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EXHIBIT 10.75
NONCOMPETITION AGREEMENT
This Noncompetition Agreement (the "Agreement") is entered into and
effective as of July 6, 1998 ("Effective Date") by and between CP CLARE
CORPORATION, a Massachusetts Corporation ("Clare") and XXXXX XXXXX ("Xxxxx")
with reference to the following facts.
RECITALS
A. Immediately prior to the Effective Date, Xxxxx was an approximately
10% shareholder and an officer of Micronix Integrated Systems, Inc.
("Micronix"), a California corporation.
B. On the Effective Date, Clare Micronix became a wholly owned
subsidiary of Clare by merger with a subsidiary of Clare (the "Transaction").
C. In order to protect the value of the business operations of Clare and
the goodwill of Micronix acquired by Clare in the Transaction, Clare desires,
and Xxxxx agrees to, the terms and conditions of this Agreement.
NOW THEREFORE, the parties agree as follows:
SECTION 1. DEFINED TERMS.
1.1 ENGAGE IN COMPETITIVE ACTIVITIES. For purposes of this Agreement
"Engage in Competitive Activities" shall mean:
(i) to engage in any aspect, directly or indirectly, of any
Competitive Activities;
(ii) to render any activities to any individual or entity engaged in
Competitive Activities, including without limitation, as an employee,
consultant, adviser or independent contractor; or
(iii) to become involved, interested in or affiliated with any
individual or entity engaged in Competitive Activities, in any capacity,
including, without limitation, as a partner, shareholder, joint venturer,
lender, guarantor, surety or principal.
1.2 COMPETITIVE ACTIVITIES. For purposes of this Agreement, "Competitive
Activities" shall mean activities substantially the same as any business or
activity conducted by Clare relating to its semiconductor and circuit products
groups during the time the obligations of Xxxxx under this Agreement are
applicable, including, without limitation, activities actively contemplated by
Clare, demonstrated by discussions by Clare in Board of Director meetings or
Executive Management Team meetings; provided, however, if the obligations of
Xxxxx are applicable after the termination of Xxxxx'x relationship with Clare,
Competitive Activities shall be limited to activities, including contemplated
activities, during the 12 month period prior to the date of termination.
1.3 SERVICE AREA. For purposes of this Agreement, "Service Area" shall
mean the United States of America.
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SECTION 2. CONSIDERATION.
Xxxxx acknowledges and agrees that this Agreement is a condition of
Clare's payment of the purchase price for the acquisition of Micronix in the
Transaction.
SECTION 3. NONCOMPETITION AFTER EFFECTIVE DATE.
During the three-year period after the Effective Date, Xxxxx shall not
Engage in Competitive Activities within the Service Area, except as an employee
of or contractor to Clare.
SECTION 4. NONCOMPETITION AFTER TERMINATION.
If Xxxxx'x employment is terminated by Clare or if Xxxxx resigns from
employment with Clare, in either case for any reason, Xxxxx shall not Engage in
Competitive Activities within the Service Area during the period ending on the
later of the three year period following the Effective Date as set forth in
Section 3 or one year after the date of termination.
SECTION 5. OWNERSHIP OF SECURITIES.
Notwithstanding anything to the contrary in this Agreement,(Error!
Bookmark not defined.)(Error! Bookmark not defined.)(Error! Bookmark not
defined.), this Agreement shall not prohibit Xxxxx from owning, directly or
indirectly, solely as an investment, securities of any entity Engaged in
Competitive Activities which are traded on any national securities exchange or
listed on the National Association of Securities Dealers Automated Quotation
System so long as (i) Xxxxx is not a controlling party, or a member of a group
which controls the entity Engaged in Competitive Activities, and (ii) Xxxxx does
not, directly or indirectly, own five percent or more of any class of securities
of such entity.
SECTION 6. REMEDIES AND INJUNCTIVE RELIEF.
