EXHIBIT 10.21
NONCOMPETITION AGREEMENT
AGREEMENT made as of May 31, 1998 between ADE Corporation, a
Massachusetts corporation ("ADE"), with offices at 00 Xxxxxx Xxx, Xxxxxxxx,
Xxxxxxxxxxxxx 00000, and Xxxxx Xxxxxxxxxxx ("Stockholder"), an individual
having his principal residence at the address set forth on the signature page
hereto.
W I T N E S S E T H
WHEREAS, Stockholder is a stockholder of Phase Shift Technology, Inc. an
Arizona corporation ("PST");
WHEREAS, ADE (which for purposes of this Agreement shall be deemed to
mean ADE Corporation and each of its subsidiaries (including PST as of the
Effective Date of the Merger) unless the context otherwise requires) is on
the date hereof combining with PST by means of the merger (the "Merger") of a
wholly owned subsidiary of ADE with and into PST, pursuant to an Agreement
and Plan of Merger dated March 8, 1998 (the "Merger Agreement");
WHEREAS, under the terms of the Merger Agreement, Stockholder in
connection with the Merger will receive substantial consideration in the form
of shares of the Common Stock of ADE.
WHEREAS, in order to insure for itself the benefits of the ownership of
PST and the operation of PST's business, ADE has as a condition of its
obligation to cause the Merger to be consummated, pay the consideration
contemplated by the Merger Agreement, and consummate the other transactions
contemplated by the Merger Agreement, required that certain of the persons
who immediately prior to the effectiveness of the Merger were stockholders of
PST agree not to engage in any activities competitive with the business of
ADE (including without limitation the business of PST) as provided herein;
NOW, THEREFORE, in order to induce ADE to cause the Merger to be
consummated, pay to Stockholder the consideration due to him as contemplated
by the Merger Agreement, and to consummate the other transactions
contemplated by the Merger Agreement, in consideration of the mutual
covenants and promises contained herein and in the Merger Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, ADE and Stockholder agree as follows (capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to them in the Merger Agreement):
1. For a period of five (5) years from the date hereof or, if later,
until two (2) years after the termination of Stockholder's employment with
ADE or any of its subsidiaries, Stockholder agrees that he will not, directly
or indirectly:
(a) engage in, conduct, manage, operate, control or own, whether
as a proprietor, partner, stockholder, joint venturer, investor, lender,
officer, director, employee, consultant, agent, participant or otherwise,
anywhere in the world, any business, venture or activity which(i) competes
with any business that ADE is engaged in or has been strategically planning
or developing prior to the termination of the Stockholder's employment with
ADE or (ii) likely would result in the unauthorized disclosure of
Confidential Information (as defined in an Employment Agreement of even date
between the Stockholder and Phase Shift Technology, Inc.).
(b) recruit, solicit or induce, or attempt to recruit, solicit or
induce, any employee of or consultant to ADE to terminate his or her
employment with, or otherwise cease his or her relationship with, ADE; or
(c) solicit, divert or take away, or attempt to solicit, divert or
take away, the business or patronage of any of the clients, customers or
accounts, or prospective clients, customers or accounts, of ADE.
The foregoing provisions of this Section 1 shall not be construed to limit
or prohibit Stockholder from holding, solely for investment, not more than
five percent (5%) of the outstanding stock of a publicly traded company.
2. Stockholder agrees that a breach of this Agreement could cause
irreparable damage and that in the event of such breach ADE shall have, in
addition to any and all remedies at law, the right to an injunction, specific
performance or other equitable relief to prevent the violation of
Stockholder's obligations hereunder.
3. No waiver by ADE of a breach of any portion of this Agreement shall
operate or be construed as a waiver of any other or subsequent breach hereof.
4. Each provision herein shall be treated as a separate and
independent clause, and the unenforceability of any one clause shall in no
way impair the enforceability of any of the other clauses herein. Moreover,
if one or more of the provisions contained in this Agreement shall for any
reason be held to be excessively broad as to scope, activity or subject so as
to be unenforceable at law, such provision or provisions shall be construed
by the appropriate judicial body by limiting and reducing it or them, so as
to be enforceable to the extent compatible with the applicable law as it
shall then appear.
5. This Agreement shall be governed by and construed in accordance
with the internal laws of the Commonwealth of Massachusetts.
6. This Agreement constitutes the entire agreement of the parties
hereto with respect to the subject matter hereof.
7. This Agreement shall be binding upon and shall inure to the benefit
of the successors and assigns of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Noncompetition
Agreement to be duly executed as of the day and year first above written.
ADE CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President and
Chief Financial Officer
/s/ Xxxxx Xxxxxxxxxxx
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Xxxxx Xxxxxxxxxxx
Address: c/o Phase Shift
Technology, Inc.
0000 Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
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