Noncompetition Agreement - 3dfx Interactive Inc. and Philip Carmack
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (the "Agreement") made and entered into as of
the 20th day of July, 2000, by and among 3dfx Interactive, Inc., a California
corporation ("Buyer"), and Philip Carmack ("Promisor").
WITNESSETH:
WHEREAS, pursuant to the Agreement and Plan of Reorganization dated as of
March 27, 2000 (the "Purchase Agreement"), by and among Buyer, Galapagos
Acquisition Corp., a Delaware corporation and the wholly-owned subsidiary of
Buyer ("Galapagos"), and GigaPixel Corporation, a Delaware corporation (the
"Company"), Galapagos shall merge with and into the Company and the Company
shall be the surviving corporation in the Merger (as defined in the Purchase
Agreement);
WHEREAS, the Purchase Agreement provides, as a condition to the closing
thereunder, that Promisor shall execute and deliver this Agreement;
WHEREAS, the agreements of Promisor hereunder are an important aspect of the
transactions under the Purchase Agreement, and Buyer would not consummate such
transactions absent the execution and delivery by Promisor of this Agreement;
WHEREAS, the Company has been and is presently engaged in the development,
implementation, license, sale and/or other distribution of high-performance 3D
graphics hardware and software (the "Business") in and around the territories
specified in Schedule I attached hereto (collectively, the "Territory");
WHEREAS, Promisor and Promisor's affiliates have substantial financial
resources, experience in the Business and the ability to operate a business or
businesses that could compete with the Company in the Business or in related
businesses following the Closing; and
WHEREAS, the agreements of Promisor hereunder are reasonable and necessary,
both in scope and duration, to protect the business and goodwill of the Company
that will be acquired pursuant to the Purchase Agreement, and the Company would
suffer damages, including the loss of profits, if Promisor or any of Promisor's
affiliates engaged, directly or indirectly, in a competing business with the
Company or Buyer.
NOW, THEREFORE for and in consideration of the premises and of the mutual
representations, warranties, covenants and agreements contained herein, and of
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and upon the terms and subject to the conditions
hereinafter set forth, the parties do hereby agree as follows:
1. Consideration; Disclosure of Information. For and in consideration of the
sum of $50,000, the receipt and sufficiency of which are acknowledged by
Promisor, Promisor agrees that for a period of three (3) years from the date
hereof, without the prior written consent of Buyer, Promisor shall not, directly
or indirectly, through any form of ownership, in any individual or
representative or affiliated capacity whatsoever, except as may be required by
law, reveal, divulge, disclose or communicate to any person, firm, association,
corporation or other entity in any manner whatsoever information of any kind,
nature or description concerning: (i) the names of any prior or present
suppliers or customers of the Company or Buyer, (ii) the prices for which the
Company or Buyer obtains or has obtained products or services, (iii) the names
of the personnel of the Company or Buyer, (iv) the manner of operation of the
Company or Buyer, (v) the plans, trade secrets, or other confidential or
proprietary data of any kind, nature or description, whether tangible or
intangible, of the Company or Buyer, or (vi) any other financial, statistical or
other information that the Company or Buyer designates or treats as confidential
or proprietary. The agreements set forth herein shall not apply to any
information that at the time of disclosure or thereafter is generally available
to and known by the public (other than as a result of a disclosure directly or
indirectly by Promisor in violation of this Agreement), the disclosure of which
is required by law, regulation, order, decree or process or is otherwise
approved by the Company or Buyer. Without regard to whether any or all of the
foregoing matters would be deemed confidential, material or important, the
parties hereto stipulate that as between them, the same are important, material
and confidential and gravely affect the effective and successful conduct of the
Business and its goodwill.
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2. Noncompetition. Promisor agrees that for a period of three (3) years from
the date hereof, Promisor shall not:
(i) Call upon, solicit, divert, take away or attempt to call upon,
solicit, divert or take away any past, existing or potential customers,
suppliers, businesses, or accounts of (a) the Company or (b) the Business in
connection with any business substantially similar to the Business in the
Territory;
(ii) Hire, attempt to hire, contact or solicit with respect to hiring
for Promisor or on behalf of any other person any present or future employee
of the Company or Buyer in the Business;
(iii) Engage in, or give any advice to any person, firm, partnership,
association, venture, corporation or other entity engaged in, a business
substantially similar to the Business in the Territory;
(iv) Lend credit, money or reputation for the purpose of establishing
or operating a business substantially similar to the Business in the
Territory;
(v) Do any act that Promisor knew or reasonably should have known might
injure the Company or Buyer; and
(vi) Without limiting the generality of the foregoing provisions,
conduct a business substantially similar to the Business, whether or not
under the name "GigaPixel" or any other trade names, trademarks or service
marks used by the Company or Buyer in the Territory.
The covenants in subsections (i) through (vi) are intended to restrict
Promisor from competing in any manner with the Company or the Business in the
activities that have heretofore been carried on by the Company. The obligations
set forth in subsections (i) through (vi) above shall apply to actions by
Promisor, through any form of ownership, and whether as principal, officer,
director, agent, employee, employer, consultant, shareholder or holder of any
equity security (beneficially or as trustee of any trust), lender, partner,
joint venturer or in any other individual or representative or affiliated
capacity whatsoever. However, none of the foregoing shall prevent Promisor from
being the holder of up to 5.0% in the aggregate of any class of securities of
any corporation engaged in, directly or indirectly, the activities described in
subsections (i) through (vi) above, provided that such securities are listed on
a national securities exchange or reported on Nasdaq.
