This excerpt taken from the VRSN 10-Q filed Jul 16, 2007.
11.1 Competition Matters.
(a) The parties hereto agree that the primary intent of VeriSigns B-to-B Business offering for mobile content is to provide third parties that are not Affiliates of VeriSign with technology and services to enable mobile media enablement and distribution. Although not the primary intent of VeriSigns B-to-B Business mobile content services, the parties hereto agree that VeriSign may also engage in provisioning mobile services for third parties that include advising and supporting third parties with respect to their retail operations (including supporting and servicing any marketing and development initiatives of such third parties) so long as such retail operations (x) are not predominately controlled by VeriSign or its Affiliates (other than entities affiliated with directors and officers of VeriSign which are not also otherwise Affiliates of VeriSign but for the fact that the director or officer of VeriSign is affiliated with such entity) and (y) in no event use any brand owned or controlled by VeriSign or its Affiliates (other than entities affiliated with directors and officers of VeriSign which are not also otherwise Affiliates of VeriSign but for the fact that the director or officer of VeriSign is affiliated with such entity) except for ingredient branding purposes (i.e. Powered by VeriSign) and branding for other VeriSign services not related to providing mobile content (i.e., VeriSigns VeriSign Secured seal) (any activities permitted by this sentence being herein referred to as Secondary B-to-B Business Services). Notwithstanding the foregoing, for so long as VeriSign Member beneficially owns any Company Interest and for a period of two years thereafter (the Prohibited Period), VeriSign shall not, and shall cause its Affiliates (other than entities affiliated with directors and officers of VeriSign which are not also Affiliates of VeriSign) not to, for their own benefit or for the benefit of any other Person, in any manner, directly or indirectly, operate or engage in (alone or with others), be financially interested in, or have an equity or other ownership interest in any Person engaged in, or form a joint venture with any Person to conduct, any direct-to-consumer mobile business that is substantially similar to the businesses conducted by Jamba! or Mobizzo prior to the date of the Formation Agreement (a Competing Business); provided, however, that the covenant contained in this Section 11.1(a) shall not prohibit VeriSign from (i) engaging in or conducting any B-to-B Business or providing any Secondary B-to-B Business Services; (ii) engaging in activities with any international mobile carrier to the extent any such activities would otherwise qualify as B-to-B Business; or (iii) owning as an investment less than one percent (1%) of the outstanding capital stock of a Competing Business whose stock is traded on a national securities exchange or market, or over-the-counter.
(b) The parties hereto agree that in the event any disputes arise between the Company and VeriSign as to the appropriateness of (i) the Company providing Direct-to-Consumer services for Persons other than News and its Affiliates that appear to conflict with or compete with the B-to-B Business of VeriSign in the marketplace or (ii) VeriSign providing infrastructure services that include functions normally associated with retail operations of a Direct-to-Consumer Business, then the CEO and the chief executive officer of VeriSign will attempt to resolve such dispute amicably using the primary intent of the respective businesses as set forth herein as a guideline. Should such Persons not be able to resolve a particular dispute, the dispute shall be discussed at the next scheduled meeting of the Board to determine if new guidelines or rules of engagement are necessary between the Company and the B-to-B Business group of VeriSign. The parties hereto expect such disputes to be infrequent and will use their respective commercially reasonable efforts to resolve them in a timely and professional manner.
(c) If a judicial or arbitral determination is made that any provision of Section 11.1(a) constitutes an unreasonable or otherwise unenforceable restriction against VeriSign or any of its Affiliates (other than directors and officers of VeriSign), then the provisions of Section 11.1(a) shall be rendered void only to the extent such judicial or arbitral determination finds such provisions to be unenforceable. In that regard, any judicial or arbitral authority construing Section 11.1(a) shall be empowered to sever any prohibited business activity, time period or geographical area from the coverage of Section 11.1(a) and to apply the remaining provisions of Section 11.1(a) to the remaining business activities, time periods and/or geographical areas not so severed. Moreover, in the event that any provision, or the application thereof, of Section 11.1(a) is determined not to be specifically enforceable, the Company shall nevertheless be entitled to seek to recover monetary damages as a result of the breach of Section 11.1(a) by VeriSign or any of its Affiliates (other than entities affiliated with directors and officers of VeriSign which are not also otherwise Affiliates of VeriSign but for the fact that the director or officer of VeriSign is affiliated with such entity).
(d) Each of the Fox Member and News shall use its reasonable efforts to cause its Affiliates to use the Company as a primary go to market vehicle on a global basis for consumer mobile services.
(e) To the extent that the Company decides to outsource B-to-B Business services (other than those services addressed in the Gateway Services Agreement) and to the extent that the functionality, usability and pricing of such offerings by VeriSign are substantially similar to or better than those of the applicable competitor, VeriSign will be the Companys preferred provider of such services and, as such, as part of the vendor selection process will be given the opportunity to present a responsive solution prior to selecting any competitive offering.
