THIS NONCOMPETITION AGREEMENT (the "Agreement") made and entered into as of _________,_________,_________(M,D,Y), by and among AAA, Inc., a _________(Address) corporation ("Buyer"), and _________(Name) ("Promisor").
WHEREAS, pursuant to the Agreement and Plan of Reorganization dated as of _________,_________,_________(M,D,Y) (the "Purchase Agreement"), by and among Buyer, Galapagos Acquisition Corp., a _________(PLACENAME) corporation and the wholly-owned subsidiary of Buyer ("Galapagos"), and GigaPixel Corporation, a _________(PLACENAME) 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.