or services of the Company,
the Parent, or any of their direct or indirect subsidiaries
(including partnerships and other entities in which such
persons hold more than 50% of the combined voting power)
engaged in the Business.
(b) Consistent with the foregoing provisions of Section 1(a),
Shareholder may own (solely as a passive investor) securities in any
publicly-held corporation that may be engaged in the Business, but only to the
extent Shareholder does not own, of record or beneficially, an aggregate of two
percent (2%) or more of the outstanding beneficial ownership of such
corporation.
(c) The restrictions set forth in this Section 1 shall apply
worldwide (the "Business Area"), due to the global nature of the Business.
(d) "Affiliate", as used herein, means, with respect to any person or
entity, any person or entity directly or indirectly controlling, controlled by
or under direct or indirect common control with such other person or entity.
2. NONSOLICITATION OF EMPLOYEES. During the period commencing on the date
hereof and ending on the date that is three years after the Effective Time (as
defined in the Merger Agreement), Shareholder shall not, either on his or her
own account or for any corporation, limited liability company, partnership or
other entity or person (including, without limitation, through any existing or
future Affiliate), solicit any employee of the Company or any existing or future
Affiliate of the Company to leave his or her employment, or knowingly induce or
knowingly attempt to induce any such employee to terminate or breach his or her
employment agreement, if any.
3. NONSOLICITATION OF CUSTOMERS. During the period commencing on the date
hereof and ending on the date that is three years after the Effective Time (as
defined in the Merger Agreement), Shareholder shall not, directly or indirectly
(including, without limitation, through any existing or future Affiliate),
solicit, cause in any part or knowingly encourage any current or future customer
of the Company or any existing or future Affiliate of the Company engaged in the
Business to cease doing business in whole or in part with the Company or any
such Affiliate with respect to the Business.
4. CONFIDENTIALITY. During the period commencing on the date hereof and
ending on the date that is three years after the Effective Time (as defined in
the Merger Agreement), a breach by Shareholder of the Parent's standard form of
Employee Agreement shall also constitute a breach by Shareholder of this
Agreement. Nothing in this Agreement shall be deemed to limit the effectiveness
of the Employee Agreement.
5. STAY OF TIME. In the event a court of competent jurisdiction or other
entity or person mutually selected by the parties to resolve any dispute
(collectively a "Court") has determined that Shareholder has violated the
provisions of this Agreement, the running of the time period of such provisions
so violated shall be automatically suspended as of the date of such violation
and shall be extended for the period of time from the date such violation
commenced through the date that the Court determines that such violation has
permanently ceased.
6. INJUNCTIVE RELIEF. The remedy at law for any breach of this Agreement
is and will be inadequate, and in the event of a breach or threatened breach by
Shareholder of this Agreement, the Company shall be entitled to
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an injunction restraining Shareholder from breaching or otherwise violating any
provision of this Agreement. Nothing herein contained shall be construed as
prohibiting the Company from pursuing any other remedies available to it or them
for such breach or threatened breach, including, without limitation, the
recovery of damages from Shareholder.
7. NOTICES. All notices and other communications pursuant to this
Agreement shall be in writing and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the addresses set forth below or to such other address as the party
to whom notice is to be given may have furnished to the other parties hereto in
writing in accordance herewith. Any such notice or communication shall be deemed
to have been delivered and received (A) in the case of personal delivery, on the
date of such delivery, (B) in the case of telecopier, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (C) in the case of a
nationally-recognized overnight courier in circumstances under which such
courier guarantees next business day delivery, on the next business day after
the date when sent and (D) in the case of mailing, on the third business day
following that on which the piece of mail containing such communication is
posted:
if to Parent or the Company, to:
Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: General Counsel
and
Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Treasurer
with a copy to:
Weil, Gotshal & Xxxxxx LLP
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
if to Shareholder, to:
Xxxx Xxxxx
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above. Any
party hereto may give any notice, request, demand, claim or other communication
hereunder using any other means (including ordinary mail or electronic mail),
but no such notice, request, demand, claim or other communication shall be
deemed to have been duly given unless and until it actually is received by the
individual for whom it is intended.
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8. SEPARATE COVENANTS. This Agreement shall be deemed to consist of a
series of separate covenants, one for each line of business included within the
Business as it may be conducted by the Company and its successors on or after
the date hereof, and each city, county, state, country or other region included
within the Business Area. The parties expressly agree that the character,
duration and geographical scope of this Agreement are reasonable in light of the
circumstances as they exist on the date upon which this Agreement has been
executed. However, should a determination nonetheless be made by a court of
competent jurisdiction at a later date that the character, duration or
geographical scope of this Agreement is unreasonable in light of the
circumstances as they then exist, then it is the intention and the agreement of
the Company and Shareholder that this Agreement shall be construed by the court
in such a manner as to impose only those restrictions on the conduct of the
Company or Shareholder that are reasonable in light of the circumstances as they
then exist and as are necessary to assure the Company of the intended benefit of
this Agreement. If, in any judicial proceeding, a court shall refuse to enforce
all of the separate covenants deemed included herein because, taken together,
they are more extensive than necessary to assure the Company of the intended
benefit of this Agreement, it is expressly understood and agreed among the
parties hereto that those of such covenants that, if eliminated, would permit
the remaining separate covenants to be enforced in such proceeding shall, for
the purpose of such proceeding, be deemed eliminated from the provisions hereof.
