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Non-competition And Non-solicitation Agreement

NonSolicitation Agreement

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 This NonSolicitation Agreement involves

MONSTER DIGITAL, INC. | SDJ and Monster Cable Products, Inc | SDJ Technologies, Inc | Syrma Technologies Pvt Ltd | Tandon Digital, Inc | Tandon Enterprises, Inc

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Title: NON-COMPETITION AND NON-SOLICITATION AGREEMENT
Governing Law: California     Date: 11/10/2015

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Exhibit 10.13

 

 

 

NON-COMPETITION AND NON-SOLICITATION AGREEMENT This Non-Competition And Non-Solicitation Agreement (this “Agreement”) is dated as of May 1, 2012 by and between Tandon Enterprises, Inc., a Delaware corporation (“Tandon”), and SDJ Technologies, Inc., a Delaware corporation (“SDJ”). RECITALS WHEREAS, to date, Syrma Technologies Pvt Ltd. (“Syrma”) has overseen and fulfilled, on behalf of, SDJ, an assembled memory module business (the “AMM Business”) pursuant to which Syrma (i) assembled the modules, (ii) shipped directly to SDJ’s customers and (iii) effected the invoicing with respect to such shipment and sales; WHEREAS, further to a services agreement of even date herewith, Syrma and SDJ have agree that the relationship regarding the AMM Business will be altered as follows (i) Syrma will act as a contract manufacturer and will ship such modules to SDJ’s customers of the aforementioned assembled memory modules further to a customary EMS contract and (ii) SDJ will invoice it’s customers directly; [WHEREAS, to support the AMM Business, Tandon and Syrma executed a License Agreement of even date herewith (the “Syrma License”) whereby Tandon agreed to license certain intellectual property to Syrma necessary for the operation of the AMM Business;] WHEREAS, on July 7, 2010, SDJ and Monster Cable Products, Inc. (“Monster”) executed a License Agreement, as amended on each of August 24, 2011 and April 4, 2012 (the “Monster License”) whereby Monster granted SDJ the exclusive, world-wide right to develop, manufacture, sell and distribute memory data storage products under the Monster trademarks and logos (the “Monster Business”); WHEREAS, to support the Monster Business, Tandon and SDJ executed a License Agreement of even date herewith (the “SDJ License”) whereby Tandon agreed to license certain intellectual property to SDJ necessary for the operation of the Monster Business in exchange for shares of SDJ common stock; WHEREAS, the AMM Business and Monster Business are together known as the “Business”; WHEREAS, following the SEA Closing Date, SDJ desires to receive, and Tandon is willing to provide, or cause to provide for a limited period of time, certain services in connection with the Business, subject to the terms and conditions of a Services Agreement of each date herewith (the “Services Agreement”); WHEREAS, each of the SDJ License, Syrma License [and SDJ Sublicense] and Services Agreement shall be effective as of the closing of that certain Share Exchange Agreement of even date herewith (the “SEA”) by and between Tandon Digital, Inc., a Delaware corporation (’’Tandon Digital"), and SDJ, the closing of the SEA to be conditioned on the initial closing of up to a $5.5 million private placement of Tandon Digital's common stock (the “SEA Closing Date”);

 

 

 

 

 

WHEREAS, on and after the SEA Date, SDJ is to continue to engage in the Business, including the Restricted Activities (as defined herein); NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, in the SEA and in the other documents referenced above, the parties hereto agree as follows: SECTION 1. Definitions . For purposes of this Agreement, the following terms shall have the following meanings: (a) “ Affiliates ” means, with respect to a party, any corporation or other business entity directly or indirectly controlling, controlled by or under common control with such party; as used herein, the term "control" means possession of the power to direct, or cause the direction of the management and policies of a corporation or other entity whether through the ownership of voting securities, by contract or otherwise. (b) “SDJ Bankruptcy” means that date SDJ becomes insolvent; or SDJ files a petition in bankruptcy or insolvency; or SDJ is adjudicated bankrupt or insolvent; or if SDJ files any petition or answer seeking reorganization, readjustment or arrangement of SDJ’s business under any law relating to bankruptcy or insolvency; or if a receiver, trustee or liquidator is appointed for any of the property of SDJ and within 60 days thereof SDJ fails to secure a dismissal thereof; or SDJ makes any assignment for the benefit of creditors; or of government expropriation of any material portion of the assets of SDJ. (c) “ Competing Business ” means any business that is engaged, directly or indirectly, in Restricted Activities. (d) “ Non-Compete Period ” means the period commencing on the SEA Closing Date and automatically terminating without further documentation on earlier of (i) the termination of the SDJ License or (ii) the SDJ Bankruptcy. (e) “ Non-Solicitation Period ” means that period commencing on the SEA Closing Date and automatically terminating without further documentation on the (i) earlier of the termination of the SDJ License or (ii) the SDJ Bankruptcy. (f) “ Restricted Activities ” means (i) the development, manufacture, sale and distribution of assembled memory modules and memory data storage products; (ii) the marketing, packaging, advertising and promotion of any of the products and services listed in this definition; in each case, carried on within the Territory during the Non-Compete Period. (g) “ Territory ” means the United States of America, Puerto Rico and Canada [others?] SECTION 2. Effectiveness . This Agreement shall be effective as of the SEA Closing Date and (a) shall be null and void and of no further force and effect if the SEA Agreement is terminated in accordance with its terms prior to SEA Closing Date and (b) shall terminate at the end of the Non-Compete Period.

 

 

 

 

 

 SECTION 3. Agreement Not to Compete . (a) Except as provided in Sections 3(b) and (c), Tandon shall not and shall cause each of its Affiliates not to, (i) directly or indirectly, participate in, engage in or carry on any Restricted Activities or own, operate, control, share any revenues of or have any profit or other debt o r equity interest in any Competing Business or (ii) actively assist any person or entity (other then SDJ or its subsidiaries) in any way (including by means of proving financing to such Person), directory or indirectly, to participate in, engage in or carry on any Restricted Activities or own, operate, control, share any revenues of or have any profit or other debt or equity interest in any Competing Business. (b) Notwithstanding anything herein to the contrary, Section 3(a) shall not prohibit either Tandon or its Subsidiaries from the following activities. (i) in the ordinary course of business of Tandon or any of its Affiliates, the purchase of products or services from, or sale of products or services to, a person or entity that is engaged in Restricted Activities, provided that the primary purpose of any such purchases or sales is not to assist such person or entity in engaging in or establishing a Competing Business; or (ii) the beneficial ownership of not more than an aggregate of 5.0% of the outstanding voting power of any person or entity engaged in any Competing Business whose securities are listed on any national securities exchange or automated quotation system, provided that Tandon nor Syrma, or any of its Affiliates, directly or indirectly, controls such Competing Business; (c) the event Tandon or any of its Affiliates acquires an ownership or other interest in, any Competing Business in excess of the percentage threshold set forth in Section 3(b)(ii), Section 3(a) shall nevertheless be deemed


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