(f) No less frequently than quarterly, a representative of News and a representative of VeriSign shall meet to discuss features, capabilities and services that VeriSign may be able to offer News and/or its Affiliates (including the Company). VeriSign will have an opportunity to participate in these opportunities, to the extent practicable, prior to formal discussions by News (or its Affiliates, as the case may be) with other Persons and at new, mutually agreed upon commercial terms and conditions to be negotiated at such time. An employee of News shall serve as a liaison for the this preferred supplier relationship, which liaison shall be identified within thirty (30) days of Closing. The Covenant contained in this Section 11.1(f) shall terminate upon the earlier of (x) five years after the Closing Date and (y) the exercise of the VeriSign Member of the First Put Option Right or the Second Put Option Right, as applicable.
(a) The Fox Member shall not (and News shall not) and VeriSign shall not, without the prior consent of the other Member, for so long as it beneficially owns any Company Interest and for a period of three years thereafter, directly or indirectly, solicit for employment any employees of the Company other than (i) any employee who has been terminated by the Company prior to the commencement of employment discussions with such other Member or
who contacts such other Member on his own initiative without prompting from such other Member other than as permitted in clause (ii), or (ii) any employee who responds to a solicitation which constitutes a good faith general solicitation, mass advertisement or similar type of broad based publicly disseminated solicitation through advertisement or search firms not specifically directed toward employees of the Company.
(b) Subject to any restrictions imposed by applicable law, for so long as the VeriSign Member beneficially owns any Company Interest, the Company shall not, without the prior consent of the VeriSign Member, directly or indirectly, solicit for employment any employees of VeriSign other than (i) any employee who has been terminated by VeriSign prior to the commencement of employment discussions with the Company or who contacts the Company on his own initiative without prompting from such other Member other than as permitted in clause (ii), or (ii) any employee who responds to a solicitation which constitutes a good faith general solicitation, mass advertisement or similar type of broad based publicly disseminated solicitation through advertisement or search firms not specifically directed toward employees of VeriSign.
(a) Each of the Company and each Member acknowledges that in the course of the formation, and during the operation, of the Company it has or shall receive confidential and proprietary information concerning the assets, business plans, intellectual property rights and operations of the Company and the other Members and their respective Affiliates (Confidential Information). Each of the Company, each Member and each Manager agrees that the Confidential Information is a valuable asset of the Company or its owner, as the case may be, and its public disclosure or use outside of the Companys activities without the prior consent of the Company and/or the relevant Member would cause substantial harm to the Company, such disclosing Member or other Person. Therefore, each of the Company and each Member and Manager agrees to treat all Confidential Information received by it with the amount of care that a reasonable business Person would use to protect its own valuable and proprietary confidential information and shall not disclose any Confidential Information to any Person who does not have a contractual obligation with such Person to keep such Confidential Information confidential. In addition, each of the Company and each Member and Manager shall not personally, and shall not permit other Persons (including its Affiliates) to utilize Confidential Information for any purpose other than for the benefit of the Company or the owner of such information, as the case may be.
(b) Notwithstanding the foregoing, the Company, a Member or a Manager may disclose Confidential Information to its Affiliates and professional advisors, if such Persons have agreed to comply with the provisions of this Section 11.3 and as otherwise required by law and subject to Section 11.3(c).
(c) As used herein, Confidential Information shall not include information (i) that has become generally available to the public through no fault of the receiving Person, (ii) to the minimum extent necessary in order to comply with any law, order, regulation, ruling or other governmental request pursuant to subpoena or government order, provided that in the event a receiving Person is subject to such a subpoena or order, it shall notify in writing the disclosing Person of such event, and shall cooperate with any reasonable request or efforts by the disclosing Person, at the expense of the disclosing Person, to take reasonable legally permissible actions to
limit the scope of disclosure required in order for such Person to comply with such subpoena or order and (iii) to the minimum extent necessary in response to any required report, statement or testimony submitted to any municipal, state or national (including foreign regulatory) bodies having or claiming to have jurisdiction over such Person, provided that it shall notify in writing the disclosing Person of such event, and shall cooperate with any reasonable request or efforts by the disclosing Person, at the expense of the disclosing Person, to take legally permissible actions to limit the scope of disclosure.
11.4 Public Offering. If, in connection with a Qualified IPO, (a) the Board approves a recapitalization of, or a transaction that contemplates the recapitalization of , the Company or any of its Subsidiaries, whether involving a merger, contribution of Equity Securities, share exchange or otherwise (a Recapitalization) and (b) pursuant to such Recapitalization, the Members will receive common stock of the corporation that will consummate such Qualified IPO in exchange for the Equity Securities of the Company then held by such Members, then the Company and all Members shall take, at the Companys expense, all reasonable actions in connection with the consummation of such Recapitalization as the Board so requests, including the approval of a merger or conversion of the Company or one or more of its Subsidiaries with and into a corporation, execution of applicable customary holdback (not to exceed one hundred eighty (180) days, and provided all officers, directors and one percent (1%) stockholders execute such holdback agreements) and underwriting agreements, registration rights agreements and compliance with the requirements of all laws, exchanges and other self-regulatory organizations that are applicable to, or have jurisdiction over, such Qualified IPO. The common stock of any corporation issued to the Members in connection with any Recapitalization shall be allocated to each Member pro rata based on its Percentage Interest and shall have the same voting, dividend and other rights, preferences and privileges.