Exhibit 2.4
NON-COMPETITION AGREEMENT
This agreement, entered into as of the 30th day of April, 1998, is by and
between Unique Mobility, Inc. ("Unique") and Xxxxxxx X. Xxxxxxxx ("Employee").
RECITALS
A. Pursuant to a Share Exchange Agreement (the "Agreement") dated as of
April 30, 1998 by and among Unique, Franklin Manufacturing Company, a Missouri
corporation ("Franklin"), and the shareholders of Franklin, Unique is acquiring
all of the shares of the capital stock of Franklin.
B. Employee is a key employee of Unique and the principal shareholder of
Franklin. Unique desires to protect its investment in its business by providing
certain limited restrictions on Employee's business activities.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
1. Protection of Trade Secrets and Confidential Information.
(a) Definition of "Confidential Information." "Confidential Information"
means all nonpublic information concerning or arising from Unique's business,
including particularly but not by way of limitation trade secrets used,
developed or acquired by Unique in connection with its business; information
concerning the manner and details of Unique's operation, organization and
management; financial information and/or documents and nonpublic policies,
procedures and other printed or written material generated or used in connection
with Unique's business; Unique's business plans and strategies; the identities
of Unique's customers and the specific individual customer representatives with
whom Unique works; the details of Unique's relationship with such customers and
customer representatives; the identities of distributors, contractors and
vendors utilized in Unique's business; the details of Unique's relationship with
such distributors, contractors and vendors; the nature of fees and charges made
to Unique's customers; nonpublic forms, contracts and other documents used in
Unique's business; the nature and content of computer software used in Unique's
business, whether proprietary to Unique or used by Unique under license from a
third party; and all other information concerning Unique's concepts, prospects,
customers, employees, contractors, earnings, products, services, equipment,
systems, and/or prospective and executed contracts and other business
arrangements.
(b) Employee's Use of Confidential Information. Except in connection with
and in furtherance of Employee's work on Unique's behalf, Employee shall not,
without Unique's prior written consent, at any time, directly or indirectly,
use, disclose or otherwise communicate any Confidential Information to any
person or entity.
(c) Acknowledgments. Employee acknowledges that during the term of this
agreement, Employee will have access to Confidential Information, all of which
shall be made accessible to Employee only in strict confidence; that
unauthorized disclosure of Confidential Information will damage Unique's
business; that Confidential Information would be susceptible to immediate
competitive application by a competitor of Unique's; that Unique's business is
substantially dependent on access to and the continuing secrecy of Confidential
Information; that Confidential Information is unique to Unique and known only to
Employee, Unique and certain key employees and contractors of Unique; that
Unique shall at all times retain ownership and control of all Confidential
Information; and that the restrictions contained in this paragraph are
reasonable and necessary for the protection of Unique's business.
(d) Records Containing Confidential Information. All documents or other
records containing or reflecting Confidential Information ("Confidential
Documents") prepared by or provided to Employee are and shall remain Unique's
property. Except with Unique's prior written consent, Employee shall not copy or
use any Confidential Document for any purpose not relating directly to
Employee's work on Unique's behalf, or use, disclose or sell any Confidential
Document to any party other than Unique. Upon the termination of this agreement
or upon Unique's request, Employee shall immediately deliver to Unique or its
designee (and shall not keep in Employee's possession or deliver to anyone else)
all Confidential Documents and all other property belonging to Unique. This
paragraph shall not bar Employee from complying with any subpoena or court
order, provided that Employee shall at the earliest practicable date provide a
copy of the subpoena or court order to Unique's President.
(e) Third-Parties' Confidential Information. Employee acknowledges that
Unique has received and in the future will receive from third parties
confidential or proprietary information, and that Unique must maintain the
confidentiality of such information and use it only for proper purposes.
Employee shall not use or disclose any such information except as permitted by
Unique or the third party to whom the information belongs.
