Exhibit 10.3
NONCOMPETITION AGREEMENT
This Noncompetition
Agreement ( “Noncompetition
Agreement” ) is being executed and delivered as of
August 13, 2007, by Robert Van Buskirk (
“Stockholder” ), in favor of, and for the
benefit of: RF Micro
Devices, Inc., a North Carolina corporation (
“Parent” ); Sirenza Micro Devices,
Inc. (the “ Company ”); and the other
Beneficiaries (as defined in Section 19). Certain capitalized
terms used but not otherwise defined in this Noncompetition
Agreement have the meanings set forth in Section 19.
Recitals
A. Stockholder is a key
employee, stockholder, optionholder and/or other security holder of
the Company and has obtained extensive and valuable knowledge and
confidential information concerning the business of the Company and
its Affiliates.
B. Concurrently with
the execution and delivery of this Noncompetition Agreement,
Parent, Sirenza Acquisition Sub, Inc., a Delaware corporation and
wholly-owned subsidiary of Parent ( “Merger Sub”
), and the Company are entering into an Agreement and Plan of
Merger and Reorganization (the “Merger
Agreement” ), pursuant to which Merger Sub will merge
with and into the Company and the Company will become a
wholly-owned subsidiary of Parent (the “Merger”
).
C. Parent wishes to
protect its investment in the Company, including the business and
goodwill of the Company and its Affiliates and the confidential and
proprietary information possessed by Stockholder, by restricting
the activities of Stockholder which might compete with or harm the
Company or its Affiliates.
D. Stockholder will be
offered employment with Parent or an Affiliate of Parent following
the Effective Date as a result of which Stockholder will receive
substantial benefits in addition to those currently enjoyed by
Stockholder as an employee of the Company (Stockholder’s
employment with Parent or an Affiliate of Parent following the
Effective Date is referred herein as “Stockholder’s
Employment” ). After the Effective Date, Stockholder will
obtain extensive and valuable knowledge, trade secrets and other
confidential information concerning the business of Parent and its
Affiliates.
E. In connection with,
and as a condition to, Parent entering into the Merger Agreement
and the consummation of the transactions contemplated by the Merger
Agreement, and to enable Parent to secure more fully the benefits
of such transactions, Parent has required that Stockholder enter
into this Noncompetition Agreement; and Stockholder is entering
into this Noncompetition Agreement in order to induce Parent to
enter into the Merger Agreement and to consummate the transactions
contemplated by the Merger Agreement.
Agreement
1. Acknowledgements by
Stockholder. Stockholder acknowledges that:
(a) as a consequence of the Merger: (i) Parent will
acquire all of the shares of capital stock (and the underlying
goodwill) of the Company owned by Stockholder and other
stockholders of the Company in exchange for the consideration
stated in the Merger Agreement; and (ii) Stockholder will
receive substantial benefits;
(b) by virtue of Stockholder’s position with the
Company, he has developed considerable expertise in the business
operations of the Company and its Affiliates and has had extensive
access to trade secrets and other confidential information;
(c) as a result of Stockholder’s Employment, he will
develop extensive knowledge of the business operations of Parent
and its Affiliates including trade secrets and other confidential
information;
(d) to enable Parent to reap the benefits of the Merger,
Parent reasonably expects that Stockholder should refrain from
carrying on certain activities as set forth in this Noncompetition
Agreement;
(e) Parent and the other Beneficiaries would be irreparably
damaged, and Parent’s substantial investment in the Company
would be materially impaired, if Stockholder were to enter into an
activity or take any action in violation of the terms of this
Noncompetition Agreement; and
(f) the terms and conditions of this Noncompetition
Agreement are fair and reasonable to Stockholder and the restraints
imposed herein and the enforcement of the terms and conditions
hereof will not cause Stockholder to be unable to engage in lawful
professions, trades or businesses.
2. Restriction on
Competition. Stockholder agrees that, during the Restricted
Period, Stockholder shall not, and Stockholder shall ensure that
his Affiliates do not:
(a) engage directly or indirectly in Competition in any part
of the Restricted Territory; or
(b) directly or indirectly be or become an officer or other
employee, director, stockholder, owner, co-owner, Affiliate,
partner, promoter, agent, representative, designer, consultant,
advisor or manager of, for or to, or otherwise be or become
associated with or acquire or hold any direct or indirect interest
in, any Person that engages directly or indirectly in Competition
in any part of the Restricted Territory;
provided, however, that Stockholder may, without violating
this Section 2, own, as a passive investment, shares of
capital stock of a publicly-held corporation that engages in
Competition if: (i) such shares are actively traded on an
established national securities market in the United States;
(ii) the number of shares of such corporation’s capital
stock that are owned beneficially by Stockholder and the number of
shares of such corporation’s capital stock that are owned
beneficially by Affiliates of Stockholder collectively represent
less than one percent (1%) of the total number of shares of such
corporation’s capital stock outstanding; and
(iii) neither Stockholder nor any Affiliate of Stockholder is
otherwise associated directly or indirectly with such corporation
or with any Affiliate of such corporation.
