EXHIBIT 99.03
NONCOMPETITION AND NONSOLICITATION AGREEMENT
--------------------------------------------
This Noncompetition and Nonsolicitation Agreement (the "Agreement") is
---------
entered into as of June 4, 1997 by and between Electronic Arts Inc., a Delaware
corporation, ("Electronic Arts"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, a resident of California
---------------
("▇▇▇▇▇"). Any references to Electronic Arts in this Agreement shall be deemed
-----
to include subsidiaries of Electronic Arts, including without limitation, Maxis,
Inc. a Delaware corporation ("Maxis").
-----
RECITALS
A. This Agreement is entered into concurrently with the merger of
Maxis Acquisition Corporation, a Delaware corporation and a wholly owned
subsidiary of Electronic Arts, with and into Maxis (the "Merger"), pursuant to
------
that certain Agreement and Plan of Reorganization among Electronic Arts, Village
Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of
Electronic Arts, and Maxis, dated of even date herewith (the "Reorganization
--------------
Agreement").
---------
B. Pursuant to the Merger, Maxis will become a wholly owned
subsidiary of Electronic Arts.
▇. ▇▇▇▇▇ has been responsible for the growth and success of Maxis,
and ▇▇▇▇▇'▇ entering into and agreeing to be bound by this Agreement is a
material inducement for Electronic Arts and Maxis to consummate the Merger.
THEREFORE, in consideration of the promises and the terms and
conditions set forth in this Agreement, the parties agree as follows:
1. TERM OF AGREEMENT. This Agreement will commence on the Effective
-----------------
Date (as defined in the Reorganization Agreement) and will continue until two
years after the Effective Date.
2. COVENANTS AGAINST COMPETITION. ▇▇▇▇▇ acknowledges that the
-----------------------------
services ▇▇▇▇▇ has rendered to Maxis and may render to Electronic Arts are of a
special, unusual character which have a unique value to Electronic Arts, the
loss of which cannot adequately be compensated by damages in an action at law.
In view of the unique value to Electronic Arts of ▇▇▇▇▇'▇ services and the facts
set forth in the recitals to this Agreement, and as a material inducement to
Electronic Arts to consummate the Merger, ▇▇▇▇▇ hereby covenants and agrees with
Electronic Arts as follows:
2.1 ENGAGE IN BUSINESS. For a period of two (2) years after the
------------------
date hereof (such period hereinafter referred to as the "Noncompete Period"),
-----------------
▇▇▇▇▇ shall not, either for himself or for any other person or entity, directly
or indirectly, carry on or engage in any business in the interactive
entertainment software industry (the "Competing Area"), in any county of the
--------------
State of California, State of the United States, province of Canada or country
of the
world in which, or in any geographic area where, Maxis carries on, is actually
engaged in or currently contemplates doing such business, or maintains or
currently contemplates maintaining sales or service representatives or employees
for the purpose of carrying on or engaging in such business, or sells or
currently contemplates selling, directly or indirectly, products developed by
Maxis. "Carry on or engage in any business" within the meaning of this Section 2
----------------------------------
shall include, without limitation, each of the following activities: to actually
engage in, work with, have a financial interest in, advise, lend money to,
guarantee the debts or obligations of, or permit one's name or any part thereof
to be used in connection with, an enterprise or endeavor, either individually,
in partnership or in conjunction with any person or persons, firms,
associations, companies or corporations, whether as a principal, agent,
shareholder, employee, officer, director, partner, consultant or in any other
manner whatsoever; provided, however, that ▇▇▇▇▇ shall retain the right to
invest in or have an interest in entities traded on any public market or offered
by any national brokerage house, provided that such interest does not exceed two
percent (2%) of the voting control of such entity. In addition, ▇▇▇▇▇ may (a)
make passive investments in privately held entities that are determined by the
Board of Directors of Electronic Arts not to be competitors of the Maxis
business (not to be unreasonably withheld) and (b) maintain an ownership
interest in Neighborhood or any of its successors in any amount.
2.2 CUSTOMER SOLICITATION. During the Noncompete Period, ▇▇▇▇▇
---------------------
shall not, either for himself or for any other person or entity, directly or
indirectly, solicit business in the Competing Area from, or attempt to sell or
provide the same or similar products or services in the Competing Area to, any
clients or customers or potential clients or customers of Electronic Arts except
in connection with his employment with Electronic Arts.
2.3 ▇▇▇▇▇ SOLICITATION. During the Noncompete Period, ▇▇▇▇▇
------------------
shall not, either for himself or for any other person or entity, directly or
indirectly, solicit, induce or attempt to induce any employee or contractor of
Electronic Arts to discontinue his or her employment or provision of contracted
services for Electronic Arts.
2.4 ENFORCEABILITY. If any court of competent jurisdiction
--------------
shall determine that any provision of Sections 2.1, 2.2 or 2.3 of this Agreement
is unenforceable with respect to the term thereof or with respect to the scope
of subject matter or territory covered thereby, then such provision shall
nevertheless be enforceable by any such court upon such shorter term or within
such lesser scope as may be determined by such court to be reasonable and
enforceable.
