Exhibit 10.20
FORM OF
NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
This NON-COMPETITION AND NON-DISCLOSURE AGREEMENT (this "Agreement")
is made as of _________, 199_ by and between COMPS INFOSYSTEMS, INC., a Delaware
corporation (the "Company"), and __________________ ("Principal").
RECITALS
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WHEREAS, the Company, [AOBR, Inc., a Texas corporation ("AOBR")],
[Linda Hoffman, an individual ("Hoffman"),] [Guy Goodwin, an individual,] and
[Don Guy, an individual,] have entered into that certain Asset Purchase
Agreement, dated as of December __, 1998 (the "Purchase Agreement") pursuant to
which the Company is purchasing all of the assets related to Hoffman Valuation
Data Services (the "Purchased Assets");
WHEREAS, the going concern value of the Purchased Assets and the
business being sold by AOBR and Hoffman to the Company would be diminished
substantially if the Principal were to compete with the Company in such business
or in the Company's business within the United States (the "Territory");
WHEREAS, the Purchase Agreement requires that Principal enter into
this Agreement as a condition to the obligation of the Company to purchase the
Purchased Assets and to consummate the transactions contemplated by the Purchase
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth in
this Agreement, and in connection with the Closing under the Purchase Agreement
and the sale of the Purchased Assets in connection therewith, the parties hereto
agree as follows (capitalized terms used herein and not otherwise defined herein
shall have the meanings given such terms in the Purchase Agreement):
1. Non-Competition. As an inducement for the Company to enter into
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the Purchase Agreement and to pay the Purchase Price, Principal hereby covenants
as follows:
a. In General. Commencing on the date hereof (the "Effective Date")
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and for a period of two (2) years after the Effective Date (the "Term"),
Principal shall not, directly or indirectly, own, manage, engage in, operate or
conduct, prepare to or plan to conduct or assist any person or entity to conduct
any business, or have any interest in any business, person, firm, corporation or
other entity (as a principal, owner, agent, employee, shareholder, officer,
director, joint venturer, partner, security holder (except for the ownership of
publicly-traded securities constituting not more than five percent (5%) of the
outstanding securities of the issuer thereof), creditor (except for trade credit
extended in the ordinary course of business), consultant or in any other
capacity) that engages, directly or indirectly, in any business which is the
same as, similar to or competitive with the Company in the Business, which
Business shall include without limitation, the collection and distribution of
sales comparable information or publication of materials similar to the Report
(whether in electronic form or hard copy form), within the Territory.
Notwithstanding the foregoing, the Business will not include sales
comparable information required to produce the Austin Office Building Report
which information will be licensed to AOBR for the sole purpose of preparing the
Austin Office Building Report. The covenants set forth in this Section 1(a)
shall be construed as a series of separate covenants covering their subject
matter in each of the separate states where the Company conducts the Business,
and except for geographic coverage, each such separate covenant shall be deemed
identical in terms to the covenant set forth above in this Section 1(a). To the
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extent that any such covenant shall be judicially unenforceable in any one or
more of such state, such covenant shall not be affected with respect to each of
the other states in the Territory. Each covenant with respect to such state in
the Territory shall be construed as severable and independent.
b. No Diversion of Others. During the Term, Principal shall not,
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either for itself or for any other person, firm, corporation or other entity,
directly or indirectly, or by action in concert with others:
(i) induce or influence, or seek to induce or influence, any person
who is engaged by the Company (as an agent, employee, consultant, or in any
other capacity) or any successor thereto with the purpose of obtaining such
person as an employee or customer for a business competitive with the Business;
or
(ii) divert or take away or attempt to divert or take away, or solicit
or attempt to solicit, any existing or potential customer of the Company
(whether or not such customer is actually a customer of the Company as of the
Effective Date, including without limitation any customer solicited by Principal
or which became known by Principal prior to the Effective Date) with the purpose
of obtaining such person as an employee or customer for a business competitive
with the Business.
c. Organizing Competitive Business. Without limiting any of the
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other provisions contained in this Section 1, during the Term, Principal shall
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not plan to compete, prepare to compete or discuss the Business with any third
party, planning or preparing to compete with the Business, or conspire with
agents, employees, consultants, other representatives of the Company or any
other third party for the purpose of organizing any business activity
competitive with the Business.
