EXHIBIT 4.5
NON-COMPETITION AGREEMENT
This NON-COMPETITION AGREEMENT dated as of November 4, 1997 (this
"Agreement") is made and entered into by and among PSi Technologies, Inc., a
corporation organized and existing under the laws of the Philippines (the
"Company"), RFM Corporation, a corporation organized and existing under the laws
of the Philippines ("RFM"), Xxxxxx X. Xxxxx. Jr., an individual residing at Xx.
00 Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxx Xxxx, Xxxxxxxxxxx ("Young") and ML
IBK Positions, Inc., a corporation organized and existing under the laws of
Delaware ("Buyer").
WHEREAS, this Agreement is being entered into simultaneously with the
closing of Buyer's acquisition of certain shares of the Company from RFM and
United Development Corporation, a corporation organized and existing under the
laws of the Philippines ("UDC," and together with RFM, the "Sellers"), pursuant
to a Stock Purchase Agreement dated November 4, 1997 (the "Stock Purchase
Agreement") among Buyer, Sellers and the Company; and
WHEREAS, Buyer would not consummate the transactions contemplated by
the Stock Purchase Agreement but for, among other things, the covenants and
agreements of Young contained herein;
NOW, THEREFORE, in consideration of the covenants and agreements set
forth in this Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Covenant Against Competition. Young acknowledges that (i) the principal
business of the Company is the packaging and testing of, and other activities
related to, power semiconductors which are used in the regulation, conversion
and distribution of electricity (collectively, the "Business"), (ii) the Company
is one of a limited number of persons throughout the world which has developed
such Business; (iii) the Business is, in large part, international in scope and
the Company's customers, potential customers and competitors are located
throughout the world; and (iv) Young's work for the Company has given and will
continue to give him access to the confidential affairs and proprietary
information of the Company. Accordingly, Young covenants and agrees that:
(a) Young shall not, in the Philippines, Asia-Pacific region or
elsewhere directly or indirectly, for a period commencing on the date of this
Agreement and terminating on the day which (x) if Young's employment with the
company pursuant to the Compensation Package Agreement for Young, dated July 1,
1996 or any successor Compensation Package Agreement for Young put in place by
RFM expires, is one (1) year following such expiration or (y) Young's employment
is terminated, is two (2) years following such termination, (1)
engage in the Business for the account of Young or that of any person (other
than the Company) (2) render any services related to the Business to any person
(other than the Company) engaged in the Business; or (3) become interested in
any such person (other than the Company) as a partner, shareholder, principal,
agent, trustee, consultant or in any other relationship or capacity: provided,
however, that notwithstanding the above, Young may own, directly or indirectly,
solely as an investment, securities of any such person which are traded on any
national securities exchange if Young (x) is not a controlling person of, or a
member of a group which controls, such person and (y) does not, directly or
indirectly, own on percent (1%) or more of any class of securities of such
person.
(b) During the term of his employment with the Company and thereafter,
Young shall keep secret and retain in strictest confidence, and shall not use
for his benefit or the benefit of others, except in connection with the business
and affairs of the Company and its affiliates, all confidential matters relating
to the Business and to the Company and it affiliates learned by Young heretofore
or hereafter, directly or indirectly, from the company and its affiliates,
including any information concerning the business affairs, customers, clients,
sources of supply and customer lists of the Company and its affiliates (the
"Confidential Company Information") and shall not disclose them to anyone except
with the Company's express written consent provided that this obligation shall
not apply to Confidential Company Information which (1) is at the time of
receipt or thereafter becomes publicly known, through no act of Young in breach
of this Agreement or (2) is received from a third party not under an obligation
to keep such information confidential and without breach of this Agreement.
These rights are in addition to and without limitation to those rights and
remedies available under common law for protection of the types of such
confidential information which constitute "trade secrets" as construed under
controlling law.
(c) At all times after the term of his employment with the Company,
Young shall not, directly or indirectly, knowing solicit or encourage to leave
the employment of the Company or its affiliates, any employee of the Company or
any of its affiliates or hire any employee who has left the employment of the
Company or any of its affiliates within one year of the termination of such
employee's employment with the company or any of its affiliates.
