{"id":40157,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/noncompetition-agreement-3dfx-interactive-inc-and-philip.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"noncompetition-agreement-3dfx-interactive-inc-and-philip","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/noncompetition-agreement-3dfx-interactive-inc-and-philip.html","title":{"rendered":"Noncompetition Agreement &#8211; 3dfx Interactive Inc. and Philip Carmack"},"content":{"rendered":"<pre>\n                            NONCOMPETITION AGREEMENT\n\n    THIS NONCOMPETITION AGREEMENT (the \"Agreement\") made and entered into as of\nthe 20th day of July, 2000, by and among 3dfx Interactive, Inc., a California\ncorporation (\"Buyer\"), and Philip Carmack (\"Promisor\").\n\n                                   WITNESSETH:\n\n    WHEREAS, pursuant to the Agreement and Plan of Reorganization dated as of\nMarch 27, 2000 (the \"Purchase Agreement\"), by and among Buyer, Galapagos\nAcquisition Corp., a Delaware corporation and the wholly-owned subsidiary of\nBuyer (\"Galapagos\"), and GigaPixel Corporation, a Delaware corporation (the\n\"Company\"), Galapagos shall merge with and into the Company and the Company\nshall be the surviving corporation in the Merger (as defined in the Purchase\nAgreement);\n\n    WHEREAS, the Purchase Agreement provides, as a condition to the closing\nthereunder, that Promisor shall execute and deliver this Agreement;\n\n    WHEREAS, the agreements of Promisor hereunder are an important aspect of the\ntransactions under the Purchase Agreement, and Buyer would not consummate such\ntransactions absent the execution and delivery by Promisor of this Agreement;\n\n    WHEREAS, the Company has been and is presently engaged in the development,\nimplementation, license, sale and\/or other distribution of high-performance 3D\ngraphics hardware and software (the \"Business\") in and around the territories\nspecified in Schedule I attached hereto (collectively, the \"Territory\");\n\n    WHEREAS, Promisor and Promisor's affiliates have substantial financial\nresources, experience in the Business and the ability to operate a business or\nbusinesses that could compete with the Company in the Business or in related\nbusinesses following the Closing; and\n\n    WHEREAS, the agreements of Promisor hereunder are reasonable and necessary,\nboth in scope and duration, to protect the business and goodwill of the Company\nthat will be acquired pursuant to the Purchase Agreement, and the Company would\nsuffer damages, including the loss of profits, if Promisor or any of Promisor's\naffiliates engaged, directly or indirectly, in a competing business with the\nCompany or Buyer.\n\n    NOW, THEREFORE for and in consideration of the premises and of the mutual\nrepresentations, warranties, covenants and agreements contained herein, and of\nother good and valuable consideration, the receipt and sufficiency of which are\nhereby acknowledged, and upon the terms and subject to the conditions\nhereinafter set forth, the parties do hereby agree as follows:\n\n    1. Consideration; Disclosure of Information. For and in consideration of the\nsum of $50,000, the receipt and sufficiency of which are acknowledged by\nPromisor, Promisor agrees that for a period of three (3) years from the date\nhereof, without the prior written consent of Buyer, Promisor shall not, directly\nor indirectly, through any form of ownership, in any individual or\nrepresentative or affiliated capacity whatsoever, except as may be required by\nlaw, reveal, divulge, disclose or communicate to any person, firm, association,\ncorporation or other entity in any manner whatsoever information of any kind,\nnature or description concerning: (i) the names of any prior or present\nsuppliers or customers of the Company or Buyer, (ii) the prices for which the\nCompany or Buyer obtains or has obtained products or services, (iii) the names\nof the personnel of the Company or Buyer, (iv) the manner of operation of the\nCompany or Buyer, (v) the plans, trade secrets, or other confidential or\nproprietary data of any kind, nature or description, whether tangible or\nintangible, of the Company or Buyer, or (vi) any other financial, statistical or\nother information that the Company or Buyer designates or treats as confidential\nor proprietary. The agreements set forth herein shall not apply to any\ninformation that at the time of disclosure or thereafter is generally available\nto and known by the public (other than as a result of a disclosure directly or\nindirectly by Promisor in violation of this Agreement), the disclosure of which\nis required by law, regulation, order, decree or process or is otherwise\napproved by the Company or Buyer. Without regard to whether any or all of the\nforegoing matters would be deemed confidential, material or important, the\nparties hereto stipulate that as between them, the same are important, material\nand confidential and gravely affect the effective and successful conduct of the\nBusiness and its goodwill.