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Exhibit
10.2
NONCOMPETITION AGREEMENT
dated as of August 7, 2007 between COOPERSURGICAL, INC., a
Delaware corporation (“ Cooper ”) and ATRICURE,
INC., a Delaware corporation (“ AtriCure
”).
Reference is made to the Bill
of Sale and Assignment Agreement, dated as of the date of this
Agreement (the “ Bill of Sale ”), between Cooper
and AtriCure. Pursuant to the Bill of Sale, AtriCure is acquiring
the Frigitronics ® CCS-200 product line for use in
cardiovascular cryosurgery (the “ Product Line
”). Cooper is retaining several related, but distinct,
product lines. A portion of the purchase price under the Bill of
Sale is evidenced by the promissory note of AtriCure in the amount
of $417,292 payable to Cooper (the “Note”). This
Agreement is being entered into pursuant to the Bill of
Sale.
In consideration of AtriCure
purchasing the Purchased Assets under the Bill of Sale and in order
to prevent Cooper from being economically harmed by a loss of the
goodwill associated with its ophthalmic cryosurgery products and
gynecological cryosurgery products (“ Cooper Products
”), and to prevent AtriCure from being economically harmed by
a loss of goodwill associated with the Product Line, the parties
hereto have agreed not to compete with each other or their
respective Affiliates under the conditions set forth in this
Agreement.
ACCORDINGLY, in consideration
of the good and valuable consideration which the parties hereto
acknowledge, the parties hereto hereby agree as follows:
Section 1. Certain
Defined Terms .
(a) Capitalized terms used
but not otherwise defined herein have the meanings set forth in the
Bill of Sale.
(b) The term “
Business Day ” means any day that is not a Saturday,
Sunday or a day on which banking institutions in New York, New York
are not required to be open.
(c) The term “
Business Group ” means, in the case of Cooper, Cooper
and its Affiliates, and in the case of AtriCure, AtriCure and its
Affiliates.
Section 2.
Non-competition and Non-solicitation .
(a) Except as otherwise
provided in the Bill of Sale, during the Cooper Non-Compete Period,
Cooper shall not directly or indirectly through another Person,
including an Affiliate or by way of an ownership interest in
another Person exceeding 10% of all ownership interests in such
Person, or as a partner or joint venturer, sell, distribute,
manufacture, advertise or promote (or assist any Person engaging in
any of the foregoing) cryosurgical products intended for use in
cardiovascular cryosurgery within any Restricted Territory (as
defined below)
(b) During the AtriCure
Non-Compete Period, AtriCure shall not directly or indirectly
through another Person, including an Affiliate or by way of an
ownership interest in
another Person exceeding 10% of all
ownership interests in such Person, or as a partner or joint
venturer, sell, distribute, manufacture, advertise or promote (or
assist any Person including any of the foregoing) cryosurgical
products intended for ophthalmic or gynecological cryosurgery
within any Restricted Territory (as defined below).
(c) As used in this
Agreement, the term “ Restricted Territory ”
means the entire world.
(d) As used in this
Agreement, (i) the term “ AtriCure Non-Compete
Period ” means the period beginning on the date of this
Agreement and ending on the eighth anniversary of the date of this
Agreement and (ii) the term “ Cooper Non-Compete
Period ” means the period beginning on the date of this
Agreement and ending on the earlier of (A) the date that
AtriCure fails to pay Cooper when due amounts due to be paid under
the Note and (B) the eighth anniversary of the date of this
Agreement.
(e) During the period
beginning on the date of this Agreement and ending on the second
anniversary of the date of this Agreement, no party hereto shall
directly, or indirectly through another Person, (i) solicit
any employee of the other party hereto or its Business Group to
leave the employ of such party or any of its Business Group, or in
any way interfere with the relationship between the party or any of
its Business Group, on the one hand, and any employee thereof, on
the other hand; provided , however , that the general
solicitation of third parties through the use of means generally
available to the public, including the placement of advertisements
in the newspaper, shall not be deemed to violate this clause
(i) or (ii) hire any individual who was an employee of
such party until two (2) months after such individual’s
employment relationship with that party or any of its Business
Group has terminated.
(f) During the period
beginning on the date of this Agreement and ending on the second
anniversary of the date of this Agreement, no party hereto shall,
directly, or indirectly through another Person, induce or attempt
to induce any customer, supplier, consultant, licensee or other
business relation of the other party or any of its Business Group
to cease doing business with the other party or any of its Business
Group, or in any way interfere with the relationship between any
such customer, supplier, consultant, licensee or business relation,
on the one hand, and the other party or any of its Business Group,
on the other hand.
Section 3.
Representations and Warranties .
(a) Cooper hereby represents
and warrants to AtriCure that (i) Cooper has all requisite
corporate power and authority to enter into this Agreement and to
perform its obligations hereunder, (ii) this Agreement has
been duly and validly authorized by all necessary corporate action
on the part of Cooper, and (iii) upon the execution and
delivery of this Agreement by Cooper and AtriCure, this Agreement
will be a valid and binding obligation of Cooper.
(b) AtriCure hereby
represents and warrants to Cooper that (i) AtriCure has all
requisite corporate power and authority to enter into this
Agreement and to perform its obligations hereunder, (ii) this
Agreement has been duly and validly authorized by all necessary
corporate action on the part of AtriCure, and (iii) upon the
execution and delivery of this Agreement by Cooper and AtriCure,
this Agreement will be a valid and binding obligation of
AtriCure.
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Section 4.
Enforcement .
(a) Because the relationship
between Cooper and AtriCure is unique, money damages, although
recoverable, would not be a fully adequate remedy for any breach of
this Agreement. Therefore, in the
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