EXHIBIT 99.4
CONFIDENTIALITY, NON-DISCLOSURE AND RESTRICTIVE COVENANT
AGREEMENT
This
Confidentiality, Non-Disclosure and Restrictive Covenant
Agreement,
dated as of this 30th day of August, 2005
(this "Agreement"), by and among (i)
Hittite Microwave Corporation, a Delaware
corporation ("Hittite"), (ii) HMC
Acquisition Corporation, a Delaware
corporation and a wholly-owned subsidiary of
Hittite, ("Buyer" and, together with
Hittite, the "Buyer Parties"), (iii) Simtek
Corporation, a Colorado corporation
("Simtek") and (iv) Q-Dot, Inc., an Illinois
corporation and a wholly-owned subsidiary
of Simtek, (the "Company" and,
together with Simtek, the "Seller
Parties").
WHEREAS,
pursuant to an Asset Purchase Agreement dated as of the date
hereof by and among the Buyer Parties and
the Seller Parties, the Buyer Parties
have agreed, subject to the terms and
conditions set forth therein, to acquire
substantially all the assets of the Company
(the "Acquisition");
WHEREAS, in
partial consideration of the payment of the Purchase Price (as
defined at Section 1.7 of the Asset
Purchase Agreement) of the Acquisition and
in accordance with Sections 4.4 and 6.9 of
the Asset Purchase Agreement, Seller
Parties agree to enter into this
Agreement;
WHEREAS, the
Seller Parties acknowledge that the covenants of the Seller
Parties set forth in this Agreement are an
essential element of the Acquisition
and that, but for this Agreement, Buyer
Parties would not have entered into the
Asset Purchase Agreement; and
WHEREAS, the
Seller Parties possess substantial and intimate knowledge of
the business and affairs of the Company and
its policies, methods, personnel and
operations;
NOW, THEREFORE,
in consideration of the premises and the mutual covenants
and agreements herein contained, the
parties hereto agree as follows:
1.
Non-Competition. For a period of four years from the date of
this
Agreement (the "Restricted Period"), Seller
Parties shall not, directly or
indirectly, engage in The Company's
Business (as hereinafter defined) or,
without the prior written consent of Buyer
Parties, directly or indirectly, own
an interest in, manage, operate, join,
control, lend money or render financial
or other assistance to or participate in,
as a partner, stockholder, consultant
or otherwise, any Person that competes with
The Company's Business as it is
conducted as of the Closing Date. For
purposes of this Agreement, the term the
"The Company's Business" shall mean any
business anywhere in the world that
provides products or services of the kind
provided by the Business (as defined
in the Recitals of the Asset Purchase
Agreement) as of the Closing Date.
Notwithstanding the foregoing, for the
purposes of this Section 1, ownership of
securities having no more than one percent
(1%) of the outstanding voting power
of any competitor which are listed on any
national securities exchange,
automated securities exchange (including
Nasdaq) or traded actively in the
national over-the-counter market (in each
case including any foreign equivalent)
shall not be deemed to be in violation of
this Agreement.
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2.
Confidentiality. During the Restricted Period and at all times
thereafter, Seller Parties will keep and
hold all Confidential Information (as
hereinafter defined) in strict confidence,
and will not use or disclose in any
way any of such Confidential Information
without the prior express written
consent of the Buyer Parties. For the
purposes of this Agreement, the term
"Confidential Information" shall mean all
trade secrets and confidential or
proprietary information (and any tangible
representation thereof) owned,
possessed or used in connection with The
Company Business or by the Buyer
Parties and its Affiliates; provided,
however, that "Confidential Information"
does not include information which is or
becomes generally available to the
public other than as a result of a
disclosure by a Seller Party..
3.
Non-Solicitation. During the Restricted Period, Seller Parties
agree
that they will not in any way, directly or
indirectly, for the purpose of
conducting or engaging in any business that
competes with The Company Business,
call upon, solicit, advise or otherwise do,
or attempt to do, business with any
customers of the Company engaged prior to
the Closing Date (provided that Simtek
shall have the right to do business with
any of its current or former
customers), or interfere with or attempt to
interfere with any officers,
employees or consultants of the Buyer
Parties, induce or attempt to induce any
of them to leave the employ of the Buyer
Parties or violate the terms of their
Contracts, or any employment arrangements,
with Buyer Parties, or, without the
prior written consent of Buyer Parties,
directly or indirectly, solicit to hire,
hire or employ, whether as an employee,
director, contractor, consultant or
otherwise any officers, employees or
consultants of the Buyer Parties, unless
such Person's employment is terminated by
the Seller Parties or its Affiliate;
provided, however, that this Section 3
shal
