Exhibit 6(b)
NON-COMPETITION AGREEMENT
THIS AGREEMENT made February 12th, 1999.
BETWEEN:
XXXXX XXXXXXX, businessman, of 000 Xxxx Xxxxxx, Xxxxxxxx, XX
X0X 0X0;
("Voldeng")
AND:
NETSENTRY TECHNOLOGY INC., a company incorporated under the
laws of British Columbia, having an office at #2500 - 1055
Dunsmuir Street, XX Xxx 00000, Xxxxxxxxx, XX X0X 0X0
("NetSentry")
WHEREAS:
A. Xxxxxx Xxxx ("Ruiu") has developed a monitoring technology for use in the
telecommunications industry. Voldeng and Ruiu have agreed to mutually pursue the
research, manufacture development and marketing of the internet monitoring
technology.
B. NetSentry is a company owned wholly by Ruiu and Voldeng. NetSentry will
research, manufacture, develop and market the internet monitoring technology.
C. Pursuant to a share purchase agreement dated December 23, 1998 between Ruiu,
Voldeng and PowerTech, Inc (the "Share Purchase Agreement"), PowerTech, Inc.
agreed to purchase from Ruiu and Voldeng 100% of NetSentry's issued and
outstanding shares on the terms and subject to the conditions set out in the
Share Purchase Agreement;
D. The Share Purchase Agreement provides that Ruiu and Voldeng will, as a
condition of closing the purchase and sale of the shares, enter into a
non-competition agreement with NetSentry.
THIS AGREEMENT WITNESSES THAT in consideration of the completion of the
transaction contemplated by the Share Purchase Agreement and the sum of TEN
DOLLARS now paid by NetSentry to Voldeng and other good and valuable
consideration (the receipt and sufficiency of which is hereby acknowledged by
Voldeng), the parties hereby agree as follows:
1. INTERPRETATION
1.1 Defined Terms
For the purposes of this Agreement, unless the context otherwise requires, the
following terms will have the respective meanings set out below and grammatical
variations of such terms will have the corresponding meanings:
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(a) "Affiliate" has the meaning given to it in the Company Act
(British Columbia), except in the case of Voldeng means any
person or entity that directly, or indirectly through one or
more intermediaries is controlled by, or is under common
control with, Voldeng or any of his Associates;
(b) "Confidential Information" has the meaning given to it in
Section 2.5; and
(c) "Restricted Period" means the period equal to one year after
Voldeng ceases employment with NetSentry, PowerTech or one of
its affiliates.
Except as otherwise expressly provided herein, all capitalized terms made in
this Agreement without separate definition will have the definitions ascribed to
them in the Share Purchase Agreement, all of which definitions are incorporated
herein by reference.
1.2 Sections and Headings
The division of this Agreement into Sections and the insertion of headings are
for reference purposes only and will not affect the interpretation of this
Agreement. Unless otherwise indicated, any reference in this Agreement to a
Section refers to the specified Section of this Agreement.
1.3 Number, Gender and Persons
In this Agreement, words importing the singular number only will include the
plural and vice versa, words importing gender will include all genders and words
importing persons will include individuals, companies, corporations,
partnerships, associations, trusts, unincorporated organizations, governmental
bodies and other legal or business entities.
1.4 Entire Agreement
This Agreement together with the Share Purchase Agreement and all documents
delivered pursuant thereto constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether written or oral. There are
no conditions, covenants, agreements, representations, warranties or other
provisions, express or implied, collateral, statutory or otherwise, relating to
the subject matter hereof except as herein provided.
1.5 Time of Essence
Time will be of the essence of this Agreement.
1.6 Applicable Law
This Agreement will be construed, interpreted and enforced in accordance with,
and the respective rights and obligations of the parties will be governed by,
the laws of the Province of British Columbia and the federal laws of Canada
applicable in such province, and each party
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hereby irrevocably and unconditionally submits to the non-exclusive jurisdiction
of the courts of such province and all courts competent to hear appeals
therefrom.
1.7 Severability
If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect, such
determination will not impair or affect the validity, legality or enforceability
of the provisions hereof, and each provision is hereby declared to be separate,
severable and distinct.
1.8 Amendment and Waivers
No amendment or waiver of any provision of this Agreement will be binding on any
party unless consented to in writing by such party. No waiver of any provision
of this Agreement will constitute a waiver of any other provision, nor will any
waiver constitute a continuing waiver unless otherwise specified in such waiver.
