EXHIBIT 4.100
NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
B E T W E E N:
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
- AND -
API ELECTRONICS GROUP INC.
Dated as of the 31st day of May, 2002
NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
THIS AGREEMENT made as of the 31st day of May, 2002 (the "Effective
Date").
B E T W E E N:
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
a businessman residing in the Province of Ontario
(hereinafter referred to as the "Filtran Principal")
OF THE FIRST PART
- and -
API ELECTRONICS GROUP INC.,
a corporation incorporated pursuant to the laws
of the Province of Ontario
(hereinafter referred to as "API")
OF THE SECOND PART
WHEREAS:
A. API has acquired as of the Effective Date (the "Acquisition") all of the
issued and outstanding shares of Filtran Inc., Canadian Dataplex Ltd. and
Tactron Communications (Canada) Limited (which, in turn, owns all of the issued
and outstanding shares of Filtran Limited) (each a "Filtran Entity" and
collectively, the "Filtran Group") from the Filtran Principal, Rose ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Trepannier, ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (each a "Vendor" and collectively,
the "Vendors") pursuant to the terms of a share purchase agreement among API,
the Vendors and the Filtran Group dated as of May 31, 2002 (the "Share Purchase
Agreement");
B. Prior to the completion of the Acquisition, in addition to being a
shareholder of the Filtran Group, the Principal was also a senior officer and a
director of each Filtran Entity (other than Filtran Inc. of which he is not a
director);
C. Subsequent to the Acquisition, the Filtran Principal has remained or will be
appointed as a director of each Filtran Entity;
D. API, each Filtran Entity and their respective affiliates and associates and
any combination thereof shall be referred to herein collectively as the "API
-2-
Group" and any reference to the API Group shall include a reference to API and
each Filtran Entity and their respective affiliates and associates;
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the sum
of Five Hundred Thousand Dollars ($500,000.00) now paid by API to the Filtran
Principal, the completion of the Acquisition, and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged by
each of the parties), the parties each agree as follows:
1. DEFINITIONS
The following words and phrases shall have the following meanings
respectively:
(a) "Agreement" means this non-competition and confidentiality
agreement, any written agreement amending or supplementing the
same, and any schedule hereto or thereto;
(b) "API" means API Electronics Group Inc.;
(c) "API Group" has the meaning ascribed to it in Recital D of this
Agreement;
(d) "Business Information" means all past, present and future,
(i) financial, business and personal data relating to
customers, clients, affiliates, subsidiaries, consultants
and employees of the API Group;
(ii) business and marketing plans, strategies and methods which
are not standard industry practice, or which are not
generally known in the industry; and
(iii) studies, customer lists, charts, plans, tables and
compilations of business and industrial information
acquired or prepared by or on behalf of the API Group;
(e) "Company Business" means the business presently, hereafter and
from time to time carried on by the API Group consisting of,
without limiting the generality of the foregoing, the production
and supply of electronic equipment;
(f) "Computer Software" means:
(i) all sets of statements or instructions, in either human
readable or machine readable form, that are expressed,
fixed, embodied or stored in any manner and that can be
used directly or indirectly in a computer ("Computer
Programs");
(ii) any report format, design or drawing produced by the
Computer Programs; and
-3-
(iii) all documentation, design specifications and charts, and
operating procedures relating to the Company Business which
support the Computer Programs;
(g) "Confidential Information" means material in the possession or
control of the API Group which is not generally available to or
used by others or the utility or value of which is not generally
known or recognized as standard practice, whether or not the
underlying details are in the public domain, all of which is of a
confidential and proprietary nature and includes, without
limitation, all Business Information, Computer Software, Know-How,
Names and Technology, whether patentable or not, which has been
acquired or developed or is hereafter acquired or developed by or
on behalf of the API Group from time to time and, specifically,
includes all such information that the Filtran Principal may have
obtained or became aware of during his involvement with the
Filtran Group;
(h) "Filtran Principal" means ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇;
(i) "Know-How" means any and all information, knowledge and experience
of a technical or commercial nature, including, without
limitation, unpatented inventions, manufacturing and trade
secrets, secret processes, current and accumulated experience,
specifications, methods, applications, designs, data, research
results, drawings, criteria, qualities, applications, prototypes,
models, formulae, computer programs, and all other information of
any nature or kind whatsoever relating or incidental to or
connected with the Company Business in which, as of the Effective
Date, any right, title or interest has been acquired by the API
Group, or any affiliate, consultant, licensee, contractor,
employee, agent, successor, assign, researcher, officer or
