NON-COMPETITION AND
NON-SOLICITATION AGREEMENT
THIS
NON-COMPETITION AND NON-SOLICITATION AGREEMENT
(“Agreement”), by and between Brooktrout, Inc., a
Massachusetts corporation (the “Company”), and Eric R.
Giler (the “Executive”) is made as of August 18,
2005 (the “Effective Date”).
WHEREAS, the
Company and EAS Group, Inc. (the “Buyer”) are
concurrently entering into an Agreement and Plan of Merger of even
date herewith (the “Merger Agreement”), pursuant to
which the Company will merge with a wholly owned subsidiary of the
Buyer (the “Merger”), with the Company surviving the
Merger as a wholly-owned subsidiary of the Buyer; and
WHEREAS, the
Executive is an employee of the Company and the owner of shares of
common stock, or options to purchase common stock, of the Company;
and
WHEREAS, the
Company and the Executive entered into that certain Executive
Retention Agreement dated as of March 16, 2005 (the
“Retention Agreement”), whereby the Company agreed,
that in the event the Executive is terminated other than by the
surviving corporation for Cause or by the Executive for Good
Reason, each as defined therein) within twelve (12) months of
a Change in Control (as defined therein) of the Company, the
Executive would be entitled to receive payments reflecting
severance compensation to the Executive; and
WHEREAS, the
Company is engaged primarily in the development of proprietary
software and hardware platforms designed for applications, systems
and services that allow voice, fax and data to be distributed over
both Internet-protocol packet-based networks or traditional
circuit-switched telephone networks (the “Business”);
and
WHEREAS, as a
result of the Executive’s employment with the Company, the
Executive has access to confidential information of the Company,
including, but not limited to customer and supplier lists, and
Executive has the ability to influence the goodwill of the Company
with customers and suppliers; and
WHEREAS, the
Company deems it of significant importance to its Business to
prohibit the Executive from (i) disclosing the Company’s
confidential information, (ii) from using the Company’s
confidential information to engage in a business in competition
with the Business after the Executive’s termination of
employment with the Company, or (iii) from interfering with
the Company’s employees after the Executive’s
termination of employment with the Company in order to accomplish
such purpose, and the Company believes it to be in its best
interest to enter into an agreement with the Executive restricting
such actions; and
WHEREAS,
the Executive is willing to refrain from engaging in certain
activities which would be to the detriment of the Company in
consideration of payments to be received by the Executive pursuant
to this Agreement.
Accordingly,
the parties hereto agree as follows:
1.
Confidential Information . Executive acknowledges that the
information, observations and data obtained by him during the
course of his employment by the Company concerning the business and
affairs of the Company, including but not limited to marketing
plans, technical information, and nonpublic financial information
(“Company Information “) are confidential and are the
property of the Company. Executive hereby agrees that he shall not
disclose to any unauthorized person or use for his own account or
for the account of any third party any Company Information without
the Company’s written consent, unless and then only to the
extent the Company Information becomes generally known to and
available for use by the public other than as a result of
Executive’s acts or failure to act. Executive shall use his
best efforts to prevent the unauthorized misuse, espionage, loss or
theft of the Company Information. Executive further agrees to
deliver to the Company at the termination of his employment, or at
any other time the Company may request in writing, all memoranda,
notes, plans, records, reports and other documents (and copies
thereof) relating to the Business of the Company that Executive may
then possess or have under his control.
2. Non
Competition . If Executive is entitled to payments pursuant to
Section 4 of the Retention Agreement then, in addition to
those benefits, the Company shall pay to Executive on a quarterly
basis in arrears during the Restricted Period, an aggregate of
$400,000 (the “Fee”), and in consideration of these
additional payments and the benefits provided under Section 4
of the Retention Agreement, Executive agrees that during the
Restricted Period, Executive shall not, directly or indirectly, for
himself, or for any entity:
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(a)
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engage in or Participate In any
business that directly competes with, or develops or offers
products or services directly competitive with the products or
services of the Company from any state or country in which the
Company has business or customers, or has solicited customers;
nor
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(b)
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engage in or Participate In any
business that directly competes with, or develops or offers
products or services directly competitive with the products or
services of the Business, from any other location throughout the
world; nor
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(c)
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call upon, solicit, serve, or accept
business, from any customer or prospective customer (wherever
located) of the Company for the purpose of selling products or
services directly competitive with the products or services of the
Company; nor
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(d)
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interfere with any business
relationship of the Company, with any of their customers or
prospective customers or induce any such customers or if Executive
shall become entitled to benefits under Section 4 of the
Retention Agreement, prospective customers to discontinue or reduce
their relationship with the Company.
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To the extent that
Executive is employed by or consults for an entity which is a
subsidiary, division or other affiliate of a larger business
enterprise, the determination as to
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