Exhibit 10.5


 


EXECUTION COPY


 


NON-COMPETITION AGREEMENT


 


THIS NON-COMPETITION AGREEMENT (“Agreement”) is dated
December 10, 2003 (the “Effective Date”), by and between Vision Acquisition
Corporation, a Delaware corporation (the “Company”), and Peek Holding Corporation (the
“Stockholder”),
Peek Corporation, a Delaware corporation (“Peek”), Peek Traffic, Inc., a Delaware
corporation (“PTI”),
and Peek Traffic Systems Inc., a Florida corporation (“PTSI”) (Stockholder,
Peek, PTI and PTSI, together the “Peek Parties”).


 


RECITALS


 


A.            The
Stockholder owns one hundred percent (100%) of the outstanding capital stock of
Peek; and Peek owns one hundred percent (100%) of PTI and PTSI.


 


B.            PTI
and PTSI are engaged in the manufacture and sale of traffic and
intersection controllers, signals, detectors, automatic data recorders,
tolling systems, closed loop multiple arterial traffic systems, public
transport tracking systems, video track camera systems, and red-light
enforcement systems, and related software for all such systems and products for
the transportation industry in the United States, Canada and Mexico (the “Business”).


 


C.            Pursuant
to an asset purchase agreement (the “Asset Purchase Agreement”), the Company will
acquire substantially all of the assets of PTI and PTSI that are used in the
Business, including the good will of PTI and PTSI.  Capitalized terms which are not otherwise defined herein shall
have the meanings ascribed to such terms in the Asset Purchase Agreement.  As used herein, the “Jurisdiction” means the United States,
Canada, Mexico, Cuba, U.S. protectorates and U.S. possessions.  The Peek Parties and their Affiliates are
also engaged in the business of signal maintenance for traffic signals,
equipment and lighting in the Jurisdiction (the “SMI Business”).


 


D.            The
Company’s willingness to enter into the Asset Purchase Agreement is conditioned
upon, among other things, its ability to protect the value of the goodwill of
the Business it is acquiring by virtue of the Asset Purchase Agreement.  The Company and the Peek Parties acknowledge
that (i) the Peek Parties’ entry into this Agreement is critical to the
Company’s ability to protect the value of the goodwill of the Business the
Company is acquiring in the Asset Purchase Agreement and (ii) the Peek Parties’
execution and delivery of this Agreement is a condition precedent to the
Company’s consummation of the acquisition contemplated by the Asset Purchase
Agreement.


 


E.             The
Stockholder and Peek acknowledge that as indirect and direct stockholders in
PTI and PTSI, respectively, Stockholder and Peek have had regular access to
various confidential and/or proprietary information relating to the Business.


 


F.             The
Company acknowledges that the Peek Parties or their Affiliates own or operate
other businesses that use confidential and/or proprietary information that 


 

















 


may be the same as or similar to any such
information relating to the Business and that this Agreement is not intended to
affect the Peek Parties’ ability to own or operate such businesses or use such
proprietary and/or confidential information in connection therewith.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the
foregoing recitals, and the mutual agreements herein contained and other good
and valuable consideration, the receipt and sufficiency of which are hereby
mutually acknowledged, the parties hereby agree as follows:


 


1.             Non-Disclosure Covenant.


 


(a)           For a period of five years after the Effective Date,
each of the Peek Parties shall not, and shall cause its Affiliates not to
either directly or indirectly, disclose to any “unauthorized person” or use for
the benefit of the Peek Parties or any person or entity other than the Company
any knowledge or information that it acquired while it was a stockholder or
otherwise affiliated with PTI and PTSI relating to (i) the financial,
marketing, sales and business plans and affairs, financial statements,
analyses, forecasts and projections, books, accounts, records, operating costs
and expenses and other financial information of PTSI or PTI; (ii) internal
management tools and systems, costing policies and methods, pricing policies
and methods and other methods of doing business of PTSI or PTI; (iii) vendor
and supplier information, customers, sales, customer requirements and usages,
distributor lists of PTSI or PTI; (iv) agreements with customers, vendors,
independent contractors, employees and others of PTSI or PTI; (v) existing and
future products, specifications or services and product development plans,
designs, analyses and reports of PTSI or PTI; (vi) computer software and data
bases developed for PTSI or PTI, (vii) trade secrets, manufacturing techniques,
processes, research, records of research, models, designs, drawings,
photographs, technical data and reports of PTSI or PTI; and (vii) correspondence
or other private or confidential matters, information or data whether written,
oral or electronic, that are proprietary to PTSI or PTI and not generally known
to the public (individually and collectively “Confidential Information”), without the
Company’s prior written permission.