director of the API Group, or shall hereinafter be acquired by the
API Group or said person(s);
(j) "Licensed Technology" means all Patents and Trade-Marks (as those
terms are hereinafter defined), registered and unregistered trade
names and trade name applications, and registered industrial
designs and industrial design applications, in any manner
whatsoever relating to, incidental to or connected with the
Company Business in which, as at the Effective Date, any right,
title or interest has been acquired by the API Group, or any
affiliate, consultant, licensee, contractor, employee, agent,
successor, assign, researcher, officer or director of the API
Group, or shall hereinafter be acquired by the API Group or said
person(s);
(k) "Names" means the business styles "API", "Filtran", "Tractron",
"Dataplex" and any other business styles currently owned or used
by the API Group or hereafter acquired and any and every variation
of each;
(l) "Patents" means any patents and patent applications, including,
without limitation, reissues, renewals, extensions, divisions,
continuations and continuations-in-part, in any manner whatsoever
relating to, incidental to or connected with the Company Business
in which, as at the Effective Date, any
-4-
right, title or interest has been acquired by the API Group, or
any affiliate, consultant, licensee, contractor, employee, agent,
successor, assign, researcher, officer or director of the API
Group, or shall hereinafter be acquired by the API Group or said
person(s);
(m) "person" means an individual, sole proprietorship, partnership,
corporation, association, syndicate, organization, trust, joint
venture and foundation, or other legal entity whether incorporated
or unincorporated, as well as an individual in his capacity as
trustee, executor, administrator, or other legal representative;
(n) "Restricted Territory" means the World;
(o) "Technology" means all scientific and technical information or
material pertaining to any machine, appliance or process,
including specifications, proposals, models, designs, formulae,
test results and reports, analyses, simulation results, tables of
operating conditions, materials, components, industrial skills,
operating and testing procedures, shop practices, Know-How and
show-how including, without limitation, Licensed Technology;
(p) "Term" means the date which is five (5) years from the Effective
Date;
(q) "Trade-Marks" means any trade-marks (registered or unregistered)
and trade-▇▇▇▇ applications for registration in any manner
whatsoever relating to, incidental to or connected with the
Company Business in which, as of the Effective Date, any right,
title or interest has been acquired by the API Group, or any
affiliate, consultant, licensee, contractor, employee, agent,
successor, assign, researcher, officer or director of the API
Group, or shall hereinafter be acquired by the API Group or said
person(s);
2. NON-COMPETITION
The Filtran Principal hereby covenants and agrees with API and each
Filtran Entity that, during the Term, he shall not, without the prior written
consent of API, which consent may be unreasonably withheld in its sole and
absolute discretion, participate directly or indirectly, either individually or
with any person, in any way in a business which is substantially similar to the
Company Business or competitive with the Company Business anywhere within the
Restricted Territory whether:
(a) as a principal, partner or employee;
(b) in conjunction or association with or as an officer, director or
similar official of any incorporated or unincorporated entity
(including, without restricting the generality of the foregoing,
any corporation, partnership, joint venture, association,
syndicate or trust) engaged in any of the activities included as
part of the Company Business (each of which entities is
hereinafter referred to as the "Other Entity");
(c) as a consultant or advisor to or agent of any Other Entity;
-5-
(d) as a holder of shares in any Other Entity in such number which,
together with all shares in such Other Entity which are subject to
an agreement to, or which in fact, vote (or otherwise act) in
concert with the Filtran Principal, exercise the effective control
of any such Other Entity;
(e) by canvassing, soliciting or diverting or attempting to canvas,
solicit or divert, on behalf of himself or the Other Entity orders
for or from Company Business; or
(f) by providing, directly or indirectly, financial or other
assistance including, without limitation, by way of loan or
guarantee, to a business which is substantially similar to or
competitive with the Company Business.
3. NO USE OF CONFIDENTIAL INFORMATION
Except for the exclusive benefit of the API Group, the Filtran
Principal covenants and agrees with that he shall not, at any time, use or
directly or indirectly publish or otherwise disclose any of the Confidential
Information (whether or not conceived, originated, discovered or developed in
whole or in part by the Filtran Principal), it being expressly acknowledged and
agreed by the Filtran Principal that the Confidential Information consists of
unique and valuable assets that are the sole and exclusive property of API and
the API Group which shall be kept secret and strictly confidential at all times.
For the purposes of this Section 3, the Confidential Information shall not
include any information which is in the public domain as of the Effective Date
or becomes so through no fault of the Filtran Principal, and the covenants
herein shall survive the expiry or other termination of this Agreement.