2. Confidential Information and Non-Disclosure.
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a. Definition of Confidential Information. Principal hereby
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acknowledges that the Purchased Assets include the confidential and proprietary
information regarding Principal in existence prior to the date hereof and other
confidential and proprietary information of the Company (collectively,
"Confidential Information"), which Confidential Information shall include,
without limitation, all of the following materials and information (whether or
not reduced to writing and whether or not patentable or protected by copyright):
(i) any and all trade secrets concerning the business and affairs of the
Business, product specifications, data, know-how, formulae, compositions,
processes, designs, sketches, photographs, graphs, drawings, samples, inventions
and ideas, customer lists, current and anticipated customer requirements, price
lists, market studies, business plans of the Business and any other information,
however, documented, of the Business that is a trade secret within the
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meaning of any and all applicable state and federal trade secret laws; (ii) any
and all information concerning the business and affairs of the Business (which
includes historical financial statements, financial projections and budgets and
historical and projected sales), however documented; and (iii) any and all
notes, analysis, compilations, studies, summaries, and other material prepared
by or for the Business containing or based, in whole or in part, on any
information included in the foregoing. The parties hereto agree that the failure
of any Confidential Information to be marked or otherwise labeled as
confidential or proprietary information shall not affect its status as
Confidential Information. Notwithstanding the foregoing, Confidential
Information shall not include any information which is generally known to the
public or to companies in businesses similar to the Business, or which later,
through no act of Principal or any other party to the Purchase Agreement (except
the Company), becomes generally known.
b. Non-Use and Non-Disclosure. Commencing on the date hereof,
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Principal shall hold in the strictest confidence (except as previously approved
by the Company in writing), and shall not, directly or indirectly, disclose,
divulge, reveal, report, publish, transfer or otherwise communicate, or use for
its own benefit or the benefit of any other person, partnership, firm,
corporation or other entity, or use to the detriment of the Company, or misuse
in any way, any Confidential Information. Principal and the Company each hereby
stipulates that, as between them, all Confidential Information acquired by the
Company constitutes important, material and confidential and/or proprietary
information of the Company and the Business, constitutes unique and valuable
information, and affects the successful conduct of the Business and the
Company's goodwill, and that the Company shall be entitled to recover its
damages, in addition to any injunctive remedy that may be available, for any
breach of this Section 2.
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c. Trade Secrets. All trade secrets of the Business will be entitled
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to all of the protection and benefits under all applicable federal and state
trade secrets law. If any information that the Company deems to be a trade
secret is found by a court of competent jurisdiction not to be a trade secret
for purposes of this Agreement, such information will, nevertheless, be
considered Confidential Information for purposes of this Agreement. Principal
hereby waives any requirement that the Company submit proof of the economic
value of any trade secret or post a bond or other security.
d. Ownership. Principal hereby acknowledges and agrees that all
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right, title and interest in and to any Confidential Information shall be the
exclusive property of the Company, and that any Confidential Information which
the Principal acquired from AOBR or Hoffman was received in confidence and as a
fiduciary of AOBR. Without limiting the foregoing, Principal shall assign to
the Company any and all right, title or interest which Principal may have in all
Confidential Information made, developed or conceived of in whole or in part by
Principal during his/her term as company principal or affiliate of AOBR.
Principal further agrees to execute and deliver any and all instruments, and to
do all other things reasonably requested by the Company in order to vest more
fully in the Company all ownership rights in such Confidential Information. All
notebooks, documents, memoranda, reports, files, samples, books, correspondence,
lists, other written and graphic records, and the like, in any way relating to
any Confidential Information or the Business, which Principal prepared, used,
constructed, observed, processed, or controlled (collectively, "Materials")
shall be the Company's
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exclusive property, and Principal hereby agrees to deliver all Materials,
together with any and all copies thereof, promptly to the Company at the
Company's request.
3. Reasonableness of Restrictions. PRINCIPAL HAS CAREFULLY READ AND
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CONSIDERED THE PROVISIONS OF SECTIONS 1 AND 2 HEREOF AND, HAVING DONE SO, HEREBY
AGREES THAT THE RESTRICTIONS SET FORTH IN SUCH SECTIONS ARE FAIR AND REASONABLE
AND ARE REASONABLY REQUIRED FOR THE PROTECTION OF THE INTERESTS OF THE COMPANY
AND THE BUSINESS.
4. Injunctive Relief.
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a. In General. Principal acknowledges and agrees that the
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Company shall suffer irreparable harm in the event that Principal breaches any
of its obligations under Section 1 or 2 hereof, and that monetary damages shall
be inadequate to compensate the Company for any such breach. Notwithstanding the
arbitration provision of the Purchase Agreement, Principal agrees that in the
event of any breach or threatened breach by Principal of any of the provisions
of Section 1 or 2 hereof, the Company shall be entitled to a temporary
restraining order, preliminary injunction and permanent injunction in order to
prevent or restrain any such breach or threatened breach by Principal, or by any
or all of Principal's agents, representatives or other persons directly or
indirectly acting for, on behalf of or with Principal.
b. No Limitation of Remedies. Notwithstanding the provisions set
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forth in Section 4(a), above, or any other provision contained in this
Agreement, the parties hereby agree that no remedy conferred by any of the
specific provisions of this Agreement, including, without limitation, this
Section 4, is intended to be exclusive of any other remedy, and each and every
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise.