 


(b)           For purposes of this
paragraph 1, the term “unauthorized
person”  shall mean any Person who is not (i) an officer or
director of the Company or an employee of the Company for whom the disclosure
of the knowledge or information referred to herein is necessary for its
performance of its assigned duties; (ii) an employee, officer or director of an
Affiliate of the Company for whom the disclosure of the knowledge or
information referred to herein is necessary for its performance of its assigned
duties; (iii) a person expressly authorized by the Company to receive
disclosure of such knowledge or information; or (iv) any officer, director,
employee or representative of the Peek Parties or their Affiliates who needs to
have access to such information in order


 


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to facilitate compliance with
this Agreement and prosecutions, defense, or resolution of any dispute arising
hereunder.


 


(c)           The Company
expressly acknowledges and agrees that the term “Confidential Information” excludes
information which is (A) in the public domain or otherwise generally known to
the trade; (B) disclosed to third parties other than by reason of any of the
Peek Parties’ breach of its confidentiality obligation hereunder; (C) learned
of by the Peek Parties subsequent to the Closing Date from any other party not
known by the Peek Parties to be then under an obligation of confidentiality to
the Company or its Affiliates; or (D) solely related to any portion of the
Excluded Business or any other business other than the Business in the
Jurisdiction.


 


(d)           If any of the Peek
Parties, or any of its representatives, or any authorized person to whom any of
the Peek Parties supplies Confidential Information, receives a request to
disclose all or any part of the Confidential Information under the terms of a
subpoena or order issued by a court or by a governmental body, the Peek Parties
agrees:


 


(i)             to notify the Company immediately of the
existence, terms and circumstances surrounding each request;


 


(ii)          to consult with the Company on the
advisability of taking legally available steps to resist or narrow such
request; and


 


(iii)       if in the opinion of counsel acceptable to
the Peek Parties disclosure of such Confidential Information is required to
prevent the Peek Parties from being held in contempt, or subject to other
penalty, to furnish only such portion of the Confidential Information as, in
the written opinion of counsel, it is legally compelled to disclose and to exercise
its best efforts to obtain an order or other reliable assurance that
confidential treatment will be accorded to the disclosed Confidential
Information.


 


(e)           Notwithstanding any
other provision of this Agreement, any Party to this Agreement (and any employee,
representative, or other agent of any party to this Agreement) may disclose to
any and all Persons, without limitation of any kind, the Tax treatment and Tax
structure of the transactions contemplated by the Asset Purchase Agreement (the
“Transactions”) and
all materials of any kind (including opinions or other tax analyses) that are
provided to it relating to such Tax treatment and Tax structure.  However, such disclosure may not be made to
the extent that the disclosure is restricted to comply with any securities
laws.  Moreover, such disclosure may not
be made until the earlier of (i) the date of the public announcement of
discussions relating to the Transactions, (ii) the date of the public
announcement of the Transactions or (iii) the date of execution of an agreement
to enter into the Transactions.  In
connection with the foregoing, any party to this Agreement shall be free to
consult any Tax advisor regarding 


 


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the Tax treatment or Tax structure
of the Transactions.  For purposes of
this paragraph, the Tax treatment of the Transactions is the purported or
claimed U.S. federal income Tax treatment of the Transaction, and the Tax
structure of the Transaction is any fact that may be relevant to understanding
the purported or claimed U.S. federal income Tax treatment of the Transactions.