\n\n\n   2\n\n\n    2. Noncompetition. Promisor agrees that for a period of three (3) years from\nthe date hereof, Promisor shall not:\n\n        (i) Call upon, solicit, divert, take away or attempt to call upon,\n    solicit, divert or take away any past, existing or potential customers,\n    suppliers, businesses, or accounts of (a) the Company or (b) the Business in\n    connection with any business substantially similar to the Business in the\n    Territory;\n\n        (ii) Hire, attempt to hire, contact or solicit with respect to hiring\n    for Promisor or on behalf of any other person any present or future employee\n    of the Company or Buyer in the Business;\n\n        (iii) Engage in, or give any advice to any person, firm, partnership,\n    association, venture, corporation or other entity engaged in, a business\n    substantially similar to the Business in the Territory;\n\n        (iv) Lend credit, money or reputation for the purpose of establishing\n    or operating a business substantially similar to the Business in the\n    Territory;\n\n        (v) Do any act that Promisor knew or reasonably should have known might\n    injure the Company or Buyer; and\n\n        (vi) Without limiting the generality of the foregoing provisions,\n    conduct a business substantially similar to the Business, whether or not\n    under the name \"GigaPixel\" or any other trade names, trademarks or service\n    marks used by the Company or Buyer in the Territory.\n\n    The covenants in subsections (i) through (vi) are intended to restrict\nPromisor from competing in any manner with the Company or the Business in the\nactivities that have heretofore been carried on by the Company. The obligations\nset forth in subsections (i) through (vi) above shall apply to actions by\nPromisor, through any form of ownership, and whether as principal, officer,\ndirector, agent, employee, employer, consultant, shareholder or holder of any\nequity security (beneficially or as trustee of any trust), lender, partner,\njoint venturer or in any other individual or representative or affiliated\ncapacity whatsoever. However, none of the foregoing shall prevent Promisor from\nbeing the holder of up to 5.0% in the aggregate of any class of securities of\nany corporation engaged in, directly or indirectly, the activities described in\nsubsections (i) through (vi) above, provided that such securities are listed on\na national securities exchange or reported on Nasdaq.\n\n    3. Enforcement of Covenants.\n\n    3.1 Promisor acknowledges that a violation or attempted violation of any of\nthe covenants and agreements in Sections 1 and 2 above will cause such damage to\nBuyer and the Company as will be irreparable, the exact amount of which would be\ndifficult to ascertain and for which there will be no adequate remedy at law,\nand accordingly, Promisor agrees that Buyer and the Company shall be entitled as\na matter of right to an injunction issued by any court of competent\njurisdiction, restraining such violation or attempted violation of such\ncovenants and agreements by Promisor, or the affiliates, partners or agents of\nsuch Promisor, as well as recover from Promisor any and all costs and expenses\nsustained or incurred by Buyer and the Company in obtaining such an injunction,\nincluding, without limitation, reasonable attorneys' fees. Promisor agrees that\nno bond or other security shall be required in connection with such injunction.\nPromisor further agrees that the periods of restriction set forth in Sections 1\nand 2 above shall be tolled during any period of violation thereof by Promisor.\nAny exercise by Buyer or the Company of their respective rights pursuant to this\nSection 3 shall be cumulative and in addition to any other remedies to which\nBuyer or the Company may be entitled. Each party represents and warrants that it\nhas been represented by counsel in the negotiation and execution of this\nAgreement, including without limitation the provisions set forth above in this\nSection 3(a) concerning the recovery of attorney's fees.\n\n    3.2 Promisor understands and acknowledges that each of Buyer and the Company\nshall have the right, in its sole discretion, to reduce the scope of any\ncovenants set forth in Sections 1 and 2, or any portion thereof, without\nPromisor's consent, effective immediately upon receipt by Promisor of written\nnotice thereof; and Promisor agrees that Promisor shall comply forthwith with\nany covenant as so modified, which shall be fully enforceable as so revised in\naccordance with the terms of this Agreement.\n\n    4. Intellectual Property. Promisor recognizes and agrees that, on and after\nthe date hereof, Promisor will not have the right to use for Promisor's own\naccount any of the service marks, trademarks, trade names, licenses, procedures,\nprocesses, labels, trade secrets or customer lists owned by or licensed to the\nCompany.\n\n    5. Validity. To the extent permitted by applicable law, if it should ever be\nheld that any provision contained herein does not contain reasonable limitations\nas to time, geographical area or scope of activity to be restrained, then the\ncourt so holding shall at the request\n\n\n   3\n\n\nof Buyer or the Company reform such provisions to the extent necessary to cause\nthem to contain reasonable limitations as to time, geographical area and scope\nof activity to be restrained and to give the maximum permissible effect to the\nintentions of the parties as set forth herein; and the court shall enforce such\nprovisions as so reformed. If, notwithstanding the foregoing, any provision\nhereof is held to be illegal, invalid or unenforceable under present or future\nlaws effective during the term hereof, such provision shall be fully severable;\nthis Agreement shall be construed and enforced as if such illegal, invalid or\nunenforceable provision had never comprised a part hereof; and the remaining\nprovisions hereof shall remain in full force and effect and shall not be\naffected by the illegal, invalid or enforceable provision or by its severance\nhere from. Furthermore, in lieu of such illegal, invalid or unenforceable\nprovision there shall be added automatically by Buyer or the Company as a part\nhereof a provision as similar in terms to such illegal, invalid or unenforceable\nprovision as may be possible and be legal, valid and enforceable, and the\nparties hereby agree to such provision.