EXHIBIT 10.9


 


NON-COMPETITION
AGREEMENT


 


This
Non-Competition Agreement (the “Agreement”) is entered into effective as of
                    
(the “Effective Date”), by and between SEMI-PHOTONICS CO., LTD., a company organized under the laws
of Taiwan (R.O.C.), and its affiliates (collectively, the “Company”), and
                                    
(“Employee”).


 


RECITALS


 


A.            The Company is engaged in the
business of light emitting diodes (“LED”), LED packaging, lighting, and other
related products (such business, together with any other business of the
Company conducted, constituted or reasonably contemplated by the Company during
the Non-Competition Period, as defined below, being collectively referred to
herein as the “Business”).


 


B.            The parties acknowledge that the
relevant market for the Business is worldwide in scope and that there exists
intense worldwide competition for the products and services of the Business.


 


C.            Employee
is or has become a key employee of the Company and has detailed knowledge of
Company’s trade secrets and other intellectual property, and other confidential
and proprietary information.


 


NOW, THEREFORE, in
consideration of the premises, mutual covenants and agreements hereinafter set
forth, and other consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Employee hereby agree as follows:


 


ARTICLE 1.  NON-COMPETITION


 


1.1           Non-Competition.  Employee acknowledges and agrees with the
Company that Employee’s services to the Company are unique in nature and that
the Company would be irreparably damaged if Employee were to provide similar
services to any individual, corporation, company, partnership, joint venture or
any other entity (each or together, the “Person”) competing with the Company or
engaged in a similar business. 
Accordingly, Employee covenants and agrees with the Company that during
the period commencing from the Effective Date and ending twenty-four (24)
months after the date of termination of Employee’s employment with the Company
(the “Non-Competition Period”):  Employee
shall not, directly or indirectly, either for himself or herself or for any
Person, participate in any business (including, without limitation, any
division, group or franchise of a larger organization) in Taiwan, China,
Korea, Japan, Singapore, Malaysia, United States, Canada, Germany and
Netherland which engages or which proposes to engage in the promotion, design,
development, manufacture, sale, distribution or production of products or
technologies involving the Business.  For
purposes of this Agreement, the term “participate in” shall include, without
limitation, having any direct or indirect interest in any Person, whether as a
sole proprietor, owner, stockholder, partner, joint venturer, creditor or
otherwise, or rendering any direct or indirect service, advice or assistance to
any Person whether as a partner, director, officer, employee, agent,
representative, advisor, consultant or otherwise.


 


1.2           No Interference with
the Business; Non-Solicitation.  Employee agrees that during the
Non-Competition Period, at any time or for any reason, Employee shall not,
directly or indirectly:  (a) with
respect to the Business, solicit or divert any business or clients or customers
of the Company away from the Company; (b) induce customers, clients,
suppliers, agents or other Persons under contract or otherwise associated or
doing business with the Company, to reduce or alter any such association or
business with the Company; (c) induce or attempt to induce any Person in
the employment of the 


 


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Company to (i) terminate such employment, and/or (ii) accept
employment, or enter into any consulting arrangement, with any Person other
than the Company; or (d) hire, attempt to hire either for Employee’s or on
behalf of any other Person, directly or through another Person any person who
was an employee of the Company at any time during the Non-Competition Period.


 


ARTICLE 2.  REMEDIES; COMPENSATION FOR UNDERTAKINGS


 


2.1           Remedies.  The parties agree that (i) Employee is
obligated under this Agreement to fulfill obligations, comply with covenants
and provide services of a special, unique, unusual, extraordinary and
intellectual character, thereby giving this Agreement peculiar value so that
the loss of such fulfillment or any violation by Employee of this Agreement,
including but not limited to with respect to Article 1 of this Agreement,
will materially and irreparably harm the Company, that money damage will not
afford the Company an adequate remedy, and (ii) if Employee is in breach
or threatens breach of any provision of this Agreement, the Company shall be
entitled, in addition to all other rights and remedies as may be provided by
law or equity, to seek and obtain provisional relief from a court or a tribunal
requiring specific performance and injunctive and other equitable relief to
prevent or restrain a breach of any provision of this Agreement.  Each of the parties to this Agreement shall
be entitled to enforce such party’s rights under this Agreement specifically,
to recover damages and costs (including reasonable attorneys’ fees) caused by
any breach of any provision of this Agreement, and to exercise all other rights
existing in such party’s favor.


 


2.2           Compensation
for Undertakings.  As consideration
for the covenants described in this Agreement, the Company shall deliver to
Employee, at Employee’s last known address or bank account, for each
twelve-month period, commencing on the date of Employee’s termination, an
amount equal to one-half of Employee’s annual salary then existed.  The parties acknowledge that this payment
shall constitute sufficient consideration for the undertakings described in Article 1.  Notwithstanding the previous sentence, the
parties agree that if a court or a duly seated tribunal determines that
additional consideration would be required for the effectiveness and
enforceability of such undertakings, then the Company shall have the option, in
its sole discretion, of paying such additional consideration within a
reasonable time after such court or tribunal determination.


