Exhibit 6(a)
NON-COMPETITION AGREEMENT
THIS AGREEMENT made February 12th, 1999.
BETWEEN:
XXXXXX XXXX, businessman, of #0000 - 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, XX X0X 0X0
("Ruiu")
AND:
NETSENTRY TECHNOLOGY INC., a company incorporated under the
laws of British Columbia, having an office at #2500 - 1055
Dunsmuir Street, XX Xxx 00000, Xxxxxxxxx, XX X0X 0X0
("NetSentry")
WHEREAS:
A. Ruiu has developed a internet monitoring technology for use in the
telecommunications industry.
B. NetSentry is a company owned wholly by Ruiu and Xxxxx Xxxxxxx ("Voldeng").
NetSentry will research, manufacture, develop and market Ruiu's internet
monitoring technology.
C. Pursuant to a share purchase agreement dated December 23, 1998 between Ruiu,
Voldeng and PowerTech, Inc. (the "Share Purchase Agreement"), PowerTech, Inc.
agreed to purchase from Ruiu and Voldeng 100% of NetSentry's issued and
outstanding shares on the terms and subject to the conditions set out in the
Share Purchase Agreement;
D. The Share Purchase Agreement provides that Ruiu and Voldeng will, as a
condition of closing the purchase and sale of the shares, enter into a
non-competition agreement with NetSentry.
THIS AGREEMENT WITNESSES THAT in consideration of the completion of the
transaction contemplated by the Share Purchase Agreement and the sum of TEN
DOLLARS now paid by NetSentry to Ruiu and other good and valuable consideration
(the receipt and sufficiency of which is hereby acknowledged by Ruiu), the
parties hereby agree as follows:
1. INTERPRETATION
1.1 Defined Terms
For the purposes of this Agreement, unless the context otherwise requires, the
following terms will have the respective meanings set out below and grammatical
variations of such terms will have the corresponding meanings:
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through one or more intermediaries is controlled by, or is
under common control with, Ruiu or any of his Associates;
(b) "Confidential Information" has the meaning given to it in
Section 2.5; and
(c) "Restricted Period" means the period equal to one year after
Ruiu ceases employment with NetSentry, PowerTech or one of its
affiliates.
Except as otherwise expressly provided herein, all capitalized terms made in
this Agreement without separate definition will have the definitions ascribed to
them in the Share Purchase Agreement, all of which definitions are incorporated
herein by reference.
1.2 Sections and Headings
The division of this Agreement into Sections and the insertion of headings are
for reference purposes only and will not affect the interpretation of this
Agreement. Unless otherwise indicated, any reference in this Agreement to a
Section refers to the specified Section of this Agreement.
1.3 Number, Gender and Persons
In this Agreement, words importing the singular number only will include the
plural and vice versa, words importing gender will include all genders and words
importing persons will include individuals, companies, corporations,
partnerships, associations, trusts, unincorporated organizations, governmental
bodies and other legal or business entities.
1.4 Entire Agreement
This Agreement together with the Share Purchase Agreement and all documents
delivered pursuant thereto constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether written or oral. There are
no conditions, covenants, agreements, representations, warranties or other
provisions, express or implied, collateral, statutory or otherwise, relating to
the subject matter hereof except as herein provided.
1.5 Time of Essence
Time will be of the essence of this Agreement.
1.6 Applicable Law
This Agreement will be construed, interpreted and enforced in accordance with,
and the respective rights and obligations of the parties will be governed by,
the laws of the Province of British Columbia and the federal laws of Canada
applicable in such province, and each party hereby irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the courts of such
province and all courts competent to hear appeals therefrom.
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1.7 Severability
If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect, such
determination will not impair or affect the validity, legality or enforceability
of the provisions hereof, and each provision is hereby declared to be separate,
severable and distinct.
1.8 Amendment and Waivers
No amendment or waiver of any provision of this Agreement will be binding on any
party unless consented to in writing by such party. No waiver of any provision
of this Agreement will constitute a waiver of any other provision, nor will any
waiver constitute a continuing waiver unless otherwise specified in such waiver.