5. MISCELLANEOUS
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a. Notices. All notices, requests and other communications
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hereunder must be in writing and will be deemed to have been duly given only if
delivered personally against written receipt or by facsimile transmission with
answer back confirmation or mailed (postage prepaid by certified or registered
mail, return receipt requested) or by overnight courier to the parties at the
following addresses or facsimile numbers:
If to Principal, to:
AOBR, Inc.
8303 North Mopac, Suite B-325
Austin, TX 78759
Facsimile No: (512) 346-4873
Attention: Linda Hoffman and Guy Goodwin
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If to the Company, to:
COMPS InfoSystems, Inc.
9888 Carroll Centre Road, Suite 100
San Diego, CA 92126
Facsimile No.: (619) 684-3292
Attention: Christopher Crane
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 5(a), be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section 5(a), be deemed given upon receipt, and (iii) if
delivered by mail in the manner described above to the address as provided in
this Section 5(a), be deemed given upon receipt (in each case regardless of
whether such notice, request or other communication is received by any other
Person to whom a copy of such notice, request or other communication is to be
delivered pursuant to this Section). Any party from time to time may change its
address, facsimile number or other information for the purpose of notices to
that party by giving notice specifying such change to the other parties hereto.
b. Entire Agreement. This Agreement (and all exhibits attached
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hereto) the Purchase Agreement (and all exhibits and schedules attached thereto)
and all other documents delivered in connection herewith supersede all prior
discussions and agreements among the parties with respect to the subject matter
hereof and thereof and contains the sole and entire agreement among the parties
hereto with respect thereto.
c. Waiver. Any term or condition of this Agreement may be waived at
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any time by the party that is entitled to the benefit thereof, but no such
waiver shall be effective unless set forth in a written instrument duly executed
by or on behalf of the party waiving such term or condition. No waiver by any
party hereto of any term or condition of this Agreement, in any one or more
instances, shall be deemed to be or construed as a waiver of the same or any
other term or condition of this Agreement on any future occasion. All remedies,
either under this Agreement or by law or otherwise afforded, will be cumulative
and not alternative.
d. Amendment. This Agreement may be amended, supplemented or
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modified only by a written instrument duly executed by or on behalf of each
party hereto.
e. No Third Party Beneficiary. The terms and provisions of this
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Agreement are intended solely for the benefit of each party hereto and the
Company's successors or assigns, and it is not the intention of the parties to
confer third-party beneficiary rights upon any other Person.
f. No Assignment; Binding Effect. This Agreement shall inure to the
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benefit of any successors or assigns of the Company. Principal shall not be
entitled to assign its obligations under this Agreement.
g. Headings. The headings used in this Agreement have been inserted
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for convenience of reference only and do not define or limit the provisions
hereof.
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h. Severability. If any provision of this Agreement is held to be
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illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof, (c) the
remaining provisions of this Agreement will remain in full force and effect and
will not be affected by the illegal, invalid or unenforceable provision or by
its severance herefrom and (d) in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically as a part of this Agreement a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and mutually acceptable to
the parties herein.
i. Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of California applicable to contracts
executed and performed in such State, without giving effect to conflicts of laws
principles.
j. Attorneys Fees. In the event suit or action is brought by any
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party under this Agreement to enforce or construe any of its terms, the
prevailing party shall be entitled to recover, in addition to all other amounts
and relief, its reasonable costs and attorneys fees incurred at and in
preparation for arbitration, trial, appeal and review, such sum to be set by the
arbitrator or court before which the matter is heard.
k. Construction. No provision of this Agreement shall be construed
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in favor of or against any party on the ground that such party or its counsel
drafted the provision. Any remedies provided for herein are not exclusive of
any other lawful remedies which may be available to either party. This
Agreement shall at all times be construed so as to carry out the purposes stated
herein.
l. Counterparts. This Agreement may be executed in any number of
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counterparts and by facsimile, each of which will be deemed an original, but all
of which together will constitute one and the same instrument.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement as of the date first above written.
COMPS INFOSYSTEMS, INC.,
a Delaware corporation
By:
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Name:
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Title:
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[Principal]
[SIGNATURE PAGE TO THE FORM OF
NON-COMPETITION AND NON-DISCLOSURE AGREEMENT]
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Schedule 1 to Exhibit 10.20
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Principals
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AOBR, Inc., a Texas corporation
Linda Hoffman, an individual
Guy Goodwin, an individual
Don Guy, an individual
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