4. OWNERSHIP OF CONFIDENTIAL INFORMATION
The Filtran Principal hereby assigns, transfers and conveys all of his
right, title and interest in and to the Confidential Information to API and
acknowledges and agrees, respectively, that, as among the Filtran Principal, API
and each Filtran Entity, API and each Filtran Entity are and shall remain the
sole and exclusive owners of all right, title and interest in and to the
Confidential Information. Any time and from time to time, upon the request and
expense of API, the Filtran Principal shall execute and deliver any and all
instruments, documents, papers and certificates, give evidence and do any and
all other acts, at no cost to the Filtran Principal, which, in the reasonable
opinion of the API Group, are or may be necessary or desirable to document such
transfer to enable the API Group, among other things, to file and prosecute
applications for and to acquire, maintain and enforce any and all proprietary
rights to the Confidential Information under Canadian or foreign law with
respect to any such Confidential Information or to obtain any extension,
validation, reissue, continuance or renewal of any such proprietary rights.
5. NON-SOLICITATION OF EMPLOYEES, CONSULTANTS, ETC.
The Filtran Principal covenants and agrees with API and each Filtran
Entity that, during the Term, he shall not:
(a) interfere with, knowingly entice or otherwise attempt to obtain
the withdrawal from the API Group of any of the API Group's
employees, consultants or any
-6-
other person retained or engaged by the API Group in any capacity
whatsoever; nor
(b) approach, interfere with, entice or solicit any customer or client
of the API Group or attempt to divert or entice any customer,
client or any person in the habit of dealing with the API Group
away from the API Group.
6. NO DEROGATORY REMARKS
The Filtran Principal covenants and agrees with API and each Filtran
Entity that he shall not make any derogatory remarks regarding the API Group or
any of its officers, directors or employees and will not take any act as a
result of which the relations between the API Group and its suppliers,
customers, clients, employees or others may be impaired or which act may
otherwise be detrimental to the business of the API Group as the same is now or
may hereafter be carried on by the API Group.
7. WAIVER OF DEFENCES
The Filtran Principal acknowledges, covenants and agrees with API that:
(a) the duration (the Term) and/or area (the Restricted Territory)
within which the restrictions set forth in Sections 2 and 5 shall
apply have been considered by the Filtran Principal and the
restraints and restrictions of and on the future activities of the
Filtran Principal set out herein are reasonable in the
circumstances given that the Company Business is international in
scope and that, accordingly, geographical limits are neither
appropriate nor sufficient;
(b) all restrictions in this Agreement are reasonable and valid and
all defences to the strict enforcement thereof by API and each
Filtran Entity are hereby waived by the Filtran Principal;
(c) a violation of any of the provisions of this Agreement will result
in immediate and irreparable harm and damage to API and the API
Group; and
(d) in the event of any violation, breach or threatened breach by the
Filtran Principal of any provision of this Agreement, API and each
Filtran Entity shall, in addition to any other right to relief, be
entitled to equitable relief by way of temporary or permanent
injunction and to such other relief as any court of competent
jurisdiction may deem just and proper.
8. SEVERABILITY
The covenants made in this Agreement are made by the Filtran Principal
acknowledging that he has specific knowledge of the affairs of the API Group and
that the API Group carries on and intends to carry on business throughout the
Restricted Territory. If any of the covenants herein contained shall be held
unreasonable, invalid or unenforceable by reason of the area, duration or type
or scope of service covered by the said covenant, or any other justifiable
reason, then the said covenant shall be given effect to such extent and in such
reduced form as may be
-7-
decided by an arbitrator appointed pursuant to the terms of this Agreement or by
any court of competent jurisdiction. The Filtran Principal hereby acknowledges
that all restrictions hereinbefore contained are reasonable and valid and all
defences to the strict enforcement of all or any portion thereof are hereby
waived. If any article, section or provision of this Agreement, or any portion
thereof, is deemed, determined or held to be unenforceable or invalid by an
arbitrator appointed hereunder or by a court of competent jurisdiction, that
unenforceability or invalidity shall not affect the remaining portions of this
Agreement and such unenforceable or invalid article, section, provision or
portion hereof shall be deemed to be severed from the remainder of this
Agreement.
9. IMPLEMENTATION OF THIS AGREEMENT
The parties hereto shall sign such further and other documents, cause
such meetings to be held, cause such resolutions to be passed and such by-laws
to be enacted, exercise their vote and do and perform (and cause to be done and
performed) such further and other acts or things as may be necessary or
desirable in order to give full effect to this Agreement and every part of it.
