NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT ("AGREEMENT") is entered into as of
this 8th day of September, 2004, by and between Del Global Technologies Corp., a
New York corporation (the "DEL GLOBAL"), and Xxxxxx X. Xxxxxxxxx ("XXXXXXXXX").
RECITALS
WHEREAS, Xxxxxx X. Xxxxxxxxx is the president and chief executive
officer of Del Global ;
WHEREAS, the Company is considering selling its various businesses
and, in connection therewith, the Company believes it is advisable to obtain an
agreement from Xxxxxxxxx that would restrict his ability to compete with the
businesses of the Company;
WHEREAS, in consideration for a payment of $225,000 by Del Global to
Xxxxxxxxx (the "Payment") upon the consummation of the sale by Del Global of the
businesses of both Del Medical Imaging Corp. and Villa Sistemi Medicali, S.p.A.
(collectively, the "Businesses"), Xxxxxxxxx has agreed to forego certain rights
to compete with Del Global, subject to the conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises above recited and
the obligations and agreements as hereinafter set forth, the parties hereto
agree as follows:
1. NON-COMPETE.
Del Global agrees to pay Xxxxxxxxx the Payment upon the consummation
of the sale of the Businesses provided that Xxxxxxxxx is employed by Del Global
at such time. In consideration for the Payment, Xxxxxxxxx covenants and agrees
that for a period of one year after the receipt by Xxxxxxxxx of the Payment, he
shall not:
(i) directly or indirectly, own, manage, operate, join,
control, finance or participate in the ownership, management, operation, control
or financing of, or be connected as an officer, director, employee, member,
partner, principal, agent, representative, consultant or otherwise with, or use
or permit his name to be used in connection with, any business or enterprise
which is engaged in any business that is competitive with any business or
enterprise in which Del Global or any affiliate of Del Global is engaged on the
date hereof other than the businesses which Del Medical Imaging Corp. is engaged
in, or had plans or intentions to engage in as of the date hereof. Xxxxxxxxx
acknowledges that Del Global operates on an international basis and that this
covenant cannot be limited to a service area in which Del Global and its
affiliates do business. The foregoing restrictions shall not be construed to
prohibit the ownership by Xxxxxxxxx of less than five percent (5%) of any class
of securities or equity interest of any corporation or other business entity
which is engaged in a competitive business having a class of securities
registered pursuant to the Securities Exchange Act of 1934, as amended, but
neither Xxxxxxxxx nor any group of persons including Xxxxxxxxx may in any way,
either directly or indirectly, manage or exercise control of any such
corporation or entity, guarantee any of its financial obligations, or otherwise
take any part in its business other than exercising its or his rights as a
stockholder; or
(ii) directly or indirectly, either for himself or any other
person (A) solicit or induce, or attempt to solicit or induce any employee of,
or sales agent, independent sales organization or other independent contractor
providing services to, Del Global or any affiliate of Del Global to leave the
employ of or to cease to provide services, in whole or in part to, Del Global or
any affiliate of Del Global, or to terminate or fail or refuse to renew or
renegotiate, any contract for services with Del Global or any affiliate of Del
Global, whether such contract is written or oral, (B) in any way interfere with
the relationship between Del Global or any affiliate of Del Global and an
employee of or sales agent, independent sales organization or independent
contractor of Del Global or any affiliate of Del Global, (C) employ, or
otherwise engage as an employee, sales agent, independent sales organization or
independent contractor, consultant or otherwise, any employee, sales agent,
independent sales organization or independent contractor of Del Global or any
affiliate of Del Global (this subsection (ii) shall not apply to any person
after 12 months have elapsed subsequent to the date on which such person's
employment by or association with Del Global has terminated), or (D) induce or
attempt to induce any customer, supplier, licensee, or business relation of Del
Global or any affiliate of Del Global, to cease doing business with Del Global
or such affiliate, or in any way interfere with the relationship between any
customer, supplier, licensee, or business relation of Del Global or any
affiliate of Del Global.
In the event of a breach by Xxxxxxxxx of any of the covenants set
forth above, the term of such covenant shall be extended by the period of the
duration of such breach.
