Exhibit (f)
NONCOMPETE AGREEMENT
This NONCOMPETE AGREEMENT (the "Agreement") is made as of this 10th day of
October, 1997, by and among ADVANCED TECHNOLOGY MATERIALS, INC., a Delaware
corporation ("Buyer"), XXXX ACQUISITION CORPORATION, a Delaware corporation and
a wholly-owned subsidiary of Buyer ("Buyer Sub"), XXXXXXXX SEMICONDUCTOR
LABORATORIES, INC., an Arizona corporation (the "Company"), and XXXXXXX X.
XXXXXXXX, an individual ("Shareholder").
WHEREAS, Shareholder is a shareholder, officer and director of the Company;
WHEREAS, Buyer is acquiring the Company through the merger of Buyer Sub
into the Company (the "Merger"), as provided in the Agreement and Plan of Merger
dated May 17, 1997 as amended by a First Amendment thereto dated June 6, 1997
and a Second Amendment thereto dated July 30, 1997, among Buyer, Buyer Sub,
ATMI, Inc. (f/k/a ATMI Holdings, Inc.), and the Company (the "Merger
Agreement");
WHEREAS, Shareholder has voted all of his shares of Company stock owned by
Shareholder in favor of the Merger;
WHEREAS, Company is in the business (the "LSL Business") of the chemical
vapor deposition of silicon wafers using epitaxial processes to meet product
specifications furnished by the Company's customers for certain applications, as
conducted on the date of this Agreement and during the term of that certain
Consulting Agreement of even date herewith between the Company and Xxxxxxxx
Investments, Inc., an Arizona corporation wholly owned by Shareholder (the
"Consulting Agreement");
WHEREAS, Shareholder is knowledgeable of, and has well-established goodwill
in and relationships and contacts with, the LSL Business;
WHEREAS, Buyer expects to receive, as a result of the Merger, all of the
assets, goodwill, trademarks, service marks, trade names and fictitious business
names of Company;
WHEREAS, Buyer has required that Shareholder enter into this Agreement as a
condition to Buyer and the Buyer Sub consummating the Merger.
NOW, THEREFORE, in order to induce Buyer and Buyer Sub to consummate the
Merger, Shareholder hereby agrees as follows:
1. Non-competition.
a. Except as provided in the following sentence, Shareholder agrees
that, for a period of the later of five (5) years from the date of this
Agreement and three (3) years from
the expiration of the Consulting Agreement, Shareholder will not, directly or
indirectly, engage or participate in, prepare or set up, assist or have any
interest in any person, partnership, corporation, firm, association, or other
business organization, entity or enterprise (each, a "Person") (whether as an
employee, officer, director, partner, owner, consultant or otherwise) that
engage in any activities in competition with the LSL Business. Nothing herein
shall preclude Xxxxxxxx Semiconductor Research Laboratories, Inc. ("LSRL"), of
which Shareholder is the sole owner, from engaging in research and development,
or the chemical vapor deposition of silicon wafers using epitaxial processes;
provided, however, that the processing of wafers for LSRL's customers shall not
exceed 1000 wafers per specification without the prior written consent of the
Company, which consent shall not be unreasonably withheld.
b. Nothing in this Section shall be deemed to prohibit Shareholder
from pur chasing or owning equity securities of any issuer if those securities
constitute less than five percent (5%) of the class of equity securities and
that class is registered under the Securities Exchange Act of 1934.
2. Shareholder's Additional Covenants. Shareholder shall not, for a
period of five (5) years from the date of this Agreement, directly or
indirectly, hire, or induce or encourage any employee or consultant or group of
employees or consultants who are then employed or retained by Buyer or the
Company, to leave the employment of or terminate consultation with Buyer or the
Company or any of their subsidiaries, without the prior written consent of
Buyer.
3. Consideration. Shareholder understands and acknowledges that the
provisions of this Agreement are necessary to protect the legitimate business
interests of Buyer, Buyer Sub and the Company and are fair and reasonable for
numerous reasons, including Shareholder's receipt of shares of Buyer common
stock in connection with the Merger and the consideration provided in the
Consulting Agreement. In addition, as a result of Shareholder's prior position
with the Company, Shareholder has had, and will continue to have, access to
significant confidential, proprietary or trade secret information of the
Company, so that, if Shareholder were employed by a competitor of the Company,
there would be a substantial risk to the Company of Shareholder's use of its
confidential, proprietary or trade secret information.