The parties agree that any breach of this Agreement would cause
irreparable injury to Clare which cannot be adequately compensated in monetary
damages. Therefore, Clare shall have, in addition to (and not in lieu of) other
rights and remedies available, the right to have the provisions of this
Agreement specifically enforced by any court of competent jurisdiction by way of
an injunction or other legal equitable relief. Injunctive relief shall be
available pursuant to Section 526 of the California Code of Civil Procedure and
Section 3422 of the California Civil Code (as either section may from time to
time be amended or renumerated) in addition to any other rights and remedies
Clare may have.
SECTION 7. SEVERABILITY
It is understood and agreed by the parties that the provisions of this
Agreement are reasonable and valid as to time, geographic area, scope of
business and in all other respects, and that such provisions are properly
required for the adequate protection of the business of Clare. If any court of
competent jurisdiction or arbitration panel shall refuse to enforce any or all
of the restrictions because the time, commencement date, geographic area, or
scope of business is deemed unreasonable, it is expressly understood and agreed
that this Agreement shall not be void, but that for the purpose of such
proceeding and in such jurisdiction, the restrictions contained in this
Agreement shall be deemed to be reduced only to the extent necessary to permit
enforcement of this Agreement.
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SECTION 8. MISCELLANEOUS PROVISIONS
8.1 GOVERNING LAW. This Agreement shall be construed in accordance with,
and governed by, the internal laws of the State of California, without regard to
principles of conflicts of laws.
8.2 WAIVER, MODIFICATION AND AMENDMENT. No amendment of, supplement to
or waiver of any obligations under this Agreement will be enforceable or
admissible unless set forth in a writing signed by both parties. No delay or
failure to require performance of any provision of this Agreement shall
constitute a waiver of that provision as to that or any other instance. Any
waiver granted shall apply solely to the specific instance expressly stated.
8.3 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between Clare and Xxxxx regarding the specific subject matter of this Agreement,
and supersedes any prior understandings, agreements, or representations by or
between the parties, written or oral, to the extent they relate in any way to
the subject matter of this Agreement.
8.4 NOTICES. All notices, consents, requests, demands or other
communications to or upon the respective parties shall be in writing and shall
be effective for all purposes upon receipt, by (i) personal delivery, (ii)
delivery by messenger, express or air courier or similar courier, or (iii)
delivery by United States first class mail, postage prepaid. Either party may
change its address by written notice to the other in the manner set forth above.
Receipt of communications by United States mail will be sufficiently evidenced
by return receipt. Other forms of delivery and transmittal shall be sufficiently
evidenced by a written or printed record of receipt.
8.5 ASSIGNMENT. Neither party may assign any of its rights or
obligations under this Agreement without the prior written consent of the other
party. This Agreement shall be binding on and inure to the benefit of the
successors and permitted assigns of the parties.
8.6 THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall be
construed to give any person other than the express parties to this Agreement,
and their respective successors and permitted assigns, any benefits, rights or
remedies.
8.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.8 CONSTRUCTION OF AGREEMENT. The parties mutually acknowledge that
they and their attorneys have participated in the preparation and negotiation of
this Agreement. In cases of uncertainty this Agreement shall be construed
without regard to which of the parties caused the uncertainty to exist.
8.9 ATTORNEYS' FEES. If any legal action or other proceeding is
commenced which is related to this Agreement, the losing party shall pay the
prevailing party's actual attorneys' fees and
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expenses incurred in the preparation for, conduct of or appeal or
enforcement of judgment from the proceeding. The phrase "prevailing party" shall
mean the party who is determined in the proceeding to have prevailed or who
prevails by dismissal, default or otherwise.
IN WITNESS WHEREOF, this Agreement has been entered into as of the
Effective Date.
CP CLARE CORPORATION
By: ______________________________ ___________________________
Xxxxx Xxxxx
Its: _____________________________
Address: Address:
00 Xxxxxx Xxxx Xxxxx 24871 Crown Royal
Beverly, MA 01915-1048 Laguna Niguel, CA