9. SEVERABILITY. If any of the provisions of this Agreement shall
otherwise contravene or be invalid under the laws of any state, country or other
jurisdiction where this Agreement is applicable but for such contravention or
invalidity, such contravention or invalidity shall not invalidate all of the
provisions of this Agreement but rather it shall be construed, insofar as the
laws of that state or other jurisdiction are concerned, as not containing the
provision or provisions contravening or invalid under the laws of that state or
jurisdiction, and the rights and obligations created hereby shall be construed
and enforced accordingly.
10. GOVERNING LAW; CONSENT TO JURISDICTION; CERTAIN WAIVERS. This
Agreement shall be construed in accordance with and governed by the internal
laws (without reference to choice or conflict of laws) of the State of
California. Each of the parties hereto consents to the jurisdiction of any state
or federal court located within the San Xxxx metropolitan area of the State of
California, and irrevocably agrees that all actions or proceedings relating to
this Agreement shall be litigated in one of such courts, and each of the parties
waives any objection that it may have based on improper venue or forum non
conveniens to the conduct of any such action or proceeding in any such court and
waives personal service of any and all process upon it, and consent to all such
service of process made in the manner set forth in Section 7. Nothing contained
in this Section 10 shall affect the right of any party to serve legal process on
any other party in any other manner permitted by law. The parties hereto waive
all rights to a jury trial in connection with actions arising in connection with
this Agreement.
11. AMENDMENTS AND WAIVERS.
(a) This Agreement may be modified only by a written instrument duly
executed by each party hereto.
(b) No waiver by a party of any default, misrepresentation or breach
of a warranty or covenant hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default, misrepresentation or breach of a
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent occurrence. No failure or delay by a party hereto in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided under applicable law.
12. ATTORNEYS' FEES. Should any litigation, arbitration or other
proceeding be commenced between the parties concerning this Agreement
(including, without limitation, the enforcement hereof and the rights and duties
of the parties hereunder), the party prevailing shall be entitled, in addition
to such other relief as may be granted, such party's attorneys' fees in
connection with such litigation, arbitration or other proceeding.
13. ENTIRE AGREEMENT. This Agreement, together with the Merger Agreement
and the ancillary documents executed in connection therewith, contains the
entire understanding of the parties, supersedes all prior
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and contemporaneous agreements and understandings relating to the subject matter
hereof and shall not be amended except by a written instrument hereafter signed
by all of the parties hereto.
14. COUNTERPARTS. This Agreement may be executed by the parties in
separate counterparts, each of which, when so executed and delivered, shall be
an original, but all of which, when taken as a whole, shall constitute one and
the same instrument.
15. SECTION HEADINGS AND REFERENCES. The headings of each Section,
subsection or other subdivision of this Agreement are for reference only and
shall not limit or control the meaning thereof. All references to a Section are
references to a Section of this Agreement, unless otherwise specified, and
include all subparts thereof.
16. ASSIGNS. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors, heirs, personal
representatives and permitted assigns. Neither this Agreement nor any right,
remedy, obligation or liability arising hereunder or by reason hereof nor any of
the documents executed in connection herewith may be assigned by any party
without the consent of the other parties; provided, however, that the Company
may assign its rights hereunder, without the consent of Shareholder, to any
existing or future Affiliate of the Company or Parent and to any person or
entity that acquires or succeeds to all or any part of the Business. No such
assignment shall relieve the assigning party of its obligations hereunder if
such assignee does not perform such obligations.
17. FURTHER ASSURANCES. From time to time, at the Company's request and
without further consideration, Shareholder shall execute and deliver such
additional documents and take all such further action as reasonably requested by
Company, to make effective, in the most expeditious manner possible, the terms
of this Agreement.
18. EXPENSES. Each party hereto shall pay its own expenses in connection
with this Agreement.
19. EARLY TERMINATION. Notwithstanding any other provision of this
Agreement, this Agreement shall terminate and be of no further force and effect
in the event that the Merger shall not occur and the Merger Agreement is
terminated in accordance with its terms.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed on its behalf as of the day and year first above written.
INTEL CORPORATION
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: Vice President and Treasurer
XIRCOM, INC.
By: /s/ XXXXXX X. XXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
SHAREHOLDER
By: /s/ XXXX XXXXX
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Name: Xxxx Xxxxx
SIGNATURE PAGE FOR INTEL CORPORATION/XIRCOM, INC. NONCOMPETITION AGREEMENT
OF XXXX XXXXX
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