Exhibit 10.6
FORM OF NON-COMPETITION AND
NON-SOLICITATION AGREEMENT
THIS NON-COMPETITION AND
NON-SOLICITATION AGREEMENT (this “ Agreement ”)
is made and entered into as of October __, 2008 by and between
Trans-India Acquisition Corporation, a Delaware corporation (the
Purchaser ”) and _______ (“ Executive
”) and shall become effective immediately following the
closing of the Acquisition (as defined below) (the “
Effective Date ”). Capitalized terms not otherwise
defined herein shall have the same meanings as set forth in the
Share Exchange Agreement (as defined below).
RECITALS
WHEREAS, the Purchaser, Solar
Semiconductor Ltd., a Cayman Islands company (the “
Company ”), Solar Semiconductor Private Limited, a
company formed under the laws of the Republic of India (“
SSPL ”), Solar Semiconductor, Inc., a California
corporation (“ SSI ” and collectively with the
Company and SSL, the “ Solar Entities ”),
Executive, and certain other Persons have entered into a share
exchange agreement of even date herewith (the “ Share
Exchange Agreement ”), pursuant to which the Purchaser
will acquire at least 80% of the outstanding shares of capital
stock of the Company (the “ Acquisition
”).
WHEREAS, the parties acknowledge
that the relevant market for the Solar Entities’ products and
services is in India, the United States, and the European Union and
that intense competition exists for the products and services of
the Solar Entities in India, the United States, and the European
Union.
WHEREAS, concurrently with the
execution hereof, Executive and the Purchaser are entering into an
Executive Employment Agreement or offer letter, as applicable (the
“ Employment Agreement ”), to address
Executive’s employment by the Purchaser following the
consummation of the Acquisition.
WHEREAS, in consideration of the
sale by Executive of his ordinary shares in the Company in
connection with the Acquisition, Executive stands to realize a
substantial financial benefit, which benefit is intended by the
parties to compensate Executive for the full value of the ordinary
shares in the Company owned by Executive.
WHEREAS, in his capacity as _____ of
the Company, Executive exerted, and following the Acquisition will
continue to exert as _____ of the Purchaser, significant
decision-making authority with respect to the management of the
Purchaser’s and the Solar Entities’ business, including
with respect to the management of the Purchaser’s and the
Solar Entities’ relationships with third party suppliers and
customers and the Purchaser’s and the Solar Entities’
employment policies.
WHEREAS, the parties hereto agree
that Executive’s services are of a special, unique and
unusual character which give them distinctive value, that he has
been critical to the building and retention of the goodwill
inherent in the relationships of the Solar Entities with their
suppliers, customers and other third party vendors, and that any
breach of the agreements set forth in this Agreement would cause
serious harm to the Solar Entities.
WHEREAS, in light of the foregoing,
Executive has voluntarily agreed to the restrictions on his
activities, and the remedies for the breach thereof, in each case,
set forth in this Agreement, and acknowledges and agrees that such
restrictions are wholly reasonable in light of the payments and
other amounts and opportunities made available to him and the risk
presented to the Purchaser’s and the Solar Entities’
business if he were to violate the restrictions set forth in this
Agreement.
WHEREAS, as a condition and
inducement to the Acquisition, and to preserve the value of the
business being acquired by the Purchaser after the Acquisition, the
Share Exchange Agreement contemplates, among other things, that
Executive shall enter into this Agreement and that this Agreement
shall become effective as of the Effective Date to set forth
certain understandings of the parties with respect to certain
restrictions on the activities of Executive during the term of
Executive’s employment with the Purchaser and following the
termination of Executive’s employment with the
Purchaser.
AGREEMENT
NOW, THEREFORE, in consideration of
the mutual benefits to be derived from this Agreement, the Share
Exchange Agreement and the Employment Agreement and of the
representations, warranties, conditions, and agreements contained
herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Covenant Not to Compete or
Solicit.
(a) Executive
acknowledges that during the course of Executive’s employment
with the Solar Entities, Executive has received and been privy to
confidential information and trade secrets of the Solar Entities
and will receive Purchaser confidential information and trade
secrets during the course of Executive’s employment with the
Purchaser, and that Purchaser has a legitimate interest in ensuring
that such confidential information and trade secrets remain
confidential and are not disclosed to third parties. Thus, to avoid
the actual or threatened misappropriation of such trade secrets and
confidential information, Executive agrees that beginning on the
Closing Date and ending on the second (2 nd ) anniversary of the
termination of Executive’s employment with the Purchaser (the
“ Non-Competition Period ”), Executive shall
not, directly or indirectly, without the prior written consent of
the Purchaser: (i) engage in, anywhere in the Restricted
Territory (as defined below), whether as an employee, agent,
consultant, advisor, independent contractor, proprietor, principal,
partner, executive, officer, director or otherwise, or have any
ownership interest in (except for ownership of one percent
(1%) or less of any publicly-held entity), or participate in
or facilitate the financing, operation, management or control of,
any Person (including through an affiliate of such Person) that
directly or indirectly engages or participates in a Competing
Business Purpose (as defined below); or (ii) interfere with
the business of the Purchaser or the Solar Entities or approach,
contact or solicit the Purchaser’s or the Solar
Entities’ customers in connection with a Competing Business
Purpose. “ Competing Business Purpose ” means
any business relating to the design, development, marketing and
selling of photovoltaic modules and related devices. “
Restricted Territory ” means India, the United States,
and the European Union.
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(b) Beginning on the
Closing Date and ending on the second (2 nd ) anniversary of the
termination of Executive’s employment with the Purchaser (the
“ Non-Solicitation Period ”), Executive shall
not knowingly, directly or indirectly, without the prior written
consent of the Purchaser, solicit, encourage or take any other
action which is intended to induce or encourage, or has the effect
of inducing or encouraging, any employee of the Purchaser or any of
the Solar Entities to (i) terminate his or her employment with
the Purchaser or any of the Solar Entities, or (ii) engage in
any action in which Executive would, under the provisions of
Section 1(a) hereof, be prohibited from engaging.
Notwithstanding the foregoing, for purposes of this Agreement, the
placement of general advertisements which may be targeted to a
particular geographic or technical area but which are not targeted
directly or indirectly towards employees of the Purchaser or any of
the Solar Entities shall not be deemed to be a solicitation under
this Agreement.
(c) The covenants contained in
Section 1(a) and Section 1(b) hereof shall be construed
as a series of separate covenants, one for each country, province,
state, city or other political subdivision of the Restricted
Territory. Except for geographic coverage, each such separate
covenant shall be deemed identical in terms to the covenants
contained in Section 1(a) and Section 1(b) hereof. If, in
any judicial proceeding, a court refuses to enforce