2. NON-COMPETITION, NON-SOLICITATION, CONFIDENTIALITY
2.1 Non-Competition
During the Restricted Period, Ruiu will not directly or indirectly (through any
Affiliate, Associate or otherwise), individually or in partnership, or jointly
or in conjunction with any person as principal, agent, shareholder, creditor,
partner, director, officer, employee or in any other manner whatsoever, carry on
or be engaged in or be concerned with or interested in or advise, lend money to,
guarantee the debts or obligations of or permit his name or any part thereof to
be used or employed by any person engaged in or concerned with or interested in
any business which is the same as, similar to or competitive with the business
of NetSentry, or any part thereof, conducted anywhere in the world as of the
Closing Date. The foregoing restrictions will not prevent Ruiu or any company or
entity controlled by him from acquiring or holding, as a passive investment, up
to a total of 5% of the securities of any class or series of any public company
which is traded on a recognized stock exchange.
2.2 Non-Solicitation
During the Restricted Period, Ruiu will not directly or indirectly (through any
Affiliate, Associate or otherwise):
(a) solicit or induce any person, who is or was an employee of
NetSentry, during the Restricted Period or the 6 month period
prior to the Closing Date, to discontinue his or her
relationship with NetSentry, or to accept employment by, or
enter into a business relationship with, any other entity or
person;
(b) hire or offer to hire any person, who is or was an employee of
NetSentry, during the Restricted Period or the 6 month period
prior to the Closing Date;
(c) solicit, interfere with, induce or entice away any person or
entity that is or was a client, customer or agent of
NetSentry, during the Restricted Period or the 24 month period
prior to the Closing Date, to purchase, market or sell any
product or
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service which is directly or indirectly competitive with the
business of NetSentry; or
(d) in any manner persuade or attempt to persuade any such
customers referred to in (c) to discontinue a business
relationship with NetSentry, or to enter into a business
relationship with any other entity or person which would be
detrimental to or competitive with the business of NetSentry.
2.3 Prohibition on Use of Name
In addition to his obligations under this Agreement, Ruiu will not, during the
Restricted Period, or at any time thereafter, use, or authorize any other person
to use, directly or indirectly (through any Affiliate or Associate or
otherwise), any corporate, firm or business name, title, logo, trade-xxxx, or
trade name of NetSentry, or any other confusingly similar names, words or
phrases, or any variations or derivatives thereof, whether alone or in
conjunction with any other names or words, in connection with any business or
activity anywhere in the world in a manner which would be likely to create
confusion with any of the trade-marks, trade names, corporation, firm or
business names or titles or logos associated with NetSentry.
2.4 Acknowledgement of Worldwide Scope
Ruiu hereby acknowledges that the business of NetSentry is conducted worldwide;
that NetSentry's customers are located throughout the world; that, accordingly,
any geographical limitation on the scope of the foregoing covenants would be
materially detrimental to NetSentry; and that, by reason thereof, Ruiu
acknowledges that the scope of the foregoing covenants is reasonable and
necessary in order to protect the interests of NetSentry sought to be protected
hereby.
2.5 Confidential Information
Ruiu will not, during the Restricted Period, or at any time thereafter, directly
or indirectly (through any Affiliate or Associate or otherwise), use for his own
benefit or for the benefit of others, divulge, furnish or make accessible to
anyone other than NetSentry, or its directors and officers, any knowledge or
information which he has with respect to confidential or secret documents,
processes, algorithms, plans, projects, systems, devices or other proprietary
material relating to the business of NetSentry or its Affiliates, or any other
confidential or secret aspect of the business of NetSentry or its Affiliates,
including but not limited to all marketing plans, any lists or other information
with respect to suppliers and customers of NetSentry or its Affiliates
(collectively, the "Confidential Information") except:
(a) any Confidential Information which is generally available to
the public at the time of such disclosure or use, other than
by reason of a breach of this Agreement; or
(b) to the extent that Confidential Information is required to be
disclosed by law or by any governmental or regulatory
authority having jurisdiction.
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2.6 Return or Destruction of Confidential Documents
Upon the earlier of a request by NetSentry or the expiry of the Restricted
Period, Ruiu will forthwith return all Confidential Information to NetSentry, or
destroy all materials or documents containing any Confidential Information and
provide proof of such destruction to NetSentry.
