EXHIBIT 10.34
NON-COMPETE AGREEMENT
THIS AGREEMENT (this "Agreement"), dated as of the 7th day of August,
2000, is between HITACHI MAXELL, LTD., a Japanese corporation with its principal
place of business at 0-00-00, Xxxxxxx, Xxxxxxx-Xx, Xxxxx, 000-0000, Xxxxx
("Seller"), and XXXXXX XXXXXXXXXX TECHNOLOGIES, INC., a Delaware corporation
having its principal place of business at 10,000 Xxxxxx Xxxxx, Xxxxxxxx, Xxx
Xxxx 00000 ("WGL").
RECITALS:
WHEREAS, Seller is the sole shareholder of Battery Engineering, Inc., a
Massachusetts corporation ("BEI"); and
WHEREAS, Seller, WGL and BEI are parties to a certain Stock Purchase
Agreement, dated as of July 31, 2000 (the "Purchase Agreement"), pursuant to
which WGL is purchasing all of the issued and outstanding shares of stock of BEI
from Seller; and
WHEREAS, BEI is engaged in the business of the design, manufacture and
sale of batteries for certain commercial applications (the "Business") and WGL
intends to operate the Business of BEI on and after the closing of the
transactions contemplated by the Purchase Agreement; and
WHEREAS, during the course of many years, Seller has had access to, and
has gained knowledge with respect to, the Business of BEI; and
WHEREAS, as a condition to closing the Purchase Agreement, WGL has
required Seller to agree not to compete with WGL or BEI.
NOW, THEREFORE, Seller and WGL agree as follows:
1. NON-COMPETITION.
1.1 For the period beginning on the date of this Agreement and
ending two (2) years thereafter (the "Covenant Period"), Seller agrees that it
will not:
(a) directly or indirectly, for its own account or as an agent,
employee, officer, director, trustee, consultant or member, partner, shareholder
or other equity holder of any person or entity (other than as an owner of 1% or
less of any class of publicly traded securities) or member of any firm or
otherwise, anywhere in the United States, (A) sell or distribute or attempt to
sell, distribute or market any product that uses oxyhalide technology, carbon
monofluoride chemistry or rechargeable sulfur dioxide
(collectively, "Restricted Products") provided, however, that Restricted
Products shall not include any products that use thionyl chloride technology
where the upper temperature performance of such products does not exceed
99(degree)C, or (B) call on or solicit business for any Restricted Products from
any current customer of BEI or any customer who has purchased products or
services from BEI within six (6) months prior to the date of this Agreement; or
(b) employ or solicit the employment of (x) any person who was
employed by WGL on the date of this Agreement or within six (6) months prior to
such date or (y) any person who was employed by BEI on the date of this
Agreement or within six (6) months prior to such date.
1.2 The restrictions in Section 1.1(a) above shall not apply to: (i)
any product that, as of the effective date of this Stockholders Agreement,
Seller manufactures or distributes or is currently in the process of developing
for manufacture and distribution; or (ii) any customer of Seller or any
individual or entity with which Hitachi Maxell was, as of the effective date of
this Agreement, negotiating a business relationship.
1.3 Seller acknowledges and agrees that the restrictions in this
Section 1 are reasonable, legitimate and fair to Seller in light of the WGL's
purchase of the shares of BEI from Seller pursuant to the Purchase Agreement.
1.4 The Seller agrees that the consideration it has received
pursuant to the Purchase Agreement is full and adequate compensation for its
covenant in this Section 1.
2. CONFIDENTIAL INFORMATION.
(a) Seller has had access to, and has gained knowledge with
respect to, all aspects of the Business, and BEI's trade secrets, financial
results and information, processes and techniques, methods of doing businesses
and information concerning customers and suppliers, and other valuable and
confidential information, which is not generally known to the public (the
"Confidential Information"). The parties acknowledge that unauthorized
disclosure or misuse of the Confidential Information may cause irreparable
damage to BEI and the Business subsequent to the closing of the transactions
contemplated by the Purchase Agreement. The parties also agree that covenants by
Seller not to make unauthorized disclosures of the Confidential Information are
essential to the growth and stability of the Business. Accordingly, Seller
agrees that it shall not use or disclose any Confidential Information obtained
by it in the course of its past connection with the Business, and Seller further
agrees that it shall not use or disclose any Confidential Information obtained
by it in the course of any future connection it has with BEI or the Business.
3. EQUITABLE REMEDIES. Seller (a) acknowledges that the failure of Seller
to comply with any provision of Section 1 or 2 of this Agreement will cause WGL
irrevocable harm and that a remedy at law for such failure would be an
inadequate
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remedy for WGL and (b) consents to WGL's obtaining from a court having
jurisdiction specific performance, an injunction, a restraining order or any
other equitable relief in order to enforce such compliance. WGL's right to
obtain such equitable relief shall be in addition to any other remedy to which
WGL is entitled under applicable law (including, but not limited to monetary
damages).
4. ATTORNEYS' FEES. If any action at law or equity is necessary to enforce
or interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorneys' fees, costs, and necessary disbursements in addition to
any other relief to which he or it may be entitled.
5. GOVERNING LAW. This Agreement shall be construed under and in
accordance with the laws of the State of New York.
6. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors, and assigns where permitted
by this Agreement.
7. SEVERABILITY. In case any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal, or unenforceable provision had never been
contained herein.
8. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter of this Agreement, and
supersedes any prior understandings or written or oral agreements between the
parties with respect to the subject matter of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date first above written.
XXXXXX XXXXXXXXXX TECHNOLOGIES, INC.
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx, President
HITACHI MAXELL, LTD.
By: /s/ XXXXXXXX XXXXX
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Xxxxxxxx Xxxxx, Board Director
Under Power of Attorney
dated June 21, 2000
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