3. MISCELLANEOUS.
-------------
3.1 DISPUTE RESOLUTION. ▇▇▇▇▇ and Electronic Arts shall submit
------------------
to mandatory binding arbitration in any controversy or claim arising out of, or
relating to, this Agreement or any breach hereof in Santa ▇▇▇▇▇ County,
California, in accordance with the commercial arbitration rules of the American
Arbitration Association then in effect, provided, however, that each of ▇▇▇▇▇
-------- -------
and Electronic Arts retains its rights to, and shall not be prohibited, limited
or in any other way restricted from, seeking or obtaining equitable relief from
a court having jurisdiction over the parties.
2
3.2 SEVERABILITY. If any provision of this Agreement shall be
------------
found by any arbitrator or court of competent jurisdiction to be invalid or
unenforceable, then the parties hereby waive such provision to the extent that
it is found to be invalid or unenforceable and to the extent that to do so would
not deprive one of the parties of the substantial benefit of its bargain. Such
provision shall, to the extent allowable by law and the preceding sentence, be
modified by such arbitrator or court so that it becomes enforceable and, as
modified, shall be enforced as any other provision hereof, all the other
provisions continuing in full force and effect.
3.3 REMEDIES. Electronic Arts and ▇▇▇▇▇ acknowledge that
--------
Electronic Arts would not have consummated the Merger unless ▇▇▇▇▇ had, among
other things, entered into this Agreement. Any breach of this Agreement will
result in irreparable damage to Electronic Arts for which Electronic Arts will
not have an adequate remedy at law. Accordingly, ▇▇▇▇▇ hereby consents and
agrees that for any breach or violation by ▇▇▇▇▇ of any of the provisions of
this Agreement (including, without limitation, Section 2), a restraining order
and/or injunction may be issued against ▇▇▇▇▇, in addition to any other rights
and remedies Electronic Arts may have, at law or equity, including, without
limitation, the recovery of money damages.
3.4 NO WAIVER. The failure by either party at any time to
---------
require performance or compliance by the other of any of its obligations or
agreements shall in no way affect the right to require such performance or
compliance at any time thereafter. The waiver by either party of a breach of
any provision hereof shall not be taken or held to be a waiver of any preceding
or succeeding breach of such provision or as a waiver of the provision itself.
No waiver of any kind shall be effective or binding, unless it is in writing and
is signed by the party against whom such waiver is sought to be enforced.
3.5 ASSIGNMENT. This Agreement and all rights hereunder are
----------
personal to ▇▇▇▇▇ and may not be transferred or assigned by ▇▇▇▇▇ at any time.
Any attempt by ▇▇▇▇▇ to do so will be void and of no effect. Electronic Arts
may assign its rights, together with its obligations hereunder, to any parent,
subsidiary, affiliate or successor, or in connection with any sale, transfer or
other disposition of all or substantially all of the business and assets of
Village, provided, however, that any such assignee assumes Electronic Arts'
-------- -------
obligations hereunder.
3.6 ENTIRE AGREEMENT. This Agreement constitutes the entire
----------------
and only agreement between the parties relating to the noncompetition and
nonsolicitation obligations of ▇▇▇▇▇, and this Agreement supersedes and cancels
any and all previous contracts, arrangements or understandings with respect
thereto.
3.7 AMENDMENT. This Agreement may be amended, modified,
---------
superseded, canceled, renewed or extended only by an agreement in writing
executed by all parties hereto.
3.8 NOTICES. All notices and other communications required or
-------
permitted under this Agreement shall be in writing and hand delivered, sent by
facsimile, sent by registered mail, postage pre-paid, or sent by nationally
recognized express courier service. Such
3
notices and other communications shall be effective upon receipt if hand
delivered or sent by facsimile, five (5) days after mailing if sent by mail, and
one (l) day after dispatch if sent by express courier, to the following
addresses, or such other addresses as any party shall notify the other parties:
If to Electronic Arts: Electronic Arts Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, SVP & General Counsel
If to ▇▇▇▇▇: ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
3.9 BINDING NATURE. This Agreement shall be binding upon, and
--------------
inure to the benefit of, the successors and personal representatives of the
respective parties hereto.
3.10 HEADINGS. The headings contained in this Agreement are for
--------
reference purposes only and shall in no way affect the meaning or interpretation
of this Agreement. In this Agreement, the word "or" is used in the inclusive
sense.
3.11 COUNTERPARTS. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original but all of which,
taken together, constitute one and the same agreement.
3.12 GOVERNING LAW. This Agreement and the rights and
-------------
obligations of the parties hereto shall be construed in accordance with the laws
of California, without giving effect to the principles of conflict of laws.
3.13 ADVICE OF COUNSEL. ▇▇▇▇▇ acknowledges that he has received
-----------------
the advice of counsel in connection with entering into this Agreement and is
fully aware of his rights and obligations under this Agreement.
4
IN WITNESS WHEREOF, Electronic Arts and ▇▇▇▇▇ have executed this Agreement as of
the date first above written.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
ELECTRONIC ARTS INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Its: Senior Vice President, General Counsel
[SIGNATURE PAGE TO NONCOMPETITION AND NONSOLICITATION
AGREEMENT]
5
