NON-COMPETITION AND NON-SOLICITATION AGREEMENT
This
Non-Competition and Non-Solicitation Agreement (this “Agreement”) is
between the employee identified in the signature block below (“Employee”) and UDC,
Inc., a New Jersey corporation with a place of business at 000 Xxxxxxxx Xxxx.,
Xxxxx, Xxx Xxxxxx 00000, together with its affiliates (collectively, “UDC”).
WHEREAS, Employee acknowledges
and agrees that UDC is engaged in the highly competitive business of research,
development and commercialization of organic light emitting diode (OLED)
technologies and materials, which business activity is worldwide in scope;
and
WHEREAS, in the course of
performing his or her duties for UDC, Employee has been and will continue to be
given access to confidential, proprietary and trade secret information and
materials of UDC, which items are highly sensitive and important to the business
of UDC; and
WHEREAS, this Agreement is
designed to protect UDC from the unauthorized disclosure or use of such
information and materials, as well as to protect UDC from unfair competition in
the OLED marketplace; and
WHEREAS, as consideration for
entering into this Agreement, UDC has offered Employee incentive compensation in
the form of immediately vesting shares of Universal Display Corporation common
stock.
NOW, THEREFORE, in accordance
with the foregoing, UDC and Employee, intending to be legally bound, hereby
agree as follows:
1. Non-Competition
with UDC for a Limited Period. Employee agrees
that during the period of Employee’s employment by UDC, and for a period of one
(1) year after separation of employment for any reason, Employee shall not,
directly or indirectly, become employed by or provide any services, whether as
an independent contractor or otherwise, for any person or entity where such
person or entity will directly or indirectly compete with UDC, or which are
intended to directly or indirectly compete with UDC, if any of Employee’s
duties, responsibilities or activities for or with such other person or entity
would involve Employee’s research, development or commercialization of OLED
technologies or materials, and such duties, responsibilities or activities would
be the same as or substantially similar to those that Employee conducts, has
conducted, or will conduct in the future on behalf of UDC.
2. Non-Solicitation
of UDC Employees. Employee agrees
that during the period of Employee’s employment by UDC, and for a period of two
(2) years after separation of employment for any reason, Employee shall not,
directly or indirectly: (a) employ or retain any employee of UDC, whether as an
independent contractor, consultant or otherwise; or (b) solicit, contact or
communicate with, or encourage or assist any other person or entity to solicit,
contact or communicate with, any employee of UDC for the purpose of causing such
employee to leave the employ of UDC, or to become employed or retained by
another person or entity, whether as an independent contractor, consultant or
otherwise. The term “employees” in this paragraph means any persons
who were employed by UDC as of the date of Employee’s separation of employment,
or within the one (1) year period prior to such date.
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3. Non-Solicitation
of UDC Customers. Employee agrees
that during the period of Employee’s employment by UDC, and for a period of two
(2) years after separation of employment for any reason, Employee shall not,
directly or indirectly solicit, contact or communicate with any of UDC’s private
or public sector licensees, suppliers, customers, development partners,
evaluation partners or joint venturers (collectively “business clients”) with
whom Employee had a business relationship or business dealings during his or her
employment at UDC for the purpose of encouraging or causing such business
client(s) to reduce, modify or cease doing business with UDC, or to utilize the
technology, materials or services of any other person or entity in lieu of those
of UDC. The term “business client” in this paragraph means any
business client of UDC as of the date of Employee’s separation of employment, or
within the one (1) year period prior to such date.
4. Disclosure,
Notice and Notification Obligations. In order to
ensure compliance with the terms of this Agreement, Employee acknowledges and
agrees that if Employee seeks employment or an independent contractor or
consulting relationship with another person or entity within one (1) year
following his or her separation of employment for any reason, Employee shall,
prior to accepting an oral or written offer of employment, disclose to the
person or entity the obligations and restrictions described in paragraphs one
through three of this Agreement. Employee acknowledges, agrees and
authorizes UDC to advise any person or entity with whom Employee accepts or may
accept employment, or with whom Employee enters or may enter into an independent
contractor or consulting relationship, of the existence and terms of Employee’s
obligations and restrictions under this Agreement.
5. Injunction
for Breach; Enforcement; Attorneys’ Fees. In the event of a
breach or threatened breach of any provision of this Agreement, UDC shall be
entitled to seek from a court of competent jurisdiction a temporary restraining
order, preliminary injunction, permanent injunction, and/or any other form of
equitable relief without the requirement of posting a bond or other
security. These rights and remedies shall be in addition to any other
legal and equitable rights and remedies, including compensatory and punitive
damages, UDC may have for any breach or threatened breach of this Agreement, for
any violation of UDC’s rights or Employee’s duties or obligations to UDC under
this Agreement or otherwise, or for any other violation of law. It is
further agreed that in any judicial proceeding brought by UDC for a breach or
threatened breach of this Agreement, the prevailing party shall be entitled to
be reimbursed by the other party for its reasonable attorneys’ fees, expenses
and costs.
6. Limited
Enforcement by UDC; Partial Invalidity; Severability. UDC shall have
the option and right to enforce any provision in this Agreement to a lesser or
more limited extent than the Agreement provides, upon written notice to
Employee. The restrictions in this Agreement shall not apply if
Employee has the express, prior written consent of UDC’s President to engage in
the prohibited activity. If any provision of this Agreement is
declared to be void, invalid, illegal, unreasonable or overbroad by a court of
competent jurisdiction, it is the parties’ intent that such provision be
interpreted or modified in a manner so as to provide the greatest degree of
protection for UDC. Furthermore, any provision that a court of
competent jurisdiction deems void, invalid, illegal, unreasonable or overbroad
shall be deleted from this Agreement, and the remaining portions of this
Agreement shall remain in full force and effect.
7. Miscellaneous. This Agreement
may not be modified unless agreed to in writing by Employee and
UDC. Any waiver of a breach of any provision of this Agreement shall
not operate as or be construed to be a waiver of any other breach of that
provision, or of a breach of any other provision of this
Agreement. This is the entire agreement of the parties and supersedes
all prior and
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8. contemporaneous
agreements, understandings, and representations of the parties pertaining to the
subject matter set forth in this Agreement. The provisions of this
Agreement shall survive Employee’s separation of employment for any
reason. This Agreement shall be binding upon Employee’s heirs,
executors, administrators and other legal representatives. This
agreement shall inure to the benefit of UDC’s successors and
assigns. Employee agrees that the validity, interpretation,
construction, performance, breach and obligations of this Agreement will be
governed by the internal laws of New Jersey and not by the laws of any other
state, territory or country. The parties agree that in the event of a
dispute involving or controversy arising out of this Agreement, any lawsuit or
action brought by either shall be commenced and maintained in a court of
competent jurisdiction in the State of New Jersey.
EMPLOYEE
ACKNOWLEDGES THAT HE OR SHE UNDERSTANDS, AGREES TO, AND ACCEPTS ALL OF THE TERMS
OF THIS AGREEMENT.
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Agreed
and Accepted by Employee:
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/s/
Xxxxxx X. Xxxxx
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1/26/07
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(Signature
of Employee)
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Date
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Xxxxxx
X. Xxxxx
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(Employee’s
Name)
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(Employee’s
Address)
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Acknowledgment
of receipt and acceptance by:
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By: /s/
Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx
X. Xxxxxxxxxx
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Title: CFO
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Date: 2/23/07
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