10. NOTICE AND COMMUNICATIONS
All notices, consents, approvals, statements, authorizations,
documents, or other communications (collectively referred to herein as
"Notice"), required or permitted to be given hereunder shall be in writing and
shall be delivered personally or by telecopier or mailed (with a return receipt
requested to provide proof of delivery), if mailed in Canada, by registered
mail, or if mailed in the United States of America, by certified mail, postage
prepaid, to the parties hereto at their respective addresses set forth
hereunder, namely:
(a) To the Filtran Principal at:
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
(b) To API at:
API Electronics Group Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
-8-
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
or at any such other address or addresses as may be given by any of them to the
other in writing from time to time. Such Notice, if mailed, shall be deemed to
have been given on the third (3rd) Business Day following such mailing, or, if
delivered personally or by telecopier, shall be deemed to have been given on the
day and at the time of personal delivery or telecopy transmission, if delivered
or transmitted prior to 5:00 p.m. on a Business Day, or if not prior to 5:00
p.m. on a Business Day, on the Business Day next following the day of delivery
or telecopy transmission, as the case may be; provided that if such Notice has
been mailed and if regular mail service is interrupted by strike or threatened
strike or other irregularity before the deemed receipt of such Notice as
aforesaid, then such Notice shall not be effective until and unless actually
delivered by mail or as otherwise provided herein.
11. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario and the federal laws of Canada applicable
therein (but without giving effect to any conflict of laws rule). All of the
parties to this Agreement hereby each attorn to the jurisdiction of the Courts
of the Province of Ontario.
12. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement among the parties with
respect to the matters herein and its execution has not been induced by, nor do
any of the parties rely upon or regard as material, any representations,
promises, agreements or statements whatsoever not incorporated herein and made a
part hereof. This Agreement shall not be amended, altered or qualified except by
a memorandum in writing signed by all the parties hereto.
13. ARBITRATION
The parties agree that all disputes and questions whatsoever which
shall arrive between any of the parties hereto touching this Agreement, or the
construction or application thereof or any clause or thing herein contained or
any account, valuation of division of assets, debts or liabilities to be made
hereunder or as to any act, deed or omission of any party or as to any other
matter in any way relating to the rights, duties or liabilities of any person
under this Agreement,
-9-
shall be governed by the arbitration provisions of the Share Purchase Agreement,
mutatis, mutandis.
14. WAIVER
No condoning, excusing or overlooking by or on behalf of any of the
parties hereto of any breach of any of the covenants, provisions, conditions,
restrictions or stipulations herein contained shall take effect or be binding
upon that party unless the same be expressed in writing under the authority of
that party and any waiver so given shall extend only to the particular breach so
waived and shall not limit or affect any rights with respect to any past,
present or future breach.
15. NUMBER AND GENDER
The necessary changes in gender required to make the provisions of this
Agreement apply to either corporations or individuals, males or females, shall
in all instances be assumed as though in each case fully expressed and, unless
the context clearly requires otherwise, the singular usage includes the plural
and vice-versa.
16. SECTION HEADINGS AND NUMBERS
Section headings and numbers are not considered a part of this
Agreement and are included solely for convenience of reference and shall not in
any way affect the construction or interpretation of this Agreement.
17. BINDING EFFECT
Subject to the provisions of this Agreement, this Agreement shall enure
to the benefit of and be binding upon the parties hereto and their respective
heirs, executors, administrators, successors and permitted assigns.
Notwithstanding the foregoing, or any other clause of this Agreement, the
provisions of Section 2 of this Agreement shall not be binding upon the Filtran
Principal during any period of time that the Purchaser is in default of its
obligations to the Filtran Principal under the Promissory Note.
18. FURTHER ASSURANCES
Each party hereto agrees from time to time, subsequent to the Effective
Date, to execute and deliver or cause to be executed and delivered to each of
the others of them such instruments or further assurances as may, in the
reasonable opinion of either of them, be necessary or desirable to give effect
to the provisions of this Agreement and to establish and protect the rights and
remedies created or intended to be created hereby.
19. REMEDIES CUMULATIVE
No remedy herein conferred upon or reserved in favour of any party
hereto shall exclude any other remedy herein or existing at law or in equity or
by statute, but each shall be cumulative and in addition to every other remedy
given hereunder or now or hereafter existing.
-10-
20. EXTENSION OF TIME RESTRICTIONS
The Filtran Principal is in breach of any of the restrictions herein
contained, the duration of a non-competition period set forth herein shall be
stayed until such breach shall be cured by such Filtran Principal and shall
recommence upon the date that the defaulting Filtran Principal ceases to be in
breach thereof, whether voluntary or by reason of a court order.
21. DEFINED TERMS
Each term that is used in this Agreement and is defined in the Share
Purchase Agreement has the meaning assigned to it in the Share Purchase
Agreement, unless the context expressly requires otherwise.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the Effective Date.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
------------------------------ ) -----------------------------------
Witness ) ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
)
)
)
) API ELECTRONICS GROUP INC.
)
)
) Per:
------------------------------
) Name:
) Title:
)
) I have authority to bind the Corporation