3. Enforcement of Covenants.
3.1 Promisor acknowledges that a violation or attempted violation of any of
the covenants and agreements in Sections 1 and 2 above will cause such damage to
Buyer and the Company as will be irreparable, the exact amount of which would be
difficult to ascertain and for which there will be no adequate remedy at law,
and accordingly, Promisor agrees that Buyer and the Company shall be entitled as
a matter of right to an injunction issued by any court of competent
jurisdiction, restraining such violation or attempted violation of such
covenants and agreements by Promisor, or the affiliates, partners or agents of
such Promisor, as well as recover from Promisor any and all costs and expenses
sustained or incurred by Buyer and the Company in obtaining such an injunction,
including, without limitation, reasonable attorneys' fees. Promisor agrees that
no bond or other security shall be required in connection with such injunction.
Promisor further agrees that the periods of restriction set forth in Sections 1
and 2 above shall be tolled during any period of violation thereof by Promisor.
Any exercise by Buyer or the Company of their respective rights pursuant to this
Section 3 shall be cumulative and in addition to any other remedies to which
Buyer or the Company may be entitled. Each party represents and warrants that it
has been represented by counsel in the negotiation and execution of this
Agreement, including without limitation the provisions set forth above in this
Section 3(a) concerning the recovery of attorney's fees.
3.2 Promisor understands and acknowledges that each of Buyer and the Company
shall have the right, in its sole discretion, to reduce the scope of any
covenants set forth in Sections 1 and 2, or any portion thereof, without
Promisor's consent, effective immediately upon receipt by Promisor of written
notice thereof; and Promisor agrees that Promisor shall comply forthwith with
any covenant as so modified, which shall be fully enforceable as so revised in
accordance with the terms of this Agreement.
4. Intellectual Property. Promisor recognizes and agrees that, on and after
the date hereof, Promisor will not have the right to use for Promisor's own
account any of the service marks, trademarks, trade names, licenses, procedures,
processes, labels, trade secrets or customer lists owned by or licensed to the
Company.
5. Validity. To the extent permitted by applicable law, if it should ever be
held that any provision contained herein does not contain reasonable limitations
as to time, geographical area or scope of activity to be restrained, then the
court so holding shall at the request
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of Buyer or the Company reform such provisions to the extent necessary to cause
them to contain reasonable limitations as to time, geographical area and scope
of activity to be restrained and to give the maximum permissible effect to the
intentions of the parties as set forth herein; and the court shall enforce such
provisions as so reformed. If, notwithstanding the foregoing, any provision
hereof is held to be illegal, invalid or unenforceable under present or future
laws effective during the term hereof, such provision shall be fully severable;
this Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or enforceable provision or by its severance
here from. Furthermore, in lieu of such illegal, invalid or unenforceable
provision there shall be added automatically by Buyer or the Company as a part
hereof a provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable, and the
parties hereby agree to such provision.
6. Notice. Any notice, request, instruction, document or other communication
to be given hereunder by any party hereto to any other party hereto shall be in
writing and validly given if (i) delivered personally, (ii) sent by telecopy
with electronic confirmation of receipt, (iii) delivered by overnight express,
or (iv) sent by registered or certified mail, postage prepaid, as follows:
If to Buyer:
3dfx Interactive, Inc.
4435 Fortran Drive
San Jose, CA 95134
Attn: President
cc: Legal Department
Facsimile Number (408) 262-5551
If to Promisor:
Philip Carmack
c/o 3dfx Interactive, Inc.
4435 Fortran Drive
San Jose, CA 95134
Facsimile Number (408) 262-5551
and marked "Personal and Confidential"
With a copy to:
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or at such other address for a party as shall be specified by like notice. Any
notice that is delivered personally, or sent by telecopy or overnight express in
the manner provided herein shall be deemed to have been duly given to the party
to whom it is directed upon receipt by such party. Any notice that is addressed
and mailed in the manner herein provided shall be conclusively presumed to have
been given to the party to whom it is addressed at the close of business, local
time of the recipient, on the fourth day after the day it is so placed in the
mail.
7. Entire Agreement. This Agreement contains the entire agreement of the
parties hereto with respect to the matters covered hereby, and supersedes all
prior agreements and understandings, both written and oral, between the parties
with respect to the subject matter hereof.
8. Modification and Waiver. No modification or amendment of any of the
terms, conditions or provisions in this Agreement may be made otherwise than by
written agreement signed by the parties hereto, except as provided in Sections
3.2 and 5 hereof. The waiver by any party to this Agreement of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by any party nor shall such waiver constitute a continuing
waiver.
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9. Successors and Assigns. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. Neither this Agreement nor any
rights, interests or obligations hereunder may be assigned by Promisor without
the prior written consent of the other parties hereto, and any purported
assignment in violation of this Section 9 shall be null and void.
10. Headings. The headings of the sections of this Agreement are inserted
for convenience of reference only and shall not be deemed to constitute part of
this Agreement or to affect the construction hereof.
11. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED, ENFORCED AND GOVERNED
BY THE INTERNAL LAW OF THE STATE OF CALIFORNIA.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and such counterparts together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly caused this Agreement to be
executed as of the date first above written.
BUYER:
3DFX INTERACTIVE, INC.
By: /s/ DAVID ZACARIAS
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Printed Name: David Zacarias
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Title: Vice President, Administration and
Chief Financial Officer
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PROMISOR:
/s/ PHILIP CARMACK
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SCHEDULE I
TERRITORY
United States of America
European Union
Asia