3. Non-interference.
(a) During the Restricted Period, Stockholder shall not,
directly or indirectly, personally or through others, without the
prior written consent of Parent, solicit, attempt to solicit,
induce or attempt to induce (on Stockholder’s own behalf or
on behalf of any other Person) any Company Specified Person to
terminate his employment or other relationship with Parent or any
Affiliate of Parent.
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(b) During the Restricted Period, Stockholder shall not,
directly or indirectly, personally or through others, without the
prior written consent of Parent, solicit, attempt to solicit,
induce or attempt to induce (on Stockholder’s own behalf or
on behalf of any other Person) any Parent Specified Person to
terminate his employment or other relationship with Parent or any
Affiliate of Parent.
(c) During the Restricted Period, Stockholder shall not,
directly or indirectly, personally or through others, without the
prior written consent of Parent, induce or attempt to induce any
Company Business Contact to terminate any of its relationships with
Parent or any Affiliate of Parent.
(d) During the Restricted Period, Stockholder shall not,
directly or indirectly, personally or through others, without the
prior written consent of Parent, induce or attempt to induce any
Parent Business Contact to terminate any of its relationships with
Parent or any Affiliate of Parent.
4. Representations and
Warranties. Stockholder represents and warrants, to and for the
benefit of the Beneficiaries, that: (a) Stockholder has full
power and capacity to execute and deliver, and to perform all of
Stockholder’s obligations under, this Noncompetition
Agreement; and (b) neither the execution and delivery of this
Noncompetition Agreement nor the performance of this Noncompetition
Agreement will result directly or indirectly in a violation or
breach of: (i) any agreement or obligation by which
Stockholder or any Affiliate of Stockholder is or may be bound; or
(ii) any law, rule or regulation.
5. Independence of
Obligations. The covenants of Stockholder set forth in this
Noncompetition Agreement shall be construed as independent of any
other agreement or arrangement between Stockholder, on the one
hand, and the Company or Parent or any of their respective
Affiliates, on the other hand, and the existence of any claim or
cause of action by Stockholder against the Company or Parent or any
of their respective Affiliates shall not constitute a defense to
the enforcement of such covenants against Stockholder. Nothing in
this Noncompetition Agreement shall limit any of the rights or
remedies of Parent under the Merger Agreement, or any of the rights
or remedies of Parent or any of the obligations of Stockholder
under any agreement between Stockholder and Parent or any
certificate or instrument executed by Stockholder in favor of
Parent; and nothing in the Merger Agreement or in any other such
agreement, certificate or instrument, shall limit any of the rights
or remedies of Parent or any of the obligations of Stockholder
under this Noncompetition Agreement.
6. Specific Performance.
Stockholder agrees that, in the event of any breach or threatened
breach by Stockholder of any covenant, obligation or other
provision set forth in this Noncompetition Agreement:
(a) Parent and each of the other Beneficiaries will suffer
irreparable harm which cannot adequately be compensated for with
monetary damages; and (b) Parent and each of the other
Beneficiaries shall be entitled (in addition to any other remedy
that may be available to it, including monetary damages) to:
(i) a decree or order of specific performance or mandamus to
enforce the observance and performance of such covenant, obligation
or other provision; and (ii) an injunction restraining such
breach or threatened breach. Stockholder further agrees that no
Beneficiary shall be required to obtain, furnish or post any bond
or similar instrument in connection with or as a condition to
obtaining any remedy referred to in this Section 6, and
Stockholder irrevocably waives any right it may have to require any
Beneficiary to obtain, furnish or post any such bond or similar
instrument.
7. Attorneys’
Fees. If any legal action or other legal proceeding relating to
this Noncompetition Agreement or the enforcement of any provision
of this Noncompetition Agreement is brought against Stockholder,
the prevailing party shall be entitled to recover reasonable
attorneys’ fees, costs and disbursements (in addition to any
other relief to which the prevailing party may be entitled).
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8. Non-Exclusive. The
rights and remedies of Parent and the other Beneficiaries under
this Noncompetition Agreement are not exclusive of or limited by
any other rights or remedies which they may have, whether at law,
in equity, by contract or otherwise, all of which shall be
cumulative (and not alternative). Without limiting the generality
of the for
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