Exhibit 10.2


 


FORM OF AMENDED AND RESTATED NON-COMPETITION
AGREEMENT *


 


THIS
AMENDED AND RESTATED NON-COMPETITION AGREEMENT (this “Agreement”), is
effective as of December 31, 2005 (the “Effective Date”) by and
between Intrado Inc., a Delaware corporation (“Intrado”), and                * (“Executive”), collectively referred to hereinafter
as the “Parties.”


 


RECITALS


 


WHEREAS,
Intrado is in the business of providing emergency communications software,
services and systems, including 9-1-1 applications, data management and network
systems that enable the delivery of 9-1-1 calls in the United States of
America, along with notification services and other contemplated products and
services; and


 


WHEREAS,
Executive has served as [Title] since [Year] and has diligently served Intrado
over the course of his employment with Intrado and its predecessors; and


 


WHEREAS,
Executive possesses specialized knowledge of Intrado’s strategies, products,
services, customers, employee skills and other confidential and proprietary trade
secret information accumulated over time at great expense to Intrado, which
trade secret information is of value to it and crucial to its business
survival, and which provides Intrado with a demonstrable advantage over
competitors; and


 


WHEREAS,
the Parties wish to provide for the terms and conditions by which Executive
would receive compensation in exchange for his covenant to not compete with
Intrado in the event of a termination of Executive’s employment with Intrado
under certain circumstances; and


 


WHEREAS,
Intrado and Executive entered into the Non-Competition Agreement dated December 1,
2003 (the “Original Agreement”); and


 


WHEREAS,
Intrado and Executive wish to modify the Original Agreement by entering into
this Amendment to reflect the changes specifically set forth below.


 


AGREEMENT


 


NOW,
THEREFORE, in consideration of the promises, mutual covenant and agreements
contained herein, the receipt and sufficiency of which are hereby acknowledged,
Intrado and Executive agree as follows:


 


1.                                       Definitions.  The following terms shall have the meanings
set forth below:


 


“Cause” shall mean the (A) willful
misconduct or gross or persistent negligence in the discharge of Executive’s
duties which is materially injurious to the financial condition of Intrado; (B) commission
of an act of dishonesty that is reasonably expected to be materially injurious
to the financial condition of Intrado; (C) willful or knowing violation by
Executive (or by the Company as a direct and foreseeable result of Executive’s
actions) of any statutes, rules or regulations of any governmental or
regulatory body, which is or is reasonably expected to be materially injurious
to the financial condition of Intrado; or (D) conviction of, or plea of
guilty or nolo contendere to, a felony.


 


“Change in Control” means one or more of the
following events, under the following guidelines:


 


(a)                                  Change
in Ownership.  Any one person, or
more than one person acting as a group (as defined below), acquires ownership
of stock of Intrado that, together with stock held by such person or group,
constitutes more than 50% of the total fair market value or total voting power
of the stock of Intrado.  However, if any
one person or more than one person acting as a group is considered to own more
than 50% of the total fair market value or total voting power of the stock of
Intrado, the acquisition of additional stock by the same person or persons
shall not be considered to cause a change in the ownership of Intrado (or to
cause a change in the effective


 





















 


control of Intrado as defined below).  An increase in the percentage of stock owned
by any one person, or persons acting as a group, as a result of a transaction
in which Intrado acquires its stock in exchange for property will be treated as
an acquisition of stock for this purpose.


 


(b)                                 Change
in Effective Control.  Either (a) any
one person, or more than one person acting as a group (as determined under subsection (e) below),
acquires (or has acquired during the 12-month period ending on the date of the
most recent acquisition by such person or persons) ownership of stock of
Intrado possessing 35% or more of the total voting power of the stock of
Intrado, or (b) a majority of members of Intrado’s board of directors
resigns or is otherwise replaced during any 36-month period by directors whose
appointment or election is not endorsed by a majority of the members of Intrado’s
board of directors prior to the date of the appointment or election.


