EXHIBIT 10.29
NONCOMPETITION AGREEMENT
This Agreement ("Agreement") dated as of December 31, 1995 between
IWN, L.P., a limited partnership formed under the laws of the State of Delaware,
with its executive offices located at 5966 La Place Court, Carlsbad, California
92008 ("Partnership"), NTN Communications, Inc., a Delaware corporation, with
its executive offices located at 5966 La Place Court, Carlsbad, California 92008
("NTN"), IWN, Inc., a Delaware corporation ("IWN"), and Symphony Management
Associates, Inc., a Delaware corporation, with its executive offices located at
900 Bestgate Road, Suite 400, Annapolis, Maryland 21401 ("Symphony").
BACKGROUND
Effective as of the date hereof, the Partnership has acquired by
license and otherwise, certain of the business assets of NTN and IWN which
involve two-way interactive, computerized broadcast systems ("Systems") and
certain other related technology ("Technology") used for Gaming Applications (as
that term is described herein), all as more fully described in a certain
Investment Agreement dated as of December 31, 1995 ("Investment Agreement"),
among NTN, IWN and Symphony.
In connection with the Investment Agreement, NTN and IWN shall assign,
transfer and sell certain of its assets related to the Partnership Business (as
that term is defined in the Investment Agreement) and each of NTN, IWN, Symphony
and Symphony IWN Investment LLC shall execute and deliver noncompetition
agreements substantially in the form of this Agreement.
In order to induce Symphony and LLC to consummate the transactions
contemplated by the Investment Agreement, NTN and IWN are each willing to make
the covenants and agreements herein set forth.
In consideration of the mutual covenants herein contained and of the
mutual benefits, and intending to be legally bound hereby, NTN and IWN agree as
follows:
1. NTN and IWN hereby acknowledge and agree that all proprietary and
confidential documents, records, techniques, formulas, processes and other
business secrets and confidential information which have come into its
respective possession related to the Systems and the Technology used in
connection with Gaming Applications (collectively, "Interactive Technologies")
from time-to-time which have been used in connection with the Partnership
Business prior to the date hereof or could be used in connection with the
Partnership Business in the future shall be deemed to be confidential and
proprietary to the Partnership, whether written or oral, and, if oral, if it is
identified as "confidential" prior to disclosure and which, by virtue of the
nature of the circumstances surrounding such disclosure should be
considered, in good faith, to be treated as proprietary and confidential.
2. NTN and IWN shall each keep confidential and not divulge to any
other person any of the business secrets and confidential information of the
Partnership which, without limitation, relates to such matters as the
Partnership Business' finances and operations, the Partnership's materials,
processes, equipment, techniques, plans, formulae, products, methods and
know-how used or related to the Partnership's Business (the Interactive
Technologies as they relate to Gaming Applications), the names of the
Partnership's customers and their requirements and the names of the
Partnership's suppliers following the date hereof.
All of the Partnership's business secrets and confidential
information shall, subject to any licenses and sublicenses between the parties,
shall be the sole and exclusive property of the Partnership.
3. For a period of three (3) years from the date hereof, neither
NTN, IWN, nor any of its respective directors, officers, shareholders,
employees, or affiliates shall compete directly or indirectly, or participate
directly or indirectly, as agent, representative or otherwise, or as a
stockholder, joint venturer, partner or otherwise, or have any direct or
indirect material financial interest, including without limitation the interest
of a creditor, in any form in any business competing directly or indirectly with
the Partnership Business as presently conducted or with any business of the
Partnership involving the research, development, marketing, manufacture,
distribution, sale or license of Systems and Interactive Technologies anywhere
in the world for Gaming Applications with the exception of IWN's ownership
interest in the Partnership. Ownership by NTN or IWN of stock listed on a
national securities exchange of any corporation conducting such competing
business shall not be deemed a violation of this Section 3, provided NTN or IWN
and its respective associates (as such term is defined in Regulation 14A of the
Securities Exchange Act of 1934, as in effect on the date hereof) collectively
do not own more than an aggregate of 5% of the stock of such entity. For
purposes of this Agreement, "Gaming Applications" shall mean any interaction
where any sum of money is risked on an uncertain outcome, such as casino gaming,
pari-mutuel wagering, lottery, sports betting, bingo, or other forms of gaming
or wagering.
4. For a period of three (3) years after the date hereof, neither
NTN nor IWN shall (i) induce or attempt to induce, directly or indirectly, any
customer of the Partnership to cease doing business in whole or in part with the
Partnership or solicit the business of any such customer for any products or
services which compete with any of the products or own account or
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for any other person (including without limitation any firm, corporation,
association or business employee of the Partnership) to leave his employment
with the Partnership or induce or attempt to induce any such employee to breach
his employment agreement with the Partnership.