2. REMEDIES.
If Xxxxxxxxx breaches any of the covenants set forth above, Del
Global will be entitled to the following remedies:
(a) Damages from Xxxxxxxxx, including the recovery of actual,
consequential, incidental, and other damages, as may be appropriate under the
circumstances, plus reasonable costs and attorney's fees incurred as a result of
the breach; and
(b) In addition to rights to damages and any other legal or
equitable remedies, to obtain injunctive or other equitable relief to restrain
any breach or threatened breach, and/or otherwise to specifically enforce the
provisions of Section 1 of this Agreement, it being agreed that money damages
alone would be inadequate to compensate Del Global and would be an inadequate
remedy for such breach. Xxxxxxxxx acknowledges and agrees that a violation of
any of the provisions of Section 1 of this Agreement would cause irreparable
injury to Del Global. Xxxxxxxxx and Del Global acknowledge and agree that any
legal requirement that Del Global show or establish the existence of irreparable
harm or injury shall be satisfied by the introduction and receipt of this
Agreement into evidence.
2
(c) The rights and remedies of the parties to this Agreement are
cumulative and not alternative.
3. SUCCESSORS AND ASSIGNS.
This Agreement will be binding upon the parties and will inure to
the benefit of Del Global and its respective successors and assigns, and
Xxxxxxxxx and his heirs, representatives and assigns. Neither party may assign
any of its rights under this Agreement without the prior written consent of the
other party. Notwithstanding the foregoing, Del Global may assign this Agreement
without Xxxxxxxxx'x consent in the event Del Global is merged or consolidated
into or with another corporation or in the event such corporation acquires all
or substantially all of Del Global 's assets.
4. WAIVER.
Neither the failure nor any delay by any party in exercising any
right, power, or privilege under this Agreement, and no single or partial
exercise of any such right, power, or privilege, will operate as: (i) a waiver
of such right, power, or privilege, or (ii) the exercise of any other right,
power, or privilege. To the maximum extent permitted by applicable law:
(a) No claim or right arising out of this Agreement can be
discharged by one party, in whole or in part, by a waiver or renunciation of the
claim or right unless in writing and signed by the other party;
(b) No waiver that may be given by a party will be applicable
except in the specific instance for which it is given; and
(c) No notice to or demand on one party will be deemed to be a
waiver of any obligation of such party, or of the right of the party giving such
notice or demand, to take further action without notice or demand as provided in
this Agreement.
5. GOVERNING LAW.
This Agreement will be governed by the laws of the State of New York
without regard to conflicts of laws principles. Any legal action, including an
original complaint or third party claim, by or in the right of any party to this
Agreement or any action arising under or related to this Agreement, including
but not limited to a claim for payment under this Agreement, and also including
any non-contract claim, shall be brought and maintained exclusively in a state
or federal court of competent subject matter jurisdiction in New York, New York
or its neighboring counties, and the parties hereby submit themselves to the
personal jurisdiction and venue of those courts for the purpose of any such
actions and hereby waive any defense related to personal jurisdiction, process,
or venue.
3
6. SEVERABILITY.
Whenever possible, each provision and term of this 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 by 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 remainder of such
provision or term or the remaining provisions or terms of this Agreement. If any
of the covenants set forth in Section 1 of this Agreement are held to be
unreasonable, arbitrary, or against public policy or otherwise unenforceable,
such covenant(s) will be considered divisible with respect to scope, time, and
geographic area, and in such lesser scope, time and geographic area, as will be
effective, binding and enforceable against Xxxxxxxxx.
7. SECTION HEADINGS, CONSTRUCTION.
The headings of Sections in this Agreement are provided for
convenience only and will not affect its construction or interpretation. All
words used in this Agreement will be construed to be of such gender or number as
the circumstances require.
8. NOTICES.
All notices and other communications hereunder shall be in writing
and shall be deemed given when delivered personally, one day after being
delivered to an overnight courier or when telecopied (with a confirmatory copy
sent by overnight courier) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
(a) if to Del Global:
Del Global Technologies Corp.
Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
(b) if to Xxxxxxxxx:
Xxxxxx X. Xxxxxxxxx
00 Xxxxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
9. AMENDMENTS.
This Agreement may not be modified or amended, except with the
mutual written consent of Del Global and Xxxxxxxxx.
10. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement among the parties
with respect to the specific subject matter hereof and supersedes all prior
written and oral agreements and understandings between Del Global and Xxxxxxxxx
with respect to the subject matter of this Agreement.
4
IN WITNESS WHEREOF, the parties hereto have caused this
Non-Competition Agreement to be executed and delivered as of the day and year
first above written.
Del Global Technologies Corp.
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Vice President,
Corporate and Organizational
Development
/s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxx
5