 


(c)                                  Change
in Ownership of a Substantial Portion of Assets.  Any one person, or more than one person
acting as a group (as determined in subsection (d) below), acquires
(or has acquired during the 12-month period ending on the date of the most
recent acquisition by such person or persons) assets from Intrado that have a
total gross fair market value equal to or more than 60% of the total gross fair
market value of all of the assets of Intrado immediately prior to such
acquisition or acquisitions.  For this
purpose, gross fair market value means the value of the assets of Intrado, or
the value of the assets being disposed of, determined without regard to any
liabilities associated with such assets. 
However, there is no Change in Control under this subsection (c) when
there is a transfer to an entity that is controlled by the shareholders of the
transferring corporation, as provided in Internal Revenue Service Notice 2005-1,
A-14(b).


 


(d)                                 Persons
Acting as a Group.  For the purposes
of this definition of “Change in Control,” persons will not be considered to be
acting as a group solely because they purchase or own stock, or purchase
assets, of Intrado at the same time, or as a result of the same public
offering.  However, persons will be
considered to be acting as a group if they are the owners of a corporation that
enters into a merger, consolidation, purchase or acquisition of stock or
assets, or similar business transaction with Intrado.  If a person, including an entity, owns stock
in such a corporation and in Intrado at a time that both of the companies enter
into a merger, consolidation, purchase or acquisition of stock or assets, or
similar transaction, such shareholder is considered to be acting as a group
with other shareholders in a corporation only with respect to, and to the
extent of, the ownership in that corporation prior to the transaction giving
rise to the change and not with respect to the ownership interest in the other
corporation.


 


(e)                                  Attribution.  For purposes of this definition of “Change in
Control,” the attribution rules of Section 318 of the Code shall
apply to determine stock ownership. 
Stock underlying a vested option is considered owned by the individual
who holds the vested option (and the stock underlying an unvested option shall
not be considered owned by the individual who holds the unvested option).  For purposes of the preceding sentence,
however, if a vested option is exercisable for stock that is not substantially
vested (as defined by Income Tax Regulations Sections 1.83-3(b) and (j)),
the stock underlying the option is not treated as owned by the individual who
holds the option.


 


“Code” means the Internal Revenue Code of 1986,
as amended.


 


2.                                       Following
a Change in Control.  Following the
first Change in Control of Intrado after the date of this Agreement (the “First
Change of Control”), the following provisions will apply:


 


(a)                                  Upon
termination of Executive’s employment by Intrado or its successor for Cause,
Executive will be obligated to not compete with Intrado as set forth in
paragraph 5 below; provided, however, that Executive will not be entitled to
the compensation delineated in paragraph 4 below.


 


Confidential


 


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(b)                                 Except
for a termination of Executive’s employment for Cause, any termination of
Executive’s employment with Intrado or its successor, for any reason or for no
reason, within one year (365 consecutive days) following the date of the First
Change in Control will entitle Executive to the compensation delineated in
paragraph 4 below, and will also obligate Executive to not compete with Intrado
as set forth in paragraph 5, below. 
Executive may invoke his right to receive the compensation delineated in
paragraph 4 below by voluntarily resigning his employment with Intrado. Such a
resignation: (i) must be invoked within one year (365 consecutive days)
following the date of the First Change in Control, (ii) must be evidenced
in writing and must be delivered to Intrado’s Board of Directors not less than
fourteen (14) days prior to the effective date of the resignation, and (iii) obligates
Executive to not compete with Intrado, as set forth in paragraph 5 below, as of
the effective date of such resignation.


 


(c)                                  Upon
a termination of Executive’s employment for any reason after one year (365
consecutive days) following the date of the First Change in Change, other than
a termination for Cause, the Company, in its sole discretion, may provide
Executive with the compensation delineated in paragraph 4 below and in such an
event, Executive will be obligated to not compete with Intrado as set forth in
paragraph 5 below.


 


3.                                       Prior
to a Change in Control.  Prior to any
Change in Control of Intrado, the following provisions will apply:


 


(a)                                  Upon
termination of Executive’s employment by Intrado or its successor for Cause,
Executive will be obligated to not compete with Intrado as set forth in
paragraph 5 below; provided, however, that Executive will not be entitled to
the compensation delineated in paragraph 4 below.


