Exhibit 10.2
NONCOMPETITION AGREEMENT
This NONCOMPETITION AGREEMENT (this "Agreement") is made as of April 1,
2003, by and between Measurement Specialties, Inc., a New Jersey corporation
("Company") and Xxxxx Xxxxxxx (the "Executive").
RECITALS
WHEREAS, pursuant to an Agreement made and entered into as of the date
hereof, by and between Four Corners Capital Partners, LP ("Four Corners") and
the Company (the "Engagement Agreement"), Executive will perform the duties of
Chief Executive Officer of the Company; and
WHEREAS, the Executive is required to execute and deliver this Agreement to
the Company in connection with the Engagement Agreement.
NOW, THEREFORE in consideration of the foregoing recitals and other good
and valuable consideration (the receipt and sufficiency of which are irrevocably
acknowledged by each of the parties hereto), the parties agree as follows:
AGREEMENT
1. Definitions. Capitalized terms not expressly defined in this Agreement
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shall have the meanings ascribed to them in the Engagement Agreement.
2. Noncompetition. As an inducement and part of the consideration for
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Company to enter into the Engagement Agreement, Executive agrees as follows:
(a) During the Term of the Engagement Agreement (and any extensions
thereof) and for a period of one year following the termination thereof for any
reason, Executive will not directly or indirectly, work as an employee,
consultant, agent, principal, partner, manager, stockholder, officer, director
or in any other capacity, for any person or entity in the United States of
America who or which is directly competitive with the business of the Company
and which engages in the pressure and/or displacement sensor business similar to
the Company. The restriction in the preceding sentence shall not apply to (a)
ownership of less than five (5%) percent of the issued and outstanding capital
of stock of any corporation that is publicly traded and for which capital stock
selling and asking prices are published from time to time in The Wall Street
Journal, (b) work that Four Corners and/or Corporate Revitalization Partners,
LLC ("CRP") or their respective principals (other than Executive) perform in the
turnaround business, (c) Executive's ownership interest in Four Corners or CRP,
or (d) Executive's participation in sales and marketing activities on behalf of
both CRP and Four Corners.
(b) During the period of the Engagement Agreement (and any extensions
thereof) and for a period of two years following the termination thereof for any
reason, Executive will not directly or indirectly, either for himself, or on
behalf of any other business enterprise, directly or indirectly, under any
circumstance (i) solicit for employment any person who is employed by the
Company or any Subsidiaries during the period of Executive's service to the
Company, (ii) induce any person who is employed by the Company to terminate his
or her employment with the Company or any Subsidiaries, or (iii) call on,
solicit, or take away any person or entity who or which is a customer of the
Company or any Subsidiaries.
3. Confidentiality. Executives acknowledges that during the Term of the
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Engagement Agreement, he may have access to and be entrusted with confidential
information concerning the present and contemplated financial status and
activities of the Company, the disclosure of any of which confidential
information to competitors of the Company would be highly detrimental to the
interests of the Company. The Parties further acknowledge and agree that the
right to maintain the confidentiality of such information constitutes a
proprietary right that the Company is entitled to protect. Accordingly,
Executive covenants and agrees with the Company that he will not, both during
the Term and thereafter, disclose any of such confidential information to any
person, firm or corporation, nor shall he make use of such information, except
as required in the normal course of service hereunder or as required by law or
judicial process. For purposes of this Section 3, "confidential information"
shall not include any information which is generally available to the public or
which hereafter becomes generally available to the public other than as a result
of breach of the obligation under this Section 3.
4. Company Property.
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(a) Any patents, inventions, discoveries, applications or processes
designed, devised, planned, applied, created, discovered or invented by
Executive in the course of Executive's service under this Agreement and which
pertain to any aspect of the Company's or Subsidiaries' business shall be the
sole and absolute property of the Company, and Executive shall promptly report
the same to the Company and promptly execute any and all documents that may from
time to time reasonably be requested by the Company to assure the Company the
full and complete ownership thereof.