\n\n    6. Notice. Any notice, request, instruction, document or other communication\nto be given hereunder by any party hereto to any other party hereto shall be in\nwriting and validly given if (i) delivered personally, (ii) sent by telecopy\nwith electronic confirmation of receipt, (iii) delivered by overnight express,\nor (iv) sent by registered or certified mail, postage prepaid, as follows:\n\n       If to Buyer:\n\n       3dfx Interactive, Inc.\n       4435 Fortran Drive\n       San Jose, CA 95134\n       Attn: President\n       cc: Legal Department\n       Facsimile Number (408) 262-5551\n\n       If to Promisor:\n\n       Philip Carmack\n       c\/o 3dfx Interactive, Inc.\n       4435 Fortran Drive\n       San Jose, CA 95134\n       Facsimile Number (408) 262-5551\n       and marked \"Personal and Confidential\"\n\n       With a copy to:\n\n\n       -----------------------------------------\n\n       -----------------------------------------\n\n       -----------------------------------------\n\nor at such other address for a party as shall be specified by like notice. Any\nnotice that is delivered personally, or sent by telecopy or overnight express in\nthe manner provided herein shall be deemed to have been duly given to the party\nto whom it is directed upon receipt by such party. Any notice that is addressed\nand mailed in the manner herein provided shall be conclusively presumed to have\nbeen given to the party to whom it is addressed at the close of business, local\ntime of the recipient, on the fourth day after the day it is so placed in the\nmail.\n\n    7. Entire Agreement. This Agreement contains the entire agreement of the\nparties hereto with respect to the matters covered hereby, and supersedes all\nprior agreements and understandings, both written and oral, between the parties\nwith respect to the subject matter hereof.\n\n    8. Modification and Waiver. No modification or amendment of any of the\nterms, conditions or provisions in this Agreement may be made otherwise than by\nwritten agreement signed by the parties hereto, except as provided in Sections\n3.2 and 5 hereof. The waiver by any party to this Agreement of a breach of any\nprovision of this Agreement shall not operate or be construed as a waiver of any\nsubsequent breach by any party nor shall such waiver constitute a continuing\nwaiver.\n\n\n   4\n\n\n    9. Successors and Assigns. The terms and conditions of this Agreement shall\ninure to the benefit of and be binding upon the parties hereto and their\nrespective successors and permitted assigns. Neither this Agreement nor any\nrights, interests or obligations hereunder may be assigned by Promisor without\nthe prior written consent of the other parties hereto, and any purported\nassignment in violation of this Section 9 shall be null and void.\n\n    10. Headings. The headings of the sections of this Agreement are inserted\nfor convenience of reference only and shall not be deemed to constitute part of\nthis Agreement or to affect the construction hereof.\n\n    11. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED, ENFORCED AND GOVERNED\nBY THE INTERNAL LAW OF THE STATE OF CALIFORNIA.\n\n    12. Counterparts. This Agreement may be executed in any number of\ncounterparts, each of which shall be an original, and such counterparts together\nshall constitute one and the same instrument.\n\n    IN WITNESS WHEREOF, the parties have duly caused this Agreement to be\nexecuted as of the date first above written.\n\n\n                                    BUYER:\n\n                                    3DFX INTERACTIVE, INC.\n\n                                    By:   \/s\/ DAVID ZACARIAS\n                                       -----------------------------------------\n                                    Printed Name: David Zacarias\n                                                 -------------------------------\n                                    Title: Vice President, Administration and\n                                           Chief Financial Officer\n                                          --------------------------------------\n\n                                    PROMISOR:\n\n                                        \/s\/ PHILIP CARMACK\n                                    --------------------------------------------\n\n                                    --------------------------------------------\n\n   5\n\n\n\n\n                                    SCHEDULE I\n\n                                    TERRITORY\n\nUnited States of America\nEuropean Union\nAsia\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6538,7638],"corporate_contracts_industries":[9508,9513],"corporate_contracts_types":[9539,9549],"class_list":["post-40157","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-3dfx-interactive-inc","corporate_contracts_companies-gigapixel-corp","corporate_contracts_industries-technology__hardware","corporate_contracts_industries-technology__software","corporate_contracts_types-compensation","corporate_contracts_types-compensation__noncompetition"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40157","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40157"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40157"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40157"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40157"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}