 


(b)                                 Upon
termination of Executive’s employment by Executive or by Intrado or its successor
for any reason other than for Cause, the Board of Directors of Intrado (the “Board”),
in its sole discretion, may provide Executive with the compensation delineated
in paragraph 4 below and in such an event, Executive will be obligated to not
compete with Intrado as set forth in paragraph 5 below.  The Board has twenty (20) days following
termination of employment, or, if earlier, twenty (20) days after the Executive
has given notice to the Company of Executive’s intent to resign, but in no
event earlier than the date of the termination of Executive’s employment, to
invoke its right to obligate Executive not to compete with Intrado, and shall
do so by providing written notice to Executive that the Company is so invoking
its right.  In the event the Board does
not timely provide such notice, the Executive shall not be bound by the
provisions of paragraph 5, below, and the Company shall not provide to
Executive the compensation set forth in paragraph 4, below.


 


4.                                       Compensation.


 


(a)                                  Upon
a termination referenced in subsection 2(b) or 2(c) or a
determination by the Board to provide Executive with compensation after a
termination referenced in subsection 3(b) (each, a “Trigger”),
Intrado or its successor will pay a one-time lump sum payment in an amount
equal to the highest annual total compensation (salary plus bonus, but not
equity-based compensation) earned by Executive during the three (3) calendar
years preceding the date of the Trigger, multiplied by _____ (__).**  Although, under
the terms of this Agreement, Executive does not have an express or implied
right to elect payment of such compensation in the form of Intrado common
stock, nothing herein shall be deemed to prevent the Parties from discussing
and subsequently agreeing to allow Executive to be paid in Intrado common stock
so long as such an agreement is by mutual written agreement.


 


(b)                                 Deferral
Accounts.


 


(i)                                     The
payment required by Section 4(a) will not be paid currently to
Executive.  Instead, the amount of such
payment will be paid in a single lump sum into a trust established under the
Intrado Inc. Nonqualified Deferred Compensation Plan (the “DCP”), and
the amount of such payment shall be credited to a separate account or sub-account
established and maintained for Executive under the DCP (the “Deferral
Account”).  The Deferral Account,
including deemed earnings thereon, shall be accounted separately from any other
account or sub-account maintained for Executive under the DCP.  Except as otherwise provided in this Section 4(b),
the Deferral Account shall become payable during the Non-Compete Period defined
in subsection 5(a), below, as follows: 
The first distribution date shall occur on the first day that occurs
more than six (6) months from the


 


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termination date.   A
distribution date shall also occur on each monthly anniversary of the first
distribution date until the Deferral Account is fully distributed.  The amount of the Deferral Account payable to
Executive on the first distribution date shall be equal to the product of (a) entire
balance of the Deferral Account (including deemed earnings therein) and (b) six
(6) divided by the total number of months in the Non-Compete Period.  The amount of the Deferral Account that
becomes payable to Executive on each subsequent distribution date shall be
equal to the product of (x) the entire remaining balance of the Deferral
Account (including deemed earnings therein) and (y) one (1) divided by the
number of calendar months in the Non-Compete Period remaining after the
preceding distribution date. Any portion of the Deferral Account that becomes
payable under this Section 4(b) shall be paid as soon as
administratively practicable after the date that it becomes payable but no
later than five (5) business days after that date.


 


(ii)                                  If
Executive breaches certain provisions of this Agreement, the entire remaining
balance of the Executive’s Deferral Account shall be forfeited and Executive
shall be required to return certain payments from the Deferral Account, under
the circumstances described in subsection 5(d), below.  Upon Executive’s death, any remaining balance
in the Executive’s Deferral Account shall be payable to the Executive’s estate
or personal representative.  Upon a
Change in Control that qualifies as a change in ownership or effective control
of Intrado or in the ownership of a substantial portion of its assets within
the meaning of Code Section 409A(a)(2)(iv) and administrative
guidance thereunder and that follows any Trigger, the entire remaining balance
of the Executive’s Deferral Account shall become payable to Executive.