(f) Employee's Former Employers' Confidential Information. Employee shall
not, during Employee's employment with Unique, improperly use or disclose to
Unique any proprietary information or trade secrets belonging to any former
employer or any third party as to whom Employee owes a duty of nondisclosure.
2. Term. The term of this agreement is for a period of three years,
commencing on the date hereof and terminating on April 30, 2001.
3. Noncompetition.
(a) Covenants. During the term of this agreement, Employee shall not,
directly or indirectly, as an officer, director, employee, consultant, owner,
shareholder, adviser, joint venturer, or otherwise, compete with Unique within
the States of Colorado or Missouri (the "Protected Region"): (i) in the
manufacture of electronic controllers; or (ii) in any other line of business in
which Unique was engaged at any time during the term of this agreement; or (iii)
in any other line of business into which Unique, during the term of Employee's
employment, formed an intention to enter during the term of Employee's
obligation not to compete, and which Unique's Board has disclosed to Employee in
writing within ten days following the termination of this agreement. This
covenant shall not preclude Employee from owning less than 2% of the securities
of any competitor of Unique if such securities are publicly traded on a
nationally recognized stock exchange or over-the-counter market.
(b) Acknowledgments. Employee acknowledges that the foregoing geographic
restriction on competition is fair and reasonable, given the geographic scope of
Unique's business operations and the nature of Employee's position with Unique.
Employee also acknowledges that while employed by Unique Employee will have
access to information that would be valuable or useful to Unique's competitors,
and therefore acknowledges that the foregoing restrictions on Employee's future
employment and business activities are fair and reasonable. Employee
acknowledges and is prepared for the possibility that Employee's standard of
living may be reduced during the term of this agreement, and assumes and accepts
any risk associated with that possibility.
(c) Acknowledgments of Law. Employee acknowledges the following provisions
of Colorado Law, set forth in Colorado Revised Statutes 8-2-113(2):
Any covenant not to compete which restricts the right of any person to
receive compensation for performance of skilled or unskilled labor for any
employer shall be void, but this subsection (2) shall not apply to:
(a) Any contract for the purchase and sale of a business or the assets of a
business;
(b) Any contract for the protection of trade secrets;
(c) Any contract provision providing for the recovery of the expense of
educating and training an employee who has served an employer for a period of
less than two years;
(d) Executive and management personnel and officers and employees who
constitute professional staff to executive and management personnel.
Employee acknowledges that this agreement is a contract in recognition of
the transfer from Employee to Unique of his interest in Franklin under
8-2-113(2)(a); and that this agreement is intended to protect the Confidential
Information identified above under 8-2-113(2)(b); that this agreement is
intended to permit Unique to recover the expense of educating and training
Employee in the event that Employee serves Unique for a period of less than two
years, as contemplated by 8- 2-113(2)(c); and that Employee is an executive and
management employee or professional staff to executive or management personnel,
within the meaning of 8-2-113(2)(d).
4. Non-Solicitation. During the term of this agreement, Employee shall not,
without Unique's prior written consent, directly or indirectly:
(a) cause or attempt to cause any employee, agent or contractor of Unique
or any Unique affiliate, to terminate his or her employment, agency or
contractor relationship with Unique or any Unique affiliate; interfere or
attempt to interfere with the relationship between Unique and any employee,
contractor or agent of Unique; or hire or attempt to hire any employee, agent or
contractor of Unique or any Unique affiliate.
(b) solicit business from any customer or client served by Unique at any
point during the term of this agreement; or interfere or attempt to interfere
with any transaction, agreement or business relationship in which Unique or any
affiliate was involved at any point during the term of this agreement.
5. Inventions.
(a) Disclosure. Upon Unique's request, Employee shall promptly disclose to
Unique, in a manner specified by Unique in its sole discretion, all ideas,
processes, trademarks and service marks, inventions, discoveries, and
improvements to any of the foregoing, that Employee learns of, conceives,
develops or creates alone or with others during the term of this agreement
(whether or not conceived, developed or created during working hours) that
directly or indirectly arises from or relates to: (i) Unique's business; (ii)
work performed for Unique by Employee or any other Unique employee; (iii) the
use of Unique's property or time; or (iv) access to Unique's Confidential
Information and/or Confidential Documents.
