Exhibit 2.14
NON-COMPETITION AGREEMENT
July 26, 2002
Parallax Power Components, LLC
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Gentlemen:
Reference is hereby made to the Amended and Restated Asset Purchase
Agreement, dated as of April 18, 2002 (the "APA"), between PARALLAX POWER
COMPONENTS, LLC, a Delaware limited liability company ("Buyer"), and AEROVOX
INCORPORATED, a Delaware corporation ("Seller"). All terms used but not
otherwise defined herein shall have the same meanings as used in the APA.
In order to induce Buyer to enter into and to consummate the
transactions contemplated by the APA, the undersigned: (i) Seller; (ii) Aerovox
de Mexico, S.A. de C.V., a subsidiary of Seller organized under the laws of
Mexico ("Aerovox Mexico"); (iii) Nueva Generacion Manufacturas, S.A. de C.V., a
corporation organized under the laws of Mexico ("NGM"), which is purchasing
certain assets and businesses of Seller and/or Aerovox Mexico relating to the
production facility located in Mexico City, Mexico pursuant to the terms of the
Aerovox Mexico Purchase Agreement (as defined below); and (iv) Xxxxxxx Xxxxxxx
Xxxxxxxx ("Xxxxxxx"), a director, officer and/or stockholder of each of Aerovox
Mexico and NGM (collectively, the "Non-Competition Parties"), hereby, represent
and warrant to, and agree with, Buyer, for themselves and their respective
successors and assigns, as follows:
1. For the period of three (3) years from and after the date hereof,
the Non-Competition Parties shall not engage, directly or indirectly (whether as
stockholder, partner, member, officer, director, employee, consultant, agent or
in any other capacity), in any business activity involving the sale and
distribution of the products set forth on Exhibit A annexed hereto and made a
part hereof (the "Products") to Universal Lighting Technologies, Inc. and/or its
subsidiaries, affiliates, successors and assigns.
2. Each of the parties to this Agreement hereby acknowledge and agree
that, in view of the nature of the subject matter of this Agreement, it would be
impracticable and extremely difficult to determine the actual damages to Buyer
in the event of a breach of this Agreement by any of the Non-Competition
Parties. Accordingly, in the event that any of the Non-Competition Parties shall
commit a breach, or threatens to commit a breach, of any of the provisions of
Section 1 hereof, then Buyer shall have the following rights and remedies
against the Non-Competition Parties:
(a) the right and remedy to have the provisions of this
Agreement specifically enforced by any court having equity jurisdiction, it
being acknowledged and agreed that any such breach or threatened breach will
cause irreparable injury to Buyer; and
(b) subject to the provisions of Section 5 hereof, the right
and remedy to require the Non-Competition Parties to account for and pay over to
Buyer all profits derived or received by any of the Non-Competition Parties as
the result of any transactions constituting a breach of any of the provisions of
Section 1 hereof, and the undersigned hereby agrees to account for and pay over
such profits to Buyer. Each of the rights and remedies set forth in this Section
2 shall be independent of the other, and shall be severally enforceable, and all
of such rights and remedies shall be in addition to, and not in lieu of, any
other rights and remedies available to Buyer at law or in equity.
3. In the event that any of the covenants set forth in Section 1
hereof, or any part thereof, is held to be unenforceable because of the duration
of such provision or the geographic area covered thereby, the undersigned hereby
agrees that the court making such determination shall have the power to reduce
the duration and/or area of such provision and, in its reduced form, said
provision shall then be enforceable. The invalidity or unenforceability of any
term or provision of this Agreement shall in no way impair or affect the balance
thereof, which shall remain in full force and effect.
4. This Agreement shall be construed, and the legal relations
between the parties hereto determined, in accordance with the internal laws of
the State of New York, without giving effect to principles of conflicts of law,
and the legal tribunals of the State of New York shall be the sole forum for
resolving any claim, action or demand arising out of or relating to this
Agreement.
5. The obligations of NGM and Xxxxxxx under this Agreement shall
be joint and several in nature so long as Xxxxxxx and/or any of his family
members or affiliates is an officer, director or stockholder of, or has any
pecuniary interest in, NGM; provided, however, that, if Xxxxxxx no longer has
any such affiliation or interest in NGM, then the obligations of NGM and Xxxxxxx
hereunder shall be and remain several but not joint. The obligations of Seller
and Aerovox Mexico hereunder shall in all events be joint and several in nature.
In no event shall: (i) Seller or Aerovox Mexico be liable to Buyer for any
breach of this Agreement on the part of NGM and/or Xxxxxxx; and (ii) NGM or
Xxxxxxx be liable to Buyer for any breach of this Agreement on the part of
Seller and/or Aerovox Mexico; and (iii) NGM or Xxxxxxx be liable to Buyer for
any breach of this Agreement on the part of the other (but such liability shall
continue on a several but not joint basis) if, at the time of such breach and
for so long as such breach shall continue, neither Xxxxxxx nor any of his family
members and/or affiliates is an officer, director or stockholder of, or has any
pecuniary interest in, NGM. Subject to the provisions of Section 6 below, this
Agreement shall be binding upon each of the Non-Competition Parties and their
respective successors and assigns and affiliates
6. The Non-Competition Parties are also parties to the Agreement
to Purchase certain Assets of Aerovox Incorporated and Aerovox de Mexico, dated
as of April 19, 2002 (the "Aerovox Mexico Purchase Agreement"), relating to the
sale and purchase of certain assets at the facility located in Mexico City,
Mexico. The parties hereby acknowledge that, in the event that the transactions
contemplated by the Aerovox Mexico Purchase Agreement shall be consummated after
the Closing under the APA, then this Agreement shall at all times be effective
as to, and binding in all respects upon, Seller and Aerovox Mexico; provided,
however, that this Agreement shall not be effective as to, or binding upon,
either NGM or Xxxxxxx until such time as the closing under the Aerovox Mexico
Purchase Agreement shall be consummated. In the event, however, that the Aerovox
Mexico Purchase Agreement shall be terminated for any reason at any time after
the Closing under the APA, then this Agreement shall be null and void and
without further force or effect as to NGM and Xxxxxxx only (but shall be
effective as to Seller and Aerovox Mexico) and neither of NGM or Xxxxxxx shall
have any obligations or liabilities hereunder.
Very truly yours
AEROVOX INCORPORATED
By: /s/ F. XXXXXX XXXX
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AEROVOX de MEXICO, S.A. de C.V.
By: /s/ XXXXXX X. XXXXXXX
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NUEVA GENERACION MANUFACTURAS,
S.A. de C.V.
By: /s/ XXXXXXX XXXXXXX A.
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Accepted and Agreed:
PARALLAX POWER COMPONENTS, LLC
By: /s/ XXXXXX X. XXXXXXX
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