 


(c)                                  In
addition to the compensation referenced in subsection 4(a) above,
upon a Trigger, Executive shall be entitled to receive life insurance coverage
for a period of twelve (12) months from the Trigger, and to participate for the
same period in Intrado’s or its successor’s group health insurance policy in
accordance with COBRA, with the Executive being required to sustain no greater
out-of-pocket expense for such coverage than would be paid by Intrado’s active
full-time employees for similar coverage immediately prior to the Trigger.  At the end of the period in which Executive
is entitled to participate in Intrado’s or its successor’ group health
insurance policy in accordance with COBRA, the Company shall, for the
remainder, if any, of the Non-Competition Period, procure third-party health
insurance coverage for Executive at levels comparable to the health benefits
available to Intrado’s or its successor’s active full-time employees, with
Executive being required to sustain no greater out-of-pocket expense for such
coverage than would be paid by Intrado’s active full-time employees for similar
coverage immediately prior to the Trigger.


 


(d)                                 Cut
Back in Provisions.


 


(i)                                     If
it is determined that any payment or benefit provided by the Company to or for
the benefit of the Executive, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, including,
by example and not by way of limitation, acceleration by the Company or
otherwise of the date of vesting or payment under any plan, program,
arrangement or agreement of the Company, but excluding the payment required
under (ii), below, would be subject to the excise tax imposed by Code section 4999
or any interest or penalties with respect to such excise tax (such excise tax
together with any such interest and penalties, shall be referred to as the “Excise
Tax”), then the Company shall first make a calculation under which such
payments or benefits provided to the Executive are reduced to the extent
necessary so that no portion thereof shall be subject to the Excise Tax (the “4999
Limit”).  The Company shall then
compare (a) the Executive’s Net After-Tax Benefit (as defined below)
assuming application of the 4999 Limit with (b) the Executive’s Net
After-Tax Benefit without application of the 4999 Limit.  The Executive shall be entitled to the
greater of (a) or (b).  “Net
After-Tax Benefit” shall mean the sum of (i) all payments that Executive
receives or is entitled to receive from the Company that are contingent on a
change in the ownership or effective control of Intrado or in the ownership of
a substantial portion of the assets of Intrado within the meaning of Code section 280G(b)(2),
less (ii) the amount of federal, state, local, employment, and Excise Tax
(if any) imposed with respect to such payments. 
If the Executive is required to reduce payments to which he is otherwise
entitled such that no portion thereof is subject to the Excise Tax, the
Executive shall choose which payments shall be reduced and the amount of the
reduction of each payment.


 


(ii)  Executive and the Company believe that the
payments required herein constitute reasonable compensation that is not subject
to the application of section 280G or section 4999 of the Code, and
agree to report consistently with this position on their federal income tax
returns (the “Agreed Position”).  Intrado
shall indemnify Executive for any penalty and interest incurred by Executive as
a result of taking the Agreed


 


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Position, together with reasonable attorneys fees and other reasonable
professional fees incurred in contesting a disallowance by the Internal Revenue
Service of the Agreed Position. The amount for which Executive is indemnified
under the preceding sentence (the “Indemnified Amount”) shall be
computed on an after-tax basis, taking into account any income or other
taxes.  Executive shall keep Intrado
informed of all developments in any audit with respect to the Agreed
Position.  The rights to indemnification
conferred under this Section 4(d)(ii) shall include the right to be
paid by the Company, when and as incurred, on an after-tax basis, the
reasonable expenses incurred by Executive of the type entitled to be
indemnified under this Section 4(d)(ii).  
Intrado shall be entitled, at its sole expense, to control the contest
of any disallowance or proposed disallowance of the Agreed Position (a “Contest”),
and Executive agrees to cooperate in connection with a Contest, including,
without limitation, executing powers of attorney and other documents at the
reasonable request of Intrado; provided, however, that Intrado may not propose
or agree to a settlement of a Contest on behalf of Executive, or forego on
behalf of Executive an appeal of an adverse determination received in the
course of a Contest. without the prior written approval of Executive, which
approval may not be unreasonably withheld, conditioned or delayed; provided,
further, that Executive’s decision not to approve a settlement shall be deemed
to be unreasonable if a majority of similarly situated former executives of
Intrado who have substantially similar settlement opportunities with respect to
the Agreed Position approve of substantially similar settlements in their own
cases.  If the disallowance of the Agreed
Position is litigated in a forum that requires prepayment of the tax in
dispute, Intrado shall advance to Executive the full amount of tax (and
interest and penalties, if any) required to be paid as a condition of
commencing the litigation; provided, however, that upon the final resolution of
the Agreed Position, Executive shall refund to Intrado the amount of tax
advanced by Intrado to Executive under the preceding sentence together with
interest thereon at the applicable federal rate under Code Section 7872(f)(2),
except that such interest shall not be payable with respect to advances of any
taxes for which Executive is liable under such final determination.  Except as otherwise provided in this Section 4(d)(ii),
the Indemnified Amount shall be payable when and as amounts of interest or
penalties for which Executive is indemnified are payable to the U.S. Treasury
Department as a. result of the disallowance of the Agreed Position.  Following payment by Intrado of the
Indemnified Amount, if the Agreed Position is sustained by the Internal Revenue
Service or the courts, Intrado shall be entitled to any resulting receipt of
interest or refund of interest and penalties that were properly attributable to
the Indemnified Amount.  If the Agreed
Position is sustained in whole or in part in a final resolution of a Contest
(after any appeals have been exhausted), and if the amount of the Indemnified
Amount paid or advanced to Executive therefore exceeds the amount of penalties
and interest payable by Executive as a result of the Agreed Position
(determined on an after-tax basis after taking into account payments made
pursuant to the preceding sentence and this sentence), any such excess portion
of the Indemnified Amount shall be treated as a loan by Intrado to Executive,
which loan Executive must repay to Intrado together with interest at the
applicable federal rate under Code Section 7872(f)(2).