4. Incorporation of Recitals. The recitals in this Agreement, including
the terms defined therein, are hereby incorporated as substantive terms and
provisions of this Agreement.
5. Injunctive Relief. Shareholder hereby acknowledges and agrees that it
would be impossible to compensate Buyer and the Company fully for damages
resulting from the breach or threatened breach of Sections 1 or 2 of this
Agreement and, accordingly, that Buyer and the Company shall be entitled to
temporary and permanent injunctive relief, including temporary restraining
orders, preliminary injunctions and permanent injunctions, to enforce such
Sections without the necessity of proving actual damages therewith. This
provision with respect to injunctive relief shall not, however, diminish Buyer's
right to claim and recover damages or enforce any other of its legal and/or
equitable rights or defenses.
6. Severable Provisions. The provisions of this Agreement are severable,
and if any one or more provisions may be determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions, and any partially
unenforceable provisions to the extent enforceable, shall nevertheless be
binding and enforceable.
7. Binding Agreement. This Agreement shall inure to the benefit of and
shall be binding upon Buyer, the Company and Shareholder, and their heirs,
successors and assigns, provided that Shareholder may not assign his rights or
obligations hereunder.
8. Descriptive Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
9. Entire Agreement. This Agreement constitutes the entire agreement and
supersedes all other prior agreements and understandings, both written and oral,
among the parties or any of them, with respect to the subject matter hereof. No
modification of this Agreement shall be valid unless made in writing and signed
by the parties hereto.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut without giving effect to
the provisions thereof relating to conflicts of law.
11. Notices. All notices, claims, demands and other communications
hereunder shall be in writing and shall be deemed given if delivered personally
or by telecopy or mailed by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
If to Shareholder, to:
Xxxxxxx X. Xxxxxxxx
000 Xxx Xxxxxxx Xxxxx Xxxx.
Xxxx, Xxxxxxxxxx 00000
Facsimile Number: (000)000-0000
with a copy to:
Polese, Pietzsch, Xxxxxxxx & Xxxxx, P.A.
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx; Xxxxxxx X. Xxxxxx
Facsimile Number: (000) 000-0000
If to Buyer or the Company, to:
Advanced Technology Materials, Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, VP
Facsimile Number: 000-000-0000
with a copy to:
Xxxxxxx & Xxxxxxx LLP
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile Number: 000-000-0000
12. Attorneys' Fees. In the event that any party shall bring an action in
connection with the performance, breach or interpretation hereof, then the
prevailing party in such action as determined by the court or other body having
jurisdiction shall be entitled to recover from the losing party in such action,
as determined by the court or ether body having jurisdiction, all reasonable
costs and expense of litigation or arbitration, including reasonable attorney's
fees, court costs, costs of investigation and other costs reasonably related to
such proceeding.
13. Enforcement. To the extent that any provision hereof is deemed
unenforceable by virtue of its scope in terms of area, business activity
prohibited and/or length of time, but could be enforceable by reducing the scope
of area, business activity prohibited or length of time, Consultant and the
Company agree that same shall be enforced to the fullest extent permissible
under the laws and public policies applied in the jurisdiction in which
enforcement is sought, and that the Company shall have the right, in its sole
discretion, to modify such invalid or unenforceable written provision to the
extent required to be valid and enforceable. Consultant agrees to be bound by
any promise or covenant imposing the maximum duty permitted by law which is
subsumed within the terms of any provision hereof, as though it were separately
articulated in and made a part of this Agreement, that may result from striking
or modifying any of the provisions hereof.
IN WITNESS WHEREOF, this Noncompete Agreement is executed as of this day
and year first above written.
SHAREHOLDER:
/s/ XXXXXXX X. XXXXXXXX
-------------------
Xxxxxxx X. Xxxxxxxx
BUYER: ADVANCED TECHNOLOGY
MATERIALS, INC., a Delaware corporation
By /s/ XXXXXX X. XXXXXXX
---------------------
Its Vice President, Chief Financial Officer,
Treasurer
----------------------------------------
BUYER SUB: XXXX ACQUISITION CORPORATION,
INC., a Delaware corporation
By /s/ XXXXXX X. XXXXXXX
---------------------
Its President, Treasurer, Secretary
-------------------------------
COMPANY: XXXXXXXX SEMICONDUCTOR
LABORATORIES, INC., an Arizona
corporation
By /s/ XXXXXXX X. XXXXXXXX
-----------------------
Its Prsident, CEO
-----------------------
