Exhibit No. 10.9
EXECUTION COPY
NONCOMPETITION
AGREEMENT
THIS NONCOMPETITION
AGREEMENT , dated as of
December 31, 2004, is between Skurka Aerospace Inc., a
Delaware corporation (“ Buyer ”), and TransDigm,
Inc., a Delaware corporation (“ TransDigm ”),
and Howard Skurka (“ Employee ”), having a
mailing address of 4600 Calle Bolero, Camarillo, California
93011.
RECITALS:
A. Pursuant to a Asset Purchase
Agreement, dated as of December 11, 2004 (the “
Purchase Agreement ”), among TransDigm, Skurka
Engineering Company, a California corporation (the “
Company ”), the Employee and certain other parties,
Buyer will acquire substantially all of the Company’s assets
and certain liabilities of the Company (the “
Transaction ”).
B. In connection with the
Transaction, Buyer is willing to enter into a Retention Agreement,
dated as of the date hereof, with Employee (the “
Retention Agreement ”) relating to the compensation
payable to Employee during, and upon termination of, his
employment.
C. Employee acknowledges that he
will benefit from the Retention Agreement and the consummation of
the Transaction and that it is a condition of the obligation of
Buyer and TransDigm to consummate the Transaction and to enter into
the Retention Agreement that Employee executes and delivers this
Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of
the foregoing premises and the mutual promises herein contained,
the parties, intending to be legally bound, hereby agree as
follows:
1. Definitions . For purposes
of this Agreement:
(a) “ Affiliate ”
means any Person that controls, is controlled by or is under common
control with another Person, with “control” meaning the
ownership of or ability to direct the voting of greater than 50% of
the voting equity of a Person or the ability to direct the policies
of a Person.
(b) “ Business ”
means all business conducted by the Buyer during Employee’s
tenure of employment with the Buyer.
(c) “ Person ”
means any natural person, partnership, corporation, limited
liability company, association, joint stock company, trust, joint
venture, unincorporated organization, or governmental entity or
authority.
(d) “ Restricted
Territory ” means anywhere in the world in which the
Business is conducted.
EXECUTION COPY
(e) “ Trade Secrets
” means any confidential proprietary information that has
inherent economic value as a result of its confidential nature and
that is the subject of reasonable attempts to retain its
confidentiality.
2. Non-Compete . Employee
hereby agrees, on behalf of himself and his heirs, assigns and
Affiliates, that during the tenure of Employee’s employment
with Buyer, he will not at any time directly or indirectly, whether
as a consultant, agent, independent contractor, partner, Employee,
participant, owner, creditor, investor or otherwise (other than
ownership as a passive investor of less than 2% of the voting stock
of a company listed on a national stock exchange):
(a) own, manage, operate, finance,
control or participate in the ownership, management, operation,
financing, control of, or be employed by, act as a consultant to,
be associated with, lend his name or any trade name to, any of his
credit to, or otherwise render services or advice to or on behalf
of, any business that competes or has the intention of using
Employee to compete, in the Restricted Territory, with the
Business;
(b) sell or solicit the sale of any
product or service of any Person in existence or under development
that is the same as, substantially similar to or competes with or
is intended to compete with any products or services of the
Business in the Restricted Territory;
(c) whether for his own account or
for the account of any other person, firm, corporation or other
business organization, intentionally interfere with Buyer’s
relationship with, or endeavor to entice away from Buyer, any
person or entity who, during the period prior to the date hereof,
is or was a customer or client of Buyer.
(d) except as expressly permitted by
Buyer or its successors or assigns in advance in writing, directly
or indirectly solicit any employee of Buyer or its su