 


5.                                       Non-Compete.


 


(a)                                  Executive
acknowledges that, in the course of Executive’s employment with Intrado and/or
its affiliates and their predecessors, Executive has become familiar, or will
become familiar, with Intrado’s and its affiliates’ and their predecessors’
trade secrets and with other confidential information concerning Intrado, its
affiliates and their respective predecessors and that Executive’s services have
been and will be of special, unique and extraordinary value to Intrado and its
affiliates.  Therefore, Executive agrees
that for        (    )** years following a Trigger (the “Non-Compete Period”),
Executive shall not (except on behalf of Intrado or with Intrado’s prior
written consent), directly or indirectly, (i) engage in Intrado’s business
in the United States of America or any foreign country where, as of the date of
termination, Intrado has existing and paying customers or has invested a
substantial amount of effort or money with the intent of obtaining paying
customers and there is a reasonable probability at such time that Intrado will
obtain such customers during the Non-Compete Period (the “Territory”), (ii) interfere
with the business of Intrado, or (iii) own, manage, control, participate
in, consult with, render services for or in any manner engage in or represent
any business within the Territory that is competitive with Intrado’s business
or any product of Intrado’s business as such business is conducted or proposed
to be conducted from and after the date of this Agreement.  Nothing herein shall prohibit Executive from
being a passive owner of not more than five percent (5%) of the outstanding
stock of any class of a corporation which is publicly traded, so long as
Executive has no active participation in the business of such corporation.


 


(b)                                 During
the Non-Compete Period, Executive shall not in the Territory directly or
indirectly through another person or entity (i) induce or attempt to
induce any employee of Intrado or any affiliate of Intrado to leave the employ
of Intrado or such affiliate, or in any way interfere with the relationship
between Intrado


 


5





















 


or such affiliate, on the one hand, and any employee or consultant
thereof, on the other hand, (ii) hire or engage as a consultant or
otherwise any person who is or was an employee or consultant of Intrado or any
affiliate of Intrado until twelve (12) months after such individual’s
employment or consulting relationship with Intrado or such affiliate has been
terminated or (iii) induce or attempt to induce any customer, supplier,
subcontractor, licensee or other business relation of Intrado or any affiliate
of Intrado to cease doing business with Intrado or such affiliate, or in any
way interfere with the relationship between any such customer, supplier,
licensee or business relation, on the one hand, and Intrado or any affiliate,
on the other hand.


 


(c)                                  During
the Non-Compete Period, and except as is necessary to comply with subsection 5(d),
below, Executive shall not disclose or otherwise communicate to any of the customers
or accounts of Intrado or any of its affiliates that Executive has been
terminated, is considering terminating, or has decided to terminate, employment
with Intrado, and Intrado shall have sole discretion to determine who may
notify the customer or accounts of Intrado or any affiliate of the termination
of Executive’s employment, and the form, substance and timing of such
notification; provided that Executive may disclose to other individuals the
fact that Executive is no longer employed with the Company.