2. NON-COMPETITION, NON-SOLICITATION, CONFIDENTIALITY
2.1 Non-Competition
During the Restricted Period, Voldeng will not directly or indirectly (through
any Affiliate, Associate or otherwise), individually or in partnership, or
jointly or in conjunction with any person as principal, agent, shareholder,
creditor, partner, director, officer, employee or in any other manner
whatsoever, carry on or be engaged in or be concerned with or interested in or
advise, lend money to, guarantee the debts or obligations of or permit his name
or any part thereof to be used or employed by any person engaged in or concerned
with or interested in any business which is the same as, similar to or
competitive with the business of NetSentry, or any part thereof, conducted
anywhere in the world as of the Closing Date. The foregoing restrictions will
not prevent Voldeng or any company or entity controlled by him from acquiring or
holding, as a passive investment, up to a total of 5% of the securities of any
class or series of any public company which is traded on a recognized stock
exchange.
2.2 Non-Solicitation
During the Restricted Period, Voldeng will not directly or indirectly (through
any Affiliate, Associate or otherwise):
(a) solicit or induce any person, who is or was an employee of
NetSentry, during the Restricted Period or the 6 month period
prior to the Closing Date, to discontinue his or her
relationship with NetSentry, or to accept employment by, or
enter into a business relationship with, any other entity or
person;
(b) hire or offer to hire any person, who is or was an employee of
NetSentry, during the Restricted Period or the 6 month period
prior to the Closing Date;
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(c) solicit, interfere with, induce or entice away any person or
entity that is or was a client, customer or agent of
NetSentry, during the Restricted Period or the 24 month period
prior to the Closing Date, to purchase, market or sell any
product or service which is directly or indirectly competitive
with the business of NetSentry; or
(d) in any manner persuade or attempt to persuade any such
customers referred to in (c) to discontinue a business
relationship with NetSentry, or to enter into a business
relationship with any other entity or person which would be
detrimental to or competitive with the business of NetSentry.
2.3 Prohibition on Use of Name
In addition to his obligations under this Agreement, Voldeng will not, during
the Restricted Period, or at any time thereafter, use, or authorize any other
person to use, directly or indirectly (through any Affiliate or Associate or
otherwise), any corporate, firm or business name, title, logo, trade-xxxx, or
trade name of NetSentry, or any other confusingly similar names, words or
phrases, or any variations or derivatives thereof, whether alone or in
conjunction with any other names or words, in connection with any business or
activity anywhere in the world in a manner which would be likely to create
confusion with any of the trade-marks, trade names, corporation, firm or
business names or titles or logos associated with NetSentry.
2.4 Acknowledgement of Worldwide Scope
Voldeng hereby acknowledges that the business of NetSentry is conducted
worldwide; that NetSentry's customers are located throughout the world; that,
accordingly, any geographical limitation on the scope of the foregoing covenants
would be materially detrimental to NetSentry; and that, by reason thereof,
Voldeng acknowledges that the scope of the foregoing covenants is reasonable and
necessary in order to protect the interests of NetSentry sought to be protected
hereby.
2.5 Confidential Information
Voldeng will not, during the Restricted Period, or at any time thereafter,
directly or indirectly (through any Affiliate or Associate or otherwise), use
for his own benefit or for the benefit of others, divulge, furnish or make
accessible to anyone other than NetSentry, or its directors and officers, any
knowledge or information which he has with respect to confidential or secret
documents, processes, algorithms, plans, projects, systems, devices or other
proprietary material relating to the business of NetSentry or its Affiliates, or
any other confidential or secret aspect of the business of NetSentry or its
Affiliates, including but not limited to all marketing plans, any lists or other
information with respect to suppliers and customers of NetSentry or its
Affiliates (collectively, the "Confidential Information") except:
(a) any Confidential Information which is generally available to
the public at the time of such disclosure or use, other than
by reason of a breach of this Agreement; or
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(b) to the extent that Confidential Information is required to be
disclosed by law or by any governmental or regulatory
authority having jurisdiction.
2.6 Return or Destruction of Confidential Documents
Upon the earlier of a request by NetSentry or the expiry of the Restricted
Period, Voldeng will forthwith return all Confidential Information to NetSentry,
or destroy all materials or documents containing any Confidential Information
and provide proof of such destruction to NetSentry.
