NON-COMPETITION AGREEMENT
Exhibit
10(rr)
THIS
NON-COMPETITION AGREEMENT (this “Agreement”), is made this 31st day
of
January, 2006, by and among Essex Electric Inc., a Delaware corporation
(“Seller”), The Alpine Group, Inc., a Delaware corporation (“Alpine”), Alpine
Holdco Inc., a Delaware corporation (“Holdco”), and Xxxxxx X. Xxxxxx (“Xxxxxx”)
(Essex, Alpine, Holdco and Xxxxxx shall be referred to individually as an
“Obligated Party” and collectively as the “Obligated Parties”) and Southwire
Company, a Delaware corporation (“Buyer”).
WITNESSETH
:
Buyer
and
Seller have entered into an Asset Purchase Agreement, dated as of September
30,
2005 (the “Asset Purchase Agreement”), pursuant to which Seller has,
concurrently herewith, sold to Buyer certain assets of Seller (collectively,
the
“Purchased Assets”) on the terms and subject to conditions set forth in the
Asset Purchase Agreement. Each Obligated Party has intimate knowledge of certain
confidential information and business practices of Seller, which, if exploited
by an Obligated Party in contravention of this Agreement, could seriously,
adversely and irreparably harm Buyer. It is a condition to the respective
obligations of Buyer and Seller under the Asset Purchase Agreement that the
parties hereto enter into a non-competition agreement in the form of this
Agreement. Each Obligated Party acknowledges that Buyer is concurrently herewith
paying substantial consideration for the Purchased Assets and that payment
of
such consideration will inure to its best interests and is, therefore, willing
to execute this Agreement and abide by and be bound by the covenants and
agreements contained herein.
NOW,
THEREFORE, in consideration of the premises herein contained, and for other
good
and valuable consideration, the receipt, adequacy and sufficiency of which
are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
As used
in this Agreement, the following terms shall have the following
meanings:
(a) “Confidential
Information”
means
information (in any form or media) concerning Seller’s customers, prospective
customers (including lists of customers and prospective customers), methods
of
operation, manufacturing processes, know-how, designs, custom software, business
plans, contracts, billing rates or procedures, suppliers, business methods,
management, employees, employee compensation, or any other business information
relating to Seller (whether constituting a trade secret or proprietary or
otherwise) that has material value to Seller and is treated by Seller as being
confidential; provided,
however,
that
Confidential Information shall not include any information that (i) is or
becomes generally available to the public other than as a result of disclosure
by any Obligated Party, (ii) is required to be disclosed by Law or by a court
or
Governmental Authority of competent jurisdiction, or (iii) was or becomes
available to an Obligated Party on a non-confidential basis and from a source
(other than a party to this Agreement or any of its Affiliates) that is not
known to the Obligated Party to be bound by a confidentiality
agreement.
(b) “Restricted
Business”
means
the manufacture and sale of electrical wire of the type manufactured and sold
by
Seller on the Closing Date.
(c) “Restricted
Customer”
means
(i) any Person to whom goods or services were sold or provided by Seller during
the 18-month period prior to the date hereof and (ii) any Person whom Seller
solicited for the purpose of selling or providing goods or services with respect
to the Business to such Person during the 18-month period prior to the date
hereof.
(d) “Restricted
Territory”
means
that geographical area consisting of the United States, Canada and
Mexico.
All
capitalized terms used herein which are not defined herein shall have the
meanings assigned to them in the Asset Purchase Agreement.
2. Covenants
of Each Obligated Party.
(a) Subject
to Section 2(b) hereof, each Obligated Party, severally and not jointly,
covenants and agrees that he or it, as the case may be, will not, directly
or
indirectly (whether through an Affiliate, a designated Person or otherwise),
during the period commencing on the date hereof and ending seven years
hereafter:
(i) engage
in
the Restricted Business in the Restricted Territory, or own, manage, operate,
join, control, assist or participate in directly or indirectly (including as
a
stockholder, partner, proprietor, consultant, independent contractor or lender),
any Person that is, directly or indirectly, engaged in the Restricted Business
in the Restricted Territory;
(ii) solicit
or call upon any Restricted Customer with a view to selling or providing to
such
Restricted Customer any product or service included in the Restricted
Business;
(iii) disclose
to
any Person that is engaged in the Restricted Business, or use or otherwise
exploit for its own benefit or for the benefit of any such Person, any
Confidential Information; or
(iv) except
for general solicitations not directed at Buyer or its employees, solicit or
seek to induce any employee of Buyer to terminate his or her employment with
Buyer and accept employment with an Obligated Party, with an Affiliate of an
Obligated Party, or with any other Person engaged in the Restricted Business
in
the Restricted Territory.
(b) Notwithstanding
anything else contained in this Agreement, (I) nothing in Section 2(a)(i) or
2(a)(ii) shall prohibit any Obligated Person from (i) owning less than 5% of
the
shares of capital stock of a publicly-held company engaged in the Restricted
Business in the Restricted Territory, (ii) owning a Person which is not
Principally Engaged (as such term is hereinafter defined) in the Restricted
Business in the Restricted Territory (a “Diversified Target”) (iii) collecting
accounts receivable of the Business that arose from pre-Closing operations,
or
(iv) protecting, preserving, disposing of or otherwise exploiting the Excluded
Assets and (II) if an Obligated Person acquires a Diversified Target, such
Obligated Person shall (i) initiate the sale, transfer or divestiture of the
portion of the Diversified Target which is engaged in the Restricted Business
in
the Restricted Territory no later than 90 days after the consummation of the
acquisition of the Diversified Target and (ii) sell, transfer or otherwise
divest itself of the portion of the Diversified Target which is engaged in
the
Restricted Business in the Restricted Territory not later than 18 months after
the consummation of the acquisition of the Diversified Target. As used herein,
the term “Principally Engaged” shall mean any Person (i) that derives at least
75% of its total income from the Restricted Business in the Restricted Territory
or (ii) whose total assets employed in the Restricted Business in the Restricted
Territory are 25% or more of such Person’s total consolidated
assets.