 


(d)                                 During
the Non-Compete Period, Executive will refrain from making statements that
criticize, disparage or ridicule Intrado or any of its affiliates, members,
shareholders, directors, officers, employees or agents (each, an “Intrado Party”)
and are detrimental to the reputation or image of any Intrado Party.  Executive agrees that if Executive receives
an inquiry from a third party that seeks to elicit an opinion of Executive
regarding any Intrado Party, Executive shall, except as provided otherwise in
this subsection 5(d) with respect to certain transactions or proposed
transactions involving the Company, respond by stating that there is no
existing relationship between Executive and such Intrado Party and that
Executive is unable to comment further. 
Such statements (or words to that effect) shall not constitute a
statement that criticizes, disparages or ridicules any Intrado Party and that
is detrimental to the reputation or image of any Intrado Party.  During the Non-Compete Period, Executive shall
reasonably cooperate with any reasonable requests, from Intrado or a party
negotiating with Intrado, for information concerning Intrado in connection with
any transaction or proposed transaction involving the Company with respect to
which the Board requests Executive’s cooperation, and shall, in the course of
such cooperation, make no statement and take no action that could reasonably be
viewed as intending to impede or discourage the transaction or proposed
transaction.  Executive agrees and
acknowledges that the foregoing provisions of subsection 5(d) are
reasonably designed to carry out the purposes of this Agreement, and do not
constitute an unreasonable or overly broad limitation on Executive’s speech or
action.


 


(e)                                  If
Executive is found to have materially breached the terms of subsection 5(a),
5(b), 5(c), 5(d) or 6, below, by a preponderance of the evidence as
determined in a final determination by an Arbitrator (as defined in Section 14(a)),
Executive agrees that he has not earned and shall not be entitled to any
remaining balance in Executive’s Deferral Account; and Executive also shall not
have earned and shall not be entitled to any future benefits under subsection 4(c).   Executive’s failure to earn such rights to
payments and benefits shall not prejudice the Intrado Party right to recover
from Executive, in law or in equity, any additional damages that it actually
suffers as a result of Executive’s breach of the terms of this Agreement;
provided that, except where a Trigger arises out of a termination for Cause,
the total amount of damages that the Intrado Party is entitled to recover as a
result of such breach (including amounts to which the Executive is not entitled
by reason of this Section 5(e)) may exceed the total amount that would be
payable to Executive under this Agreement in the absence of any breach only if
the Intrado Party establishes by clear and convincing evidence that Executive
has materially breached the terms of subsection 5(a), 5(b), 5(c), 5(d) or
6 (proof of damages must still be proven by a preponderance of the evidence).


 


(f)                                    Executive
understands that the foregoing restrictions may limit Executive’s ability to
earn a livelihood in a business similar to the business of Intrado, but
Executive nevertheless believes that Executive has received and will receive
sufficient consideration and other benefits as an Executive and management
employee of Intrado and as otherwise provided hereunder or as described in the
recitals hereto to clearly justify such restrictions which, in any event (given
Executive’s education, skills and ability), Executive does not believe would
prevent Executive from otherwise earning a living.


 


(g)                                 Executive
shall inform any prospective or future employer of any and all restrictions
contained in this Agreement and provide such employer with a copy of such
restrictions (but no other terms of this Agreement), prior to the commencement
of that employment.


 


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(h)                                 Executive
acknowledges the following provisions of Colorado law, set forth in Colorado
Revised Statutes § 8-2-113(2):


 


“Any covenant not to
compete which restricts the right of any person to receive compensation for
performance of skilled or unskilled labor for any employer shall be void, but
this subsection (2) shall not apply to:


 


(i) Any contract for
the purchase and sale of a business or the assets of a business;


 


(ii) Any contract
for the protection of trade secrets;


 


(iii) Any contract
provision providing for the recovery of the expense of educating and training
any employee who has served an employer for a period of less than two years;
and


 


(iv) Executive and
management personnel, and officers and employees who constitute professional
staff to employee and management personnel.”