(b) Assignment. Employee shall assign to Unique, without further
consideration, Employee's entire right to any concept, idea or invention
described in the preceding subparagraph, which shall be the sole and exclusive
property of Unique whether or not subject to patent, copyright, trademark or
trade secret protection under applicable law. Employee also acknowledges that
all original works of authorship which are made by Employee (solely or jointly
with others), within the scope of Employee's employment, and which are
protectable by copyright, are "works made for hire," as that term is defined in
the United States Copyright Act (17 U.S. C. 101). To the extent that any such
works, by operation of law, cannot be "works made for hire," Employee hereby
assigns to Unique all right, title, and interest in and to such works and to any
related copyrights.
(c) Additional Instruments. Employee shall promptly execute, acknowledge
and deliver to Unique all additional instruments or documents deemed at any time
by Unique in its sole discretion to be necessary to carry out the intentions of
this paragraph.
6. Survival. Employee's obligations under this agreement shall survive the
termination of Employee's employment and shall thereafter be enforceable whether
or not such termination is later claimed or found to be wrongful or to
constitute or result in a breach of any contract or of any other duty owed or
claimed to be owed by Unique to Employee.
7. Remedies. Employee acknowledges that upon a breach of any obligation
under this agreement, Unique will suffer immediate and irreparable harm and
damage for which money alone cannot fully compensate Unique. Employee therefore
agrees that upon such breach or threat of imminent breach of any obligation
under this agreement, Unique shall be entitled to, and Employee shall not oppose
entry of, a temporary restraining order, preliminary injunction, permanent
injunction or other injunctive relief, without posting any bond or other
security, barring Employee from violating any such provision. This paragraph
shall not be construed as an election of any remedy, or as a waiver of any right
available to Unique under this agreement or the law, including the right to seek
damages from Employee for a breach of any provision of this agreement, nor shall
this paragraph be construed to limit the rights or remedies available under
Colorado law for any violation of any provision of this agreement.
8. Miscellaneous. (a) Heirs and Assigns. This Agreement shall be binding
upon Employee's heirs, executors, administrators or other legal representatives,
shall inure to the benefit of Unique, its successors or assigns, and shall be
freely assignable by Unique, but not by Employee; (b) Governing Law. This
agreement and all other disputes or issues arising from or relating in any way
to Unique's relationship with Employee, shall be governed by the laws of the
State of Colorado, irrespective of the choice of law rules of any state. (c)
Severability. If any court of competent jurisdiction declares any provision of
this agreement invalid or unenforceable, the remainder of the agreement shall
remain fully enforceable. To the extent that any court concludes that any
provision of this agreement is void or voidable, the court shall reform such
provision(s) to render the provision(s) enforceable, but only to the extent
absolutely necessary to render the provision(s) enforceable and only in view of
the parties' express desire that Unique be protected to the greatest extent
possible under applicable law from improper competition and/or the misuse or
disclosure of trade secrets, Confidential Documents and/or Confidential
Information. (d) Disputes. Any action arising from or relating any way to this
agreement, or otherwise arising from or relating to Employee's's employment with
Unique, shall be tried only in the state or federal courts situated in Denver,
Colorado. The parties consent to jurisdiction and venue in those courts to the
greatest extent possible under law. The prevailing party in any action to
enforce any provision of this agreement shall recover all costs and attorneys'
fees incurred in connection with the action.
EXECUTED this 30th day of April 1998.
Sign:/s/Xxxxxxx Xxxxxxxx
__________________
Print name:Xxxxxxx Xxxxxxxx
_________________
UNIQUE MOBILITY, INC.
By:/s/Xxxxxx X. French
___________________
Xxxxxx X. French
Treasurer