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(c) Each
Obligated Party, severally and not jointly, hereby acknowledges and agrees
that
the prohibitions against disclosure of Confidential Information provided herein
are in addition to, and not in lieu of, any rights or remedies that Buyer may
have available to it pursuant to the laws of any jurisdiction or at common
law
to prevent the disclosure of trade secrets or proprietary information, and
the
enforcement by Buyer of its rights and remedies pursuant to this Agreement
shall
not be construed as a waiver of any other rights or available remedies which
it
may possess at law or in equity absent this Agreement.
3. Availability
of Injunctive Relief.
Each
Obligated Party, severally and not jointly, acknowledges that its breach of
any
covenant contained in this Agreement will result in irreparable injury to Buyer
and that Buyer’s remedy at law for such a breach will be inadequate and will be
extremely difficult to calculate or determine. Accordingly, each Obligated
Party, severally and not jointly, agrees and consents that upon any such breach
Buyer shall, in addition to all other remedies available to Buyer at law or
in
equity, be entitled to seek appropriate equitable relief, including preliminary
and permanent injunctions (without the posting of any bond), to enjoin or
restrain any such breach.
4. Severability.
Should
any provision of this Agreement be determined to be invalid, illegal or
unenforceable, such invalid, illegal or unenforceable provision shall be deemed
to be severed herefrom and the validity, legality and enforceability of the
remaining provisions hereof shall not, in any way, be affected or impaired
thereby.
5. Integrated
Agreement and Consideration.
This
Agreement constitutes the entire agreement among the parties hereto with regard
to the subject matter hereof, and there are no agreements, understandings,
restrictions, warranties or representations relating to said subject matter
among the parties other than those set forth herein. Each Obligated Party,
severally and not jointly, hereby acknowledges that the acquisition by Buyer
from Seller of the Purchased Assets pursuant to the Asset Purchase Agreement
constitutes good and valuable consideration received by each Obligated Party
for
the covenants and agreements of each Obligated Party contained in this
Agreement, and such covenants and agreements are ancillary to the sale of the
Purchased Assets.
6. Third
Party Beneficiaries.
Nothing
in this Agreement, express or implied, is intended to confer upon any third
party any rights or remedies of any nature whatsoever under or by reason of
this
Agreement.
7. Notices.
(a) All
notices,
requests, demands and other communications hereunder shall be either (i)
delivered in person, (ii) sent by overnight courier service, or (iii) sent
by
facsimile and, in each case, addressed as follows:
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| If to any Obligated Party: | The Alpine Group, Inc.
Xxx
Xxxxxxxxxxx Xxxxx
Xxxxx
000
Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention:
Xxxxxxx Xxxxxxxxx, Esq.
Fax:
(000) 000-0000
|
|
| with copies to: | Xxxx X. Xxxxxxx, Esq.
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx 00000-0000
Fax:
(000) 000-0000
|
|
| If to Buyer: | Southwire
Company
Xxx
Xxxxxxxxx Xxxxx
Xxxxxxxxxx,
Xxxxxxx 00000
Fax:
(000) 000-0000
Attention:
General Counsel
|
|
| with copies to: | Xxxxxxx
X. Xxxx, Esq.
Xxxxxxxxxx
Xxxxxx & Xxxxxxx LLP
000
Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx,
Xxxxxxx 00000-0000
Fax:
(000) 000-0000
|
(b) All
notices, requests, instructions or documents given to any party in accordance
with this Section 7 shall be deemed to have been given on the date of receipt,
if delivered by hand or if sent by facsimile, or on the next day, if sent by
overnight courier.
(c) Any
party
hereto may change its address specified for notices herein by designating a
new
address by notice given in accordance with this Section 7.
8. Miscellaneous.
This
Agreement shall be governed by, and construed in accordance with the laws of
the
State of Delaware, without regard to such State’s choice of law rules, and shall
be binding upon and inure to the benefit of each party’s successors and assigns.
This Agreement may be executed in two or more counterparts, each of which will
constitute an original and all of which together shall constitute one and the
same agreement. All pronouns used herein shall be deemed to refer to the
masculine, feminine or neuter gender as the context requires.
[signatures
appear on next page]
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IN
WITNESS WHEREOF, each party hereto has executed this Agreement as of the date
first above written.
| |
/s/Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxxx |
|
|
|
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| ESSEX ELECTRIC INC. | ||
| |
|
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| By: | /s/ X. Xxxxxxxx Posner | |
|
X. Xxxxxxxx Posner |
||
| Executive Vice-President | ||
|
|
||
| THE ALPINE GROUP, INC. | ||
| |
|
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| By: | /s/ X. Xxxxxxxx Posner | |
|
X. Xxxxxxxx Posner |
||
| Executive Vice-President | ||
|
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||
| ALPINE HOLDCO INC. | ||
| |
|
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| By: | /s/ X. Xxxxxxxx Posner | |
|
X. Xxxxxxxx Posner |
||
| Executive Vice-President | ||
|
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||
| SOUTHWIRE COMPANY | ||
| |
|
|
| By: | /s/ Xxxx X. Xxxxxxx | |
|
Xxxx X. Xxxxxxx |
||
| President, Electrical Division | ||
[Non-Competition
Agreement Signature Page]
