NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT ("Agreement"), dated as of
March 11, 1999, is between Telecom Analysis Systems, Inc., a New Jersey
corporation ("TAS") and Wireless Telecom Group, Inc., a New Jersey corporation
("Neptune").
WHEREAS, Neptune and TAS have entered into an Asset Purchase
Agreement, dated as of January 7, 1999, between Neptune and TAS (the "Purchase
Agreement") for the sale by TAS to Neptune of the TAS Assets; and
WHEREAS, the Purchase Agreement provides that TAS enter into
this Agreement with Neptune 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 stand-alone noise generation products.
(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 Neptune (together with Neptune, the "Neptune
Group") 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. TAS 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 Neptune with any officer, director
or employee of Neptune.
4. Confidentiality. During the Non-Compete Period, TAS
covenants that it will not, without the prior written consent of Neptune,
disclose to any person confidential information relating to or concerning the
TAS Business, TAS Assets or Assumed TAS Liabilities (the "Confidential
Information"), except to its officers, direc tors, 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 TAS'
ownership or operation, on or prior to the Closing Date, of the TAS Business,
TAS Assets or Assumed TAS Liabilities, unless in the written opinion of legal
counsel to TAS, 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 applicable
law. In the event that TAS is requested or required by documents subpoena, civil
investigation demand, interrogatories, requests or information, or other similar
process to disclose any Confidential Information, TAS will provide Neptune 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 Neptune's
waiver of TAS' compliance with the provisions of this Paragraph 4, as ap
propriate. 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 TAS, (y) was available to TAS on a nonconfidential basis prior to its
disclosure by Neptune, or (z) becomes available to TAS on a nonconfidential
basis from a source that is not bound by a confidentiality agreement with
Neptune.
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5. Exclusions. Nothing in this Agreement shall:
(a) prevent TAS 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 TAS
or any of its Subsidiaries, without the written permission of Neptune,
participates in the active day-to-day management of such company;
(b) prevent TAS 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 TAS or any of its Subsidiaries or any of their
employees are involved in the active day-to-day management of such
persons;
(c) prevent TAS or its Affiliates from designing, developing,
assembling, manufacturing or selling products that include noise
generation as a function, including but not limited to the TAS 4600
Noise and Interference Emulator and any other systems which include
noise generation as a function in a multifunction device or system; or
(d) prevent TAS or its Affiliates from acquiring by merger,
consolidation, stock purchase, asset purchase or otherwise, any entity
(other than Micronetics Wireless, Inc. or any successor to Micronetics
or any purchaser of all or substantially all of the assets or business
of Micronetics in the Field of Activity ("Micronetics")) or all or
substantially all of the assets of any entity (other than Micronetics)
that is engaged in the Field of Activity, so long as not more than 10%
of such entity's annual revenues are derived from such entity's
operations in the Field of Activity, provided however, for a period not
to exceed 90 days, after the date of such an acquisition TAS shall
negotiate in good faith exclusively with Neptune regarding a purchase
on commercially reasonable terms by Neptune of the assets of such
acquired entity used primarily in the Field of Activity. If at the end
of such 90-day period, TAS and Neptune are unable to agree on
commercially reasonable terms satisfactory to both parties, TAS shall
have no further obligations to Neptune under the proviso in the
immediately preceding sentence.
6. Non-Solicitation. TAS agrees that, during the Non-Compete
Period, TAS shall not:
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(a) directly or indirectly, solicit the trade of, or trade
with, any individual or entity ("Person") that TAS knows or has reason
to know is a customer or supplier of the Neptune Group for any
competing business purpose in the Field of Activity other than for the
benefit of the Neptune Group;
(b) directly or indirectly interfere with the Neptune Group's
business relationship in the Field of Activity with any Person that TAS
knows or has reason to know is a customer or supplier of the Neptune
Group; or
(c) directly or indirectly, solicit or induce, or attempt to
solicit or induce any Person that TAS knows or has reason to know is a
sales representative, agent or distributor of the Neptune Group in the
Field of Activity to cease representing the Neptune Group for any
reason whatsoever, or interfere with the business relationship of the
Neptune Group with any Person that TAS 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 TAS, Neptune agrees to pay $200,000 to TAS 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 member of the Neptune
Group is an express third party beneficiary of the representations, warranties,
undertakings and
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covenants of TAS 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 Neptune may assign this Agreement (a) to any
Affiliate of Neptune without such consent or (b) subsequent to the Closing, to
any transferee of the TAS Business, TAS Assets or Assumed TAS Liabilities that
executes a written assumption of the obligations of Neptune hereunder.
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.
34 Industrial Way East, Suite 6
Eatontown, New Jersey 07724
Telephone: (732) 544-8700
Telecopy: (732) 544-1473
Attention: President
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with a copy to:
Bowthorpe plc
Gatwick Road
Crawley, West Sussex
RH102RZ United Kingdom
Telephone: 44-129-352-8888
Telecopy: 44-129-354-1905
Attention: Company Secretary
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Telephone: (212) 909-6451
Telecopy: (212) 909-6836
Attention: Robert F. Quaintance, Esq.
(ii) if to Neptune:
Wireless Telecom Group, Inc.
East 64 Midland Avenue
Paramus, New Jersey 07652
Telephone: (201) 261-8797
Telecopy: (201) 261-8339
Attention: President
with a copy to:
Morrison Cohen Singer & Weinstein LLP
750 Lexington Avenue
New York, New York 10022
(212) 735-8680
(212) 735-8708
Attention: Robert H. Cohen, 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.
WIRELESS TELECOM GROUP, INC.
By: /s/ Ed Garcia
---------------------------------
Name: Edward Garcia
Title: President
TELECOM ANALYSIS SYSTEMS, INC.
By: /s/ Charles W. Simmons
---------------------------------
Name: Charles W. Simmons
Title: President