5. In the event of a breach or any threatened breach by NTN or IWN
of the provisions of this Agreement, each of Symphony, LLC and the Partnership
shall be entitled to an injunction restraining NTN and IWN, as the case may be,
from disclosing, in whole or in part, the business secrets and confidential
information described herein, and from rendering services to any other person to
whom such business secrets and confidential information have been disclosed or
are threatened to be disclosed and from participation in violation of this
Agreement in any business which competes directly or indirectly with any of the
business of the Partnership described herein. Nothing contained in this
Agreement shall be construed as prohibiting Symphony, LLC or the Partnership
from pursuing any other remedies available to it for any such breach or
threatened breach, including without limitation the recovery of damages from
NTN, IWN and any third parties. The covenants contained in this Agreement shall
run in favor of Symphony, the Partnership and LLC and their respective
successors and assigns and shall survive the expiration or earlier termination
of this Agreement.
In the event of any breach by NTN or IWN of the provisions of
Section 3 and 4 of this Agreement, the time periods set forth in such paragraphs
shall be extended by the length(s) of time during which such breach was
continuing.
6. This Agreement shall not be assigned by the parties hereto except
that each of Symphony, LLC and the Partnership shall have the right to assign
its rights hereunder or any successor in interest of Symphony, LLC or the
Partnership, as the case may be, whether by merger, consolidation, purchase of
assets or otherwise.
7. All notices, requests, demands, and other communications
hereunder must be in writing and shall be deemed to have been given if delivered
by hand, telecopied or mailed by first class, registered mail, return receipt
requested, postage fees prepaid, or by overnight courier of national reputation
addressed as follows:
(a) If to NTN; NTN Communications, Inc.
5966 La Place Court
Carlsbad, California 92008
Attention: Chief Executive Officer
Telecopier No.: 619-929-5289
(b) If to IWN: IWN, Inc.
5966 La Place Court
Carlsbad, California 92008
Attention: Chief Executive Officer
Telecopier No.: 619-930-1174
with a copy to: Troy & Gould, Professional Corporation
1801 Century Park East, 16th Floor
Los Angeles, California 90067
Attention: William D. Gould, Esquire
Telecopier No:. 310-201-4746
(c) If to Symphony or LLC:
Symphony Management Associates, Inc.
900 Bestgate Road, Suite 400
Annapolis, Maryland 21401
Attn: Chief Financial Officer
Telecopier No:. 410-573-5205
with a copy to: Stradley, Ronon, Stevens & Young, LLP
2600 One Commerce Square
Philadelphia, PA 19103-7098
Attention: William R. Sasso, Esquire
Telecopier No:. 215-564-8120
(d) If to the Partnership:
c/o IWN, Inc.
5966 La Place Court
Carlsbad, California 92008
Attention: Chief Executive Officer
Telecopier No.: 619-930-1174
and
c/o Symphony Management Associates, Inc.
900 Bestgate Road, Suite 400
Annapolis, Maryland 21401
Attention: Chief Financial Officer
Telecopier No.: 410-573-5205
Addresses and telecopier numbers may be changed by notice in
writing signed by the addressees.
8. This Agreement embodies the entire agreement and understanding
related to the subject matter hereof between the parties hereto and supersedes
all prior agreements and understandings, oral or written, relating to the
subject matter hereof, and no change, alteration or modification hereof may be
made except in writing signed by the parties hereto. The headings in this
Agreement are for convenience of reference only
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and shall not be considered as part of this Agreement nor limit or otherwise
affect the meaning hereof. This Agreement shall in all respects be governed and
construed in accordance with the laws of the State of Delaware.
9. If any one or more of the provisions of this Agreement shall be
held to be invalid, illegal or unenforceable, it shall be enforced to the extent
permitted by law and the validity, legality or enforceability of the remaining
provisions of this Agreement shall not be affected thereby. To the extent
permitted by applicable law, each party waives any provision of law which
renders any portion of this Agreement invalid, illegal or unenforceable in any
request.
10. This Agreement may be executed in any number of counterparts,
each of which when executed and delivered shall be deemed to be an original and
all of which when taken together shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first above written.
NTN COMMUNICATIONS, INC
By:_______________________________
Its:
IWN, INC.
By:________________________________
Its: Chairman
SYMPHONY MANAGEMENT ASSOCIATES, INC.
By:________________________________
Its: Treasurer and Secretary
IWN, L.P.
By:________________________________
Its:
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