3. REMEDIES
3.1 Acknowledgement of Necessity for Restrictions
Ruiu hereby acknowledges that, by reason of his unique knowledge of and
association with the Business, the covenants and agreements set out in this
Agreement are reasonable and valid having regard to the nature of the businesses
of NetSentry, the terms of the Share Purchase Agreement and this Agreement, and
the relationship of Ruiu to NetSentry and its customers, clients, suppliers,
employees and markets. Ruiu hereby waives all defences to the strict enforcement
of the covenants and agreements contained in Section 2 by NetSentry.
3.2 Injunctive Relief
Ruiu hereby acknowledges and agrees that a violation of any of the provisions of
Section 2 will result in immediate and irreparable harm to NetSentry. Ruiu
acknowledges and agrees that because the provisions of Section 2 relate to the
research, development, manufacture and marketing of highly specialized
technology, which is at the heart of NetSentry's business, breach of these
provisions cannot be compensated adequately by recovery of damages alone. Ruiu
agrees that in the event of any such violation or threatened violation,
NetSentry will, in addition to any other rights or remedies available at law, in
equity or otherwise, be entitled to temporary and permanent injunctive relief,
specific performance and other equitable remedies.
3.3 Extension of Limitation Period
Ruiu hereby acknowledges and agrees that a violation of the provisions of
Section 2 will result in irreparable harm to NetSentry whether or not NetSentry
pursues its remedies within six months of the violation or threatened violation.
3.4 Extension of Restricted Period
If Ruiu is in breach of the provisions of Section 2, the running of the
Restricted Period will be stayed for the duration of such breach and will
recommence upon the date he ceases to be in breach thereof, whether voluntarily,
by injunction or otherwise.
4. MISCELLANEOUS
4.1 Notices
(a) Any notice or other communication required or permitted to be
given hereunder will be in writing and will be delivered in
person, transmitted by telecopy or
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similar means of recorded electronic communication or sent by
registered mail, charges prepaid, addressed as follows:
If to Ruiu, to:
Name: Xxxxxx Xxxx
Address: #0000 - 000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Fax No.: (000) 000-0000
If to NetSentry, to:
Name: NetSentry Technology Inc.
Address: #0000 - 0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Attention: President
Fax No.:
with an additional copy to:
Bull, Housser & Xxxxxx
Barristers and Solicitors
3000 - 0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: Xxxxx XxXxxx
Fax No. (000) 000-0000
(b) Any such notice or other communication will be deemed to have
been given and received on the day after it was delivered or
transmitted (or, if such day is not a Business Day, on the
following Business Day) or, if mailed, on the third Business
Day following the date of mailing; except that if at the time
of mailing or within three Business Days thereafter there is
or occurs a labour dispute or other event which might
reasonably be expected to disrupt the delivery of documents by
mail, any notice or other communication hereunder will be
delivered or transmitted by means of recorded electronic
communication as aforesaid.
(c) Any party may at any time change its address for service from
time to time by giving notice to the other parties in
accordance with Section 4.1.
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4.2 Successors and Assigns
This Agreement will enure to the benefit of NetSentry and its respective
successors and assigns and will be binding on Ruiu and his respective heirs and
legal personal representatives.
4.3 Assignment and Enforceability
This Agreement will be binding upon and enforceable by the parties and their
respective heirs, legal personal representatives, successors and permitted
assigns. No party may assign any of its rights or benefits under this Agreement,
or delegate any of its duties or obligations under this Agreement, to any person
without the prior written consent of the other parties hereto, except that
NetSentry may assign any of its rights hereunder at any time following the
Closing Date.
4.4 Counterparts
This Agreement may be executed in counterparts, each of which will constitute an
original and all of which taken together will constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on the day first above written.
SIGNED, SEALED AND DELIVERED by XXXXXX XXXX in the )
presence of: )
)
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/s/ XXXXXX X. XxXXXX ) /s/ XXXXXX XXXX (seal)
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Name ) XXXXXX XXXX
XXXXXX X. XxXXXX )
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Address )
BARRISTER & SOLICITOR )
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BULL, HOUSSER & XXXXXX )
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)
3000, 0000 XXXX XXXXXXX XXXXXX )
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XXXXXXXXX, XX X0X 0X0 )
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PHONE 000-0000 )
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Occupation )
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THE CORPORATE SEAL Of NETSENTRY TECHNOLOGY INC. was )
hereunto affixed in the presence of: )
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/s/ XXXXXX XXXX ) c/s
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Authorized Signatory )