3. REMEDIES
3.1 Acknowledgement of Necessity for Restrictions
Voldeng hereby acknowledges that, by reason of his unique knowledge of and
association with the Business, the covenants and agreements set out in this
Agreement are reasonable and valid having regard to the nature of the businesses
of NetSentry, the terms of the Share Purchase Agreement and this Agreement, and
the relationship of Voldeng to NetSentry and its customers, clients, suppliers,
employees and markets. Voldeng hereby waives all defences to the strict
enforcement of the covenants and agreements contained in Section 2 by NetSentry.
3.2 Injunctive Relief
Voldeng hereby acknowledges and agrees that a violation of any of the provisions
of Section 2 will result in immediate and irreparable harm to NetSentry. Voldeng
acknowledges and agrees that because the provisions of Section 2 relate to the
research, development, manufacture and marketing of highly specialized
technology, which is at the heart of NetSentry's business, breach of these
provisions cannot be compensated adequately by recovery of damages alone.
Voldeng agrees that in the event of any such violation or threatened violation,
NetSentry will, in addition to any other rights or remedies available at law, in
equity or otherwise, be entitled to temporary and permanent injunctive relief,
specific performance and other equitable remedies.
3.3 Extension of Limitation Period
Voldeng hereby acknowledges and agrees that a violation of the provisions of
Section 2 will result in irreparable harm to NetSentry whether or not NetSentry
pursues its remedies within six months of the violation or threatened violation.
3.4 Extension of Restricted Period
If Voldeng is in breach of the provisions of Section 2, the running of the
Restricted Period will be stayed for the duration of such breach and will
recommence upon the date he ceases to be in breach thereof, whether voluntarily,
by injunction or otherwise.
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4. MISCELLANEOUS
4.1 Notices
(a) Any notice or other communication required or permitted to be
given hereunder will be in writing and will be delivered in
person, transmitted by telecopy or similar means of recorded
electronic communication or sent by registered mail, charges
prepaid, addressed as follows:
If to Voldeng, to:
Name: Xxxxx Xxxxxxx
Address: 000 Xxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Fax No.: (000) 000-0000
If to NetSentry, to:
Name: NetSentry Technology Inc.
Address: #0000 - 0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Attention: President
Fax No.:
with an additional copy to:
Bull, Housser & Xxxxxx
Barristers and Solicitors
3000 - 0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: Xxxxx XxXxxx
Fax No. (000) 000-0000
(b) Any such notice or other communication will be deemed to have
been given and received on the day after it was delivered or
transmitted (or, if such day is not a Business Day, on the
following Business Day) or, if mailed, on the third Business
Day following the date of mailing; except that if at the time
of mailing or within three Business Days thereafter there is
or occurs a labour dispute or other event which might
reasonably be expected to disrupt the delivery of documents by
mail, any notice or other communication hereunder will be
delivered or transmitted by means of recorded electronic
communication as aforesaid.
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(c) Any party may at any time change its address for service from
time to time by giving notice to the other parties in
accordance with Section 4.1.
4.2 Successors and Assigns
This Agreement will enure to the benefit of NetSentry and its respective
successors and assigns and will be binding on Voldeng and his respective heirs
and legal personal representatives.
4.3 Assignment and Enforceability
This Agreement will be binding upon and enforceable by the parties and their
respective heirs, legal personal representatives, successors and permitted
assigns. No party may assign any of its rights or benefits under this Agreement,
or delegate any of its duties or obligations under this Agreement, to any person
without the prior written consent of the other parties hereto, except that
NetSentry may assign any of its rights hereunder at any time following the
Closing Date.
4.4 Counterparts
This Agreement may be executed in counterparts, each of which will constitute an
original and all of which taken together will constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on the day first above written.
SIGNED, SEALED AND DELIVERED by XXXXX XXXXXXX in )
the presence of: )
)
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/s/ XXXXXX X. XxXXXX ) /s/ XXXXX XXXXXXX (seal)
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Name ) XXXXX XXXXXXX
XXXXXX X. XxXXXX )
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Address )
BARRISTER & SOLICITOR )
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BULL, HOUSSER & XXXXXX )
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)
3000, 0000 XXXX XXXXXXX XXXXXX )
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)
XXXXXXXXX, XX X0X 0X0 )
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)
PHONE 000-0000 )
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)
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Occupation )
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THE CORPORATE SEAL Of NETSENTRY TECHNOLOGY INC. was )
hereunto affixed in the presence of: )
)
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/s/ XXXXX XXXXXXX ) c/s
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Authorized Signatory )
