NON-COMPETE AGREEMENT
Exhibit
10.24
THIS
AGREEMENT dated as June 28, 2007
by and among PHOTONICS INTERNATIONAL, INC., a Minnesota corporation
(“Purchaser”), XXXX X. XXXX ("Jain"), APA OPTRONICS (INDIA) PRIVATE LIMITED
("APA India"), APA ENTERPRISES, INC., a Minnesota corporation ("Seller"), and
APA CABLES & NETWORKS, INC., a Minnesota corporation
("APACN"). Seller and APACN and their subsidiaries, collectively, are
referred to herein as "APA".
WITNESSETH:
WHEREAS,
Seller and Purchaser are
parties to that certain Stock Purchase Agreement dated June 28, 2007, pursuant
to which Purchaser will acquire all of the stock of APA India owned by Seller
(the "Purchase Agreement"); and
WHEREAS,
Jain is the sole owner of
Purchaser and has guaranteed the performance of Purchaser's obligations to
Seller; and
WHEREAS,
Jain, Purchaser and APA India,
directly and indirectly, will be financially benefited by the Purchase
Agreement; and
WHEREAS,
as a condition to closing the
Purchase Agreement and in order to satisfy a requirement set forth therein,
Seller is entitled to receive a covenant not to compete and other agreements
set
forth herein from Jain, Purchaser and APA India.
NOW,
THEREFORE, in consideration of the
premises and the mutual covenants hereinafter set forth, Purchaser, Seller,
Jain, and APA India agree as follows:
ARTICLE
I
NON-COMPETE
COVENANTS
1.1 In
order to satisfy a condition of the Purchase Agreement, during the two (2)
year
period commencing with the date of this Agreement, Jain, Purchaser, and APA
India shall not, directly or indirectly, sell or offer to sell any
telecommunications products, materials or components of a type offered by APACN,
as described on Schedule A, to any person or entity who will utilize or
deploy such products, materials, or components in the United States; provided,
however, that Jain, Purchaser and APA India may offer and sell such products,
materials, or components to APACN.
1.2 Within
five (5) business days after the date of execution of this Agreement, Jain
and
Purchaser shall (a) change the website address of APA India from
"xxxxxxxxxxxx.xxx" to "xxxxxxxxxxxx.xx.xxx"; or (b) shall prominently state
on
said website that the principal executive office of APA India is in
India.
1.3 During
the two-year restricted period referenced in Section 1.1 above, APA and APACN
shall not direct any selling efforts to India or engage in any selling activity
in India.
ARTICLE
II
NON-DISCLOSURE
COVENANT
During
and after the term of this
Agreement, Purchaser, Jain and APA India shall not communicate, divulge or
use,
any secret, confidential information, confidential customer list, or trade
secrets of APACN or Seller. This obligation shall apply with respect
to any such item until such item ceases to be secret or confidential, as
determined by APACN and Seller in their sole discretion.
ARTICLE
III
REMEDIES
In
the event of any actual or
threatened breach of the provisions of Articles I or II hereof, the injured
party shall be entitled to all rights and remedies available at law or in
equity, including without limitation the right to obtain damages for such breach
or non-adherence and the right to enjoin the party in breach or any person
or
entity in or threatening breach or non-adherence from commencing or continuing,
and to remedy, the activities which constitute such breach or
non-adherence. Should Jain, Purchaser or APA India breach any of the
provisions contained in the Purchase Agreement or related documents, Seller
shall be entitled to offset its damages against amounts due to Jain from Seller
as separation payment in connection with his termination as president/chief
executive officer of Seller.
ARTICLE
IV
CONSIDERATION
Jain,
Purchaser, APA India, Seller, and
APACN each acknowledge that it will be benefited by the Purchase Agreement
and
has received adequate consideration for its covenants contained
herein.
ARTICLE
V
MISCELLANEOUS
5.1 Entire
Agreement; Use of Terms. This Agreement, together with the
Purchase Agreement and the other agreements referenced in the Purchase
Agreement, contains the entire agreement among the parties, superseding in
all
respects any and all prior oral or written agreements or understandings
pertaining to the subject matter hereof and transactions contemplated hereby,
and shall be amended or modified only by a written instrument signed by all
of
the parties hereto; provided, however, that this Agreement does not supercede
or
replace the Nondisclosure and Noncompete Agreement dated May 5, 1999 between
Seller and Jain.
5.2 Waiver. No
waiver by any party of any condition, or of the breach of any term, covenant,
representation or warranty contained in this Agreement, whether by conduct
or
otherwise, in any one or more instances shall be deemed to be or construed
as a
further and continuing waiver of any such condition or breach or a waiver of
any
other condition or breach of any other term, covenant, representation, or
warranty of this Agreement, or the agreements and documents executed in
connection herewith.
5.3 Binding
Effect; Assignment. This Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by, the parties hereto and
their respective heirs, successors and assigns.
-2-
5.4 General. This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original, but all of which shall constitute one and the same
instrument. The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation
of
this Agreement. This Agreement shall be governed, enforced and
construed under the laws of the State of Minnesota, USA.
5.5 Joint
and Several Liability. All agreements, covenants,
representations, and warranties of Jain, Purchaser and APA India hereunder
shall
be joint and several obligations of Jain, Purchaser and APA India.
|
SELLER:
|
PURCHASER:
|
|||||
|
PHOTONICS
INTERNATIONAL, INC.
|
||||||
|
By:
|
/s/
Xxxxxx X. Xxxx
|
By:
|
/s/
Xxxx X. Xxxx
|
|||
|
Its: Chairman
|
Xxxx
X. Xxxx
|
|||||
|
Chief
Executive Officer
|
||||||
|
APA
OPTRONICS (INDIA)
|
||||||
|
PRIVATE
LIMITED
|
||||||
|
By:
|
/s/
Xxxx X. Xxxx
|
|||||
|
Xxxx
X. Xxxx
|
||||||
|
President
|
||||||
|
/s/
Xxxx X. Xxxx
|
||||||
|
Xxxx
X. Xxxx, as an individual
|
||||||
|
APA
CABLES & NETWORKS, INC
|
||||||
|
By:
|
/s/
Xxxxx X. Xxxxxxxx
|
|||||
|
Its:
|
President
|
|||||
-3-
SCHEDULE
A
1. The
following "passive" products:
OSP
optical fiber cabinets
Optical
fiber frames
Optical
fiber panels
Optical
fiber cable, connectors, assemblies and attenuators
Copper
cable, connectors and assemblies
2. Optical
branching components, as illustrated on the APACN website (xxx.xxxxx.xxx)
under "optical products"
-4-