 


Executive acknowledges that this Agreement is a contract for the
protection of trade secrets under § 8-2-113(2)(b), and is intended to
protect the confidential information of Intrado and that Executive is an
executive and management employee, within the meaning of § 8-2-113(2)(d).


 


(i)                                     If
any court of competent jurisdiction or Arbitrator declares any provision of
this Section 5 invalid or unenforceable, the remainder of Section 5
shall remain fully enforceable.  To the
extent that any court or Arbitrator concludes that any provision of this
agreement is void or voidable, the court or Arbitrator shall reform such
provision(s) to render the provision(s) enforceable, but only to the extent
necessary to render the provision(s) enforceable and only in view of the
parties’ express desire that Intrado and its affiliates be protected to the
greatest extent possible under applicable law from improper competition and/or
the misuse or disclosure of trade secrets, and/or confidential information.


 


6.                                       Confidentiality.  Executive agrees that for the Non-Compete
Period, and for any subsequent periods expressly included in the Nondisclosure
Agreement between Intrado and Executive, Executive will not use, disclose or
otherwise communicate any specialized knowledge or other trade secret of Intrado,
its predecessors and/or successors, as defined in such Nondisclosure Agreement,
incorporated herein by reference.


 


7.                                       Enforcement.  Because Executive’s services are unique and
because Executive has access to confidential information and work product of Intrado,
the Parties hereto agree that money damages would be an inadequate remedy for
any breach of this Agreement.  In the
event of a breach or threatened breach of this Agreement, Intrado or its
successors or assigns will be entitled to injunctive relief, in addition to
other rights and remedies existing in their favor at law or in equity in order
to enforce, or prevent any violations of, the provisions hereof (without
posting a bond or other security).


 


8.                                       Representations
and Warranties of Executive.  Executive
hereby represents and warrants to Intrado that (a) the execution, delivery
and performance of this Agreement by Executive does not and will not conflict
with, breach, violate or cause a default under any agreement, contract or
instrument to which Executive is a party or any judgment, order or decree to
which Executive is subject, (b) Executive is not a party to or bound by
any employment agreement, consulting agreement, non-compete agreement,
confidentiality agreement or similar agreement with any person or entity other
than Intrado and (c) upon the execution and delivery of this Agreement by
Intrado and Executive, this Agreement will be a valid and binding obligation of
Executive, enforceable in accordance with its terms.


 


9.                                       American Jobs Creation Act.  It is the intention of the Parties that
payments or benefits payable under this Agreement not be subject to the
additional tax imposed pursuant to Section 409A of the Code, and the
provisions of this Agreement shall be construed and administered in accordance
with such intent. To the extent such potential payments or benefits could
become subject to Section 409A, the Parties shall cooperate to amend this
Agreement with the goal of giving Executive the economic benefits described
herein in a manner that does not result in such tax being imposed.


 


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10.                                 Severability.  It is the desire and intent of the parties
hereto that the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. 
Accordingly, if any particular provision of this Agreement shall be
adjudicated by a court of competent jurisdiction or in arbitration to be
invalid, prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of
this Agreement or affecting the validity or enforceability of such provision in
any other jurisdiction.  Notwithstanding
the foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of
such provision in any other jurisdiction.


 


11.                                 Complete Agreement.  This Agreement and those documents expressly
referred to herein embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have
related to the subject matter hereof in any way, but excluding the
Nondisclosure Agreement between Intrado and Executive.


 


12.                                 Successors and Assigns.  Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by
Executive and Intrado and their respective successors, assigns, heirs,
representatives and estate; provided, however, that the rights and obligations
of Executive under this Agreement shall not be assigned without the prior
written consent of Intrado.  Intrado may
assign this Agreement and its rights, together with its obligations hereunder,
in connection with any sale, transfer or other disposition of all or
substantially all of its assets or business, whether by merger, consolidation
or otherwise; provided, however, that the purchaser or successor expressly
assumes the provisions of this Agreement or becomes liable under this Agreement
by operation of law.


 


13.                                 Governing Law.  Except as provided in paragraph 14, this
Agreement will be governed by and construed in accordance with the laws of the
State of Colorado without giving effect to any choice of law or conflicting
provision or rule that would cause the laws of any jurisdiction other than
the State of Colorado to be applied.