(b) All records, files, lists, including computer generated lists,
drawings, documents, equipment and similar items relating to the Company's
business which Executive shall prepare or receive from the Company shall remain
the Company's sole and exclusive property. Upon termination of this engagement,
Executive shall promptly return to the Company all property of the Company in
his possession. Executive further represents that he will not copy or cause to
be copied, print out or cause to be printed out any software, documents or other
materials originating with or belonging to the Company. Executive additionally
represents that, upon termination of the Engagement Agreement, his will not
retain in his possession any such software, documents or other materials.
5. Remedies. If Executive breaches the covenants set forth in Section 3 and
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4 of this Agreement, Company will be entitled to the following remedies:
(a) damages from Executive; and
(b) in addition to its right to damages and any other rights it may
have, injunctive or other equitable relief to restrain any breach or threatened
breach or otherwise to specifically enforce the provisions of Sections 2, 3 and
4 of this Agreement, it being agreed that money damages alone would be
inadequate to compensate Company and would be an inadequate remedy for such
breach.
6. Nature of Remedies. The rights and remedies of the Company under this
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Agreement are cumulative and not alternative.
7. Severability. Whenever possible each provision and term of this
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Agreement will be interpreted in a manner to be effective and valid but if any
provision or term of this Agreement is held to be prohibited or invalid, then
such provision or term will be ineffective only to the extent of such
prohibition or invalidity, without invalidating or affecting in any manner
whatsoever the
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remainder of such provision or term or the remaining provisions or terms of this
Agreement. If any of the covenants set forth in Sections 2, 3 and 4 of this
Agreement are held to be unreasonable, arbitrary, or against public policy, such
covenants will be considered divisible with respect to scope, time, and
geographic area, and in such lesser scope, time and geographic area, will be
effective, binding and enforceable against such.
8. Reasonability of Restrictions. Executive has carefully read and
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considered the provisions of Sections 2, 3 and 4 hereof and has had an
opportunity to review and discuss this Agreement with counsel of his choosing,
and, having done so, agrees and acknowledges that the terms, conditions,
agreements and restrictions set forth therein are fair and reasonable and are
reasonably required for the protection of the interests of Company, its
Subsidiaries and Affiliates, and their respective officers, directors,
shareholders, agents, representatives and other employees.
9. Successors, Assigns. Neither this Agreement, nor any of the Company's or
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Executive's respective rights, powers, duties or obligations hereunder, may be
assigned or delegated by the Company or the Executive. This Agreement shall be
binding upon and inure to the benefit of the Company and its successors.
Successors shall include, without limitation, parents or Subsidiaries, any
corporation or corporations acquiring, directly or indirectly, all or
substantially all of the assets or stock of the Company, whether by merger,
consolidation, purchase, lease or otherwise, and such successor shall thereafter
be deemed the "Company" hereof.
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10. Amendment; Waivers. No amendment, modification or discharge of this
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Agreement, and no waiver hereunder, shall be valid or binding unless set forth
in writing and duly executed by all of the parties hereto. Any such waiver
shall constitute a waiver only with respect to the specific matter described in
such writing and shall in no way impair the rights of the party granting such
waiver in any other respect or at any other time.
11. Counterparts. This Agreement may be executed in several counterparts,
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each of which shall be deemed an original and all of which shall together
constitute one and the same instrument.
12. Governing Law. This Agreement will be governed by the laws of the State
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of New Jersey without regard to conflicts of laws principles.
13. Jurisdiction; Service of Process. Any action or proceeding seeking to
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enforce any provision of, or based on any right arising out of, this Agreement
may be brought against any of the parties in the courts of the State of New
Jersey, County of Essex, or, if it has or can acquire jurisdiction, in the
United States District Court for the District of New Jersey, and each of the
parties consents to the jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any objection to
venue laid therein. Process in any action or proceeding referred to in the
preceding sentence may be served on any party anywhere in the world.
14. Entire Agreement. This Agreement, together with the Engagement
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Agreement, constitutes the entire agreement between the parties with respect to
the subject matter of this Agreement and supersedes all prior written and oral
agreements and understandings among the Company and Executive with respect to
the subject matter of this Agreement.
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first above written.
MEASUREMENT SPECIALTIES, INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer and
Secretary
/s/ Xxxxx Xxxxxxx
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XXXXX XXXXXXX
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