 


ARTICLE 3.  MISCELLANEOUS


 


3.1           Entire Agreement;
Conflict; Amendments and Waivers.  Employee and the Company are parties to the
Employee Agreement and Proprietary Information and Inventions Agreements, dated
                      
(the “Other Agreements”).  In the event
of any inconsistency or conflict between any of the Other Agreements and this
Agreement, the terms of this Agreement shall control.  This Agreement contains the entire agreement
of the parties with respect to the subject matter specifically provided hereof
as of the date hereof, and supersedes all prior agreements, written or oral,
with respect thereto.  This Agreement may
be amended or modified and the terms and conditions hereof may be waived only
by a written instrument signed by each of the parties or, in the case of
waiver, by the party waiving compliance. 
No delay on the part of either party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of either party of any right, power or privilege hereunder, nor any
single or partial exercise of any right, power or privilege hereunder, preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder.  The rights and
remedies provided herein are cumulative and are not exclusive of any rights or
remedies that either party may otherwise have at law, in equity, by contract or
otherwise.


 


3.2           Notices.  Any notice, request, instruction or other
document to be given hereunder by any party to the others shall be in writing
and shall be deemed to have been duly given on the next business 


 


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day after the notice is sent, if delivered personally or sent by telecopy
(with confirmed delivery) or overnight delivery by an internationally
recognized courier, to the address set forth on the signature page to this
Agreement, or to the last known address.


 


3.3           Governing Law; Translation.  This
Agreement shall be governed by and construed in accordance with the domestic
laws of Republic of China (Taiwan), without giving effect to any choice of law
or conflict of law provision or rule. 
This Agreement may be translated into any language; the English version
shall control in all respects.  Any
versions of this Agreement in any other language will be for accommodation only
and will not be binding upon either party.


 


3.4           Severability.  To the extent
any provision of this Agreement, including without limitation the provisions
set forth in Article 2 hereof, shall be determined to be unlawful or
otherwise unenforceable, in whole or in part, such determination shall not
affect the validity of the remainder of this Agreement, and this Agreement
shall be reformed by the court or arbitration to the extent necessary to carry
out its provisions to the greatest extent possible.  In the absence of such reformation, such part
of such provision shall be considered deleted from this Agreement and the
remainder of such provision and of this Agreement shall be unaffected and shall
continue in full force and effect.  In
furtherance and not in limitation of the foregoing, should the duration or
geographical extent of, or business activities covered by any provision of this
Agreement be in excess of that which is valid and enforceable under applicable
law, then such provision shall be construed to cover only that duration, extent
or activities which may validly and enforceably be covered.  To the extent any provision of this Agreement
shall be declared invalid or unenforceable for any reason by any Governmental
or Regulatory Authority in any jurisdiction, this Agreement (or provision
thereof) shall remain valid and enforceable in each other jurisdiction where it
applies.  Employee acknowledges the
uncertainty of the law in this respect and expressly stipulates that this
Agreement shall be given the construction which renders its provisions valid
and enforceable to the maximum extent possible under applicable law.


 


3.5           Successors and Assigns.  This Agreement
shall be binding upon and inure to the benefit of the parties hereto, the heirs
and legal representatives of Employee and the successors and assigns of the
Company.  Employee shall not be entitled
to assign his or her obligations hereunder. 
The Company may assign its rights under this Agreement to any Person in
connection with any merger, consolidation or other business combination
involving it or the sale of all or a substantial portion of its assets or the
assets of its business.


 


3.6           Several Agreements.  In addition to
this Agreement between the Company and the Employee, the Company has entered
into a similar agreement with other key employees of the Company.  It is expressly agreed that this Agreement
and the obligations of the parties hereunder are to be construed separately
from any similar agreements with the other key employees of the Company and a
breach of a similar agreement by any of the other key employees of the Company
shall not constitute a breach of this Agreement.


 


3.7           Review and Representation.  Employee
represents and warrants that Employee has carefully read this Agreement; that
Employee executes this Agreement with full knowledge of the contents of this
Agreement, the legal consequences thereof, and any and all rights which each
party may have with respect to one another; that Employee has had the
opportunity to seek independent legal advice with respect to the matters set
forth in this Agreement and with respect to the rights and asserted rights arising
out of such matters, and that Employee is entering into this Agreement of
Employee’s own free will.  Employee
expressly agrees that there are no expectations contrary to the Agreement and
no usage of trade or regular practice in the industry shall be used to modify
the Agreement.  The parties agree that
this Agreement shall not be construed for or against either party in any
interpretation thereof.


 


IN WITNESS
WHEREOF, the parties have executed this Agreement effective as of the date
first written above.


 


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  SEMI-PHOTONICS
  CO., LTD.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
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