 


14.                                 Arbitration.  Except as provide in subparagraph (d),
below, all disputes or controversies arising out of or relating to this
Agreement, Executive’s employment with Intrado, or the termination or
cancellation of that employment or this Agreement, including without limitation
any claim by Executive under any federal, state or local law or statute
regarding discrimination in employment, shall be resolved by final and binding
arbitration in Denver, Colorado in accordance with the following provisions:


 


(a)                                  Because
Intrado operates in interstate commerce, the Federal Arbitration Act, 9 U.S.C. § 101
et seq., shall govern the arbitration,
which shall be conducted pursuant to the then-prevailing rules of the
American Arbitration Association (AAA) and its Employment Dispute Resolution
Procedures.


 


(b)                                 The
Arbitrator may permit limited discovery and any discovery disputes shall be
resolved in favor of expeditious and cost-effective resolution of the
dispute.  Following the hearing, the
Arbitrator shall render a reasoned decision within thirty (30) days, or as soon
thereafter as is administratively practicable. 
The decision of the Arbitrator, which may include equitable relief (but
not punitive damages), shall be final and binding on the parties and judgment
upon the decision may be entered in any court of competent jurisdiction
pursuant to the Federal Arbitration Act.


 


(c)                                  If
Executive substantially prevails in any arbitration, Executive shall be
entitled to receive its reasonable attorneys’ fees, reasonable expert and non-expert
witness costs and expenses, and other costs and expenses reasonably incurred in
connection with the arbitration (together “Fees”) from the Company; provided,
however, that the arbitrator shall not award any Fees for time spent on any
claim or defense on which Executive did not substantially prevail.


 


(d)                                 Notwithstanding
the foregoing provisions of this Section 14, the following claims shall
not be subject to arbitration:  claims
for unemployment compensation benefits, workers compensation benefits (but not
claims of retaliation related to such benefits), matters which are not
arbitrable under the National Labor Relations


 


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Act, and actions for temporary injunctive relief to enforce the
provisions of Sections 5 or 6 hereof or to otherwise prevent unfair competition
or the use or disclosure of trade secrets or confidential information pending a
decision on any such claims by the Arbitrator - it being the express intention
of this provision to allow court proceedings for temporary injunctive relief to
preserve the status quo pending arbitration of such claims.


 


15.                                 Amendment and Waiver.  The provisions of this Agreement may be
amended and waived only with the prior written consent of Intrado and
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement or any provision hereof.


 


16.                                 Headings.  The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.


 


17.                                 Gender; Number.  Words of gender may be read as masculine,
feminine, or neuter, as required by context. 
Words of number may be read as singular or plural, as required by
context.


 


18.                                 Construction.  This Agreement has been freely negotiated by
both sides with the assistance of counsel. 
Executive is represented by Davis Graham and Stubbs LLP.  This Agreement shall not be construed for or
against any Party as the drafter, because both Parties contributed significantly
to the wording of this Agreement.


 


19.                                 Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.


 


[Signatures on following page]


 


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IN WITNESS
WHEREOF, the parties hereto have executed this Amended and Restated
Non-Competition Agreement as of the Effective Date stated above.


 


 


	
   

  	
  INTRADO INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
							



 










*                 Intrado Inc. has
entered Non-Competition Agreements with the following executive officers: (1) George
Heinrichs, President, Chief Executive Officer, Chairman of the Board and
co-founder; (2) Stephen M. Meer, Chief Technology Officer and co-founder; (3) Lawrence
P. Jennings, Chief Operating Officer; (4) Michael D. Dingman, Jr.,
Chief Financial Officer; (5) Craig W. Donaldson, Senior Vice President and
General Counsel; and (6) Teri L. Depuy, Senior Vice President.


 


**          George Heinrichs and
Stephen M. Meer are entitled to three (3) years of severance pay and must
abide by a three (3) year non-compete. Lawrence P. Jennings and Michael D.
Dingman, Jr. are entitled to two (2) years of severance pay and must
abide by a two (2) year non-compete. Craig W. Donaldson and Teri L. Depuy
are entitled to one (1) year of severance pay and must abide by a one (1) year
non-compete.


 


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