(d) All memoranda, notes list. Records and other documents (and all
copies thereof) constituting Confidential Company Information or compiled by
Young or made available to Young concerning the Business or the Company or any
of its affiliates shall be the Company's property, shall be kept confidential in
accordance with the provisions of this Section 1, and shall be delivered to the
Company at any time on request.
(e) The parties hereto acknowledge and agree that any remedy at law for
any breach of the provisions of this Section 1 would be inadequate, and Young
hereby consent to the granting by any court of an injunction or other equitable
relief, without the necessity of actual monetary loss being proved, in order
that the breach or threatened breach of such provisions may be effectively
restrained.
2. Entire Agreement. This Agreement supersedes all prior discussions and
-----------------
agreements between the parties with respect to the subject matter hereof, and
contains the sole and entire agreement between the parties hereto with respect
to the subject matter hereof.
3. Waiver. Any term or condition of this Agreement may be waived at any
-------
time by the party that is entitled to the benefit thereof, but no such waiver
shall be effective unless set forth in a written instrument duly executed by or
on behalf of the party waiving such term or condition. No waiver by any party of
any term or condition of this agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or condition
of this Agreement on any future occasion. All remedies, either under this
Agreement or by applicable law or otherwise afforded, will be cumulative and not
alternative.
4. Amendment. This Agreement may be amended, supplemented or modified only
----------
by a written instrument duly executed by or on behalf of each party hereto.
5. No Assignment; Binding Effect. Neither this Agreement nor any right,
------------------------------
interest or obligation hereunder may be assigned by any party hereto without the
prior written consent of the other party hereto and any attempt to do so will be
void. Notwithstanding the preceding sentence, Buyer may assign any or all of its
rights, interests and obligations hereunder to any of it affiliates without the
consent of (but with notice to) Seller. This Agreement is binding upon, inures
to the benefit of and is enforceable by the parties hereto and their respective
successors and permitted assigns.
6. Headings. The headings used in this Agreement have been inserted for
---------
convenience of reference only and do not define or limit the provisions hereof.
7. Invalid Provisions. If any provision of this Agreement is held to be
-------------------
illegal, invalid or unenforceable under any present or future applicable law,
and if the rights of obligations of any party hereto under this Agreement will
not be materially and adversely affected thereby, (a) such provision will be
fully severable, (b) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
(c) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom and (d) in lieu of such illegal, invalid
or unenforceable provision, there will be added automatically as part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.
8. Governing Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the Philippines without regard to the conflict of
law principles thereof.
9. Counterparts. This Agreement may be executed in any number of
-------------
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by a duly authorized officer of each party hereto as of the date first written
above.
/s/ Xxxxxx X. Xxxxx, Xx.
---------------------------
Xxxxxx X. Xxxxx, Xx.
RFM CORPORATION
By: /s/ Xxxxxxxxxx Xxxxxx, Xx.
Name:
Title:
PSi TECHNOLOGIES, INC.
By:_/s/ Xxxxxx X. Xxxxx, Xx.
Name:
Title:
ML IBK POSITIONS, INC.
By: /s/ Xxx Xxxxxxx-Xxxxxxxx
Name:
Title:
ACKNOWLEDGEMENT
REPUBLIC OF THE PHILIPPINES)
MAKATI CITY ) S.S.
BEFORE ME, a Notary Public for and in Makati City, this 4/th/ day of
November, 1997, personally appeared:
Names Comm. Tax Cert. No./ Date/Place Issued
Passport No.
----------- ---------------------- ---------------------
Xxxxxxxxxx Xxxxxx, Xx. 1696648 1-10-97/Mandaluyong City
Xxxxxx X. Xxxxx EM275217 2-02-93/Manila
Xxx Xxxxxxx-Xxxxxxxx 5151937 2-04-97/Quezon City
all of whom are known to me and by me known to be the same persons who executed
the foregoing Non-competition Agreement and who severally acknowledged to me
that the same is their own free and voluntary act and deed and the free and
voluntary act and deed of the entities which they respectively represent.
WITNESS MY HAND AND SEAL on the date and place first above written.
Doc. No. _____
Page No. _____
Book No. _____
Series of 1997.
