1
EXHIBIT 10.33
NON-COMPETITION AND NON-SOLICITATION AGREEMENT
This Non-Competition and Non-Solicitation Agreement (the "Agreement"),
made as of the 1st day of April, 1998, is entered into by and between ECC
International Corp., a Delaware corporation with its principal place of business
at 000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxxxxxxx 00000 (hereinafter
referred to collectively with its subsidiaries as the "Company"), and Xxxxxx X.
Xxxxxx, residing at 000 Xxxxxxxx Xxxx, Xxxxx, Xxxxxxxxxxxx 00000 ("Xxxxxx").
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties hereto, the parties
agree as follows:
1. NON-COMPETITION.
(a) During the term of this Agreement, Xxxxxx will not
directly or indirectly:
(i) as an individual proprietor, partner,
stockholder, officer, employee, director, joint venturer, investor, lender,
consultant or in any other capacity whatsoever (other than as the holder of not
more than one percent of the combined voting power of the outstanding stock of a
publicly held company), develop, design, produce, market, sell or render (or
assist any other person in developing, designing, producing, marketing, selling
or rendering) products or services competitive with those developed, designed,
produced, marketed, sold or rendered by the Company, including, without
limitation, advanced technology simulators and trainers used to support military
weapons systems; or
(ii) solicit, divert or take away, or attempt to
divert or to take away, the business or patronage of any of the clients,
customers or accounts of the Company, or prospective clients, customers or
accounts, of the Company that are known to him.
(b) If Xxxxxx violates the provisions of Section 1(a), he
shall continue to be bound by the restrictions set forth in Section 1(a) until a
period of five years has expired without any violation of such provisions.
2
2. NON-SOLICITATION.
(a) During the term of this Agreement, Xxxxxx will not
directly or indirectly recruit, solicit or hire any employee of the Company, or
induce or attempt to induce any employee of the Company to terminate his/her
employment with, or otherwise cease his/her relationship with, the Company.
(b) If Xxxxxx violates the provisions of Section 2(a), he
shall continue to be bound by the restrictions set forth in Section 2(a) until a
period of five years has expired without any violation of such provisions.
3. CONSIDERATION. In consideration of the covenants and
obligations of Xxxxxx herein contained, the Company shall pay to Xxxxxx cash
payments of $12,500 per quarter, payable in arrears on the last day of each
calendar quarter until the quarter ending March 31, 2003. Payment for any
partial quarter shall be prorated.
4. DEATH. Notwithstanding any other provision of this Agreement,
if Xxxxxx dies during the term of this Agreement and prior to April 1, 2003,
Xxxxxx'x spouse at the time of death ("Spouse") shall be entitled to receive the
cash payments set forth in Section 3 above until the earlier to occur of (i)
April 1, 2003 and (ii) Spouse's death.
5. MISCELLANEOUS.
(a) NO CONFLICT. Xxxxxx represents that the execution and
performance by him of this Agreement does not and will not conflict with or
breach the terms of any other agreement by which he is bound.
(b) NOT EMPLOYMENT CONTRACT. Xxxxxx acknowledges that
this Agreement does not constitute a contract of employment.
(c) INTERPRETATION. If any restriction set forth in
Sections 1 or 2 is found by any court of competent jurisdiction to be
unenforceable because it extends for too long a period of time or over too great
a range of activities or in too broad a geographic area, it shall be interpreted
to extend only over the maximum period of time, range of activities or
geographic area as to which it may be enforceable.
(d) SEVERABILITY. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement.
(e) WAIVER OF RIGHTS. No delay or omission by the Company
in exercising any right under this Agreement will operate as a waiver of that or
any other right. A waiver or consent given by the Company on any one occasion is
effective only
-2-
3
in that instance and will not be construed as a bar to or waiver of any right on
any other occasion.
(f) EQUITABLE REMEDIES. The restrictions contained in
this Agreement are necessary for the protection of the business and goodwill of
the Company and are considered by Xxxxxx to be reasonable for such purpose.
Xxxxxx agrees that any breach of this Agreement is likely to cause the Company
substantial and irrevocable damage and therefore, in the event of any such
breach, Xxxxxx agrees that the Company, in addition to such other remedies which
may be available, shall be entitled to specific performance and other injunctive
relief.
(g) ASSIGNABILITY. The Company may assign this Agreement
to any other corporation or entity which acquires (whether by purchase, merger,
consolidation or otherwise) all or substantially all of the business and/or
assets of the Company.
(h) GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of Delaware,
without regard to conflicts of law principles. Any action, suit or other legal
proceeding which is commenced to resolve any matter arising under or relating to
any provision of this Agreement shall be commenced only in a court of the State
of Delaware (or, if appropriate, a federal court located within Delaware), and
the Company and Xxxxxx each consents to the jurisdiction of such a court.
XXXXXX ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND
UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first set forth above.
ECC INTERNATIONAL CORP.
By: /s/ Xxxxxxx X. XxXxxx
-------------------------------
Name: Xxxxxxx X. XxXxxx
Title: Chairman of the Board
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
-3-