 


2.             Restrictive Covenants. 
Each of the Peek Parties agrees that it will not, and it shall cause its
Affiliates not to, either alone or in conjunction with any other Person,
directly or indirectly:


 


(a)           for a period of five
years after the Effective Date, own, manage, operate, provide financing to, or
join, control or participate in the ownership, management, operation or control
of, or provision of financing to, any business wherever located (whether in
corporate, proprietorship or partnership form or otherwise), if such business
competes with the Business in the Jurisdiction as the Business is currently
conducted or as it has been conducted during the twelve (12) month period prior
to the Effective Date;


 


(b)           for a period of five
years after the Effective Date, for the direct or indirect benefit of any
Person engaged in the business of manufacturing or selling products that are
competitive with the products manufactured or distributed on the date hereof by
the Business in the Jurisdiction (a “Competitor”), seek to procure orders from,
or do business with, or procure directly or indirectly with any other Person,
or procure orders from or do business with, in any case, in the Jurisdiction,
any Person who or which has been a customer of the Business at any time during
the period of twelve (12) months prior to the Effective Date;


 


(c)           for a period of five
years after the Effective Date, for the direct or indirect benefit of any
Competitor, solicit or contact with a view to the engagement or employment by
any Person, any Person who has been an employee, officer or manager of Seller
in the twelve (12) months prior to the Effective Date, in any case if the
employee, officer or manager either was, as a part of his or her duties, privy
to Confidential Information or know-how; provided however, that, without
limitation, the foregoing shall not apply to generalized solicitations for
employees by use of advertisements in the media that are not specifically
targeted at employees of the Seller or would be in a position to exploit the
trade connections of the Business; or


 


(d)           for a period of five
years after the Effective Date, seek to contract or interfere with or otherwise
engage in such a way as to adversely affect the Business in the Jurisdiction as
operated on the date of this Agreement any Person who or which is a party to a
Contractual Obligation with the Business, or has otherwise been engaged to
manufacture, assemble, supply or deliver products, goods, materials or services
to the Business, at any time during the period of twelve (12) months prior to
the Effective Date;


 


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provided,
however, that (i) this Section 2 shall not be applicable if Stockholder is
acquired, or enters into a business combination transaction with, another
Person that engages in any of the activities in the Jurisdiction that would
otherwise be prohibited by this Section 2 so long as the primary purpose
of such transaction is not to evade the provisions of this Section 2, (ii)
ownership or acquisition by the Peek Parties, and their Affiliates, of an
aggregate of less than five percent (5%) of the outstanding stock of any
publicly traded company which competes with the Business shall not constitute a
violation of this Section 2, (iii) nothing in this Section 2 shall be
construed to restrict the ability of the employees of the Peek Parties to gain
employment in the relevant industry with entities other than the Peek Parties
and their Affiliates, and (iv) notwithstanding the above and for avoidance of
doubt, nothing in this Section 2 shall prevent the Peek Parties or their
Affiliates from continuing to conduct the SMI Business as it is currently
conducted in the Jurisdiction.


 


3.             Remedies. 
The Peek Parties and the Company acknowledge and agree that, (i) they
regard the restrictions contained in Section 1 and Section 2 as
reasonable and designed to provide the Company with limited, legitimate and
reasonable protection against subsequent diminution of the value of the
Business attributable to any actions of the Peek Parties or any of its
Affiliates contrary to such covenants, and (ii) because the legal remedies of
the Company may be inadequate in the event of a breach of, or other failure to
perform, any of the covenants and obligations set forth in Sections 1 and 2,
the Company may, in addition to obtaining any other remedy or relief available
to it (including, without limitation, consequential and other damages at law),
obtain specific enforcement of Section 1 and 2 and other equitable
remedies.


 


4.             Enforceability.  If
the final judgment of a court of competent jurisdiction declares that any term
or provision of Section 2 is invalid or unenforceable, the parties agree
that the court making the determination of invalidity or unenforceability shall
have the power to reduce the scope, duration, or area of the term or provision,
to delete specific words or phrases, or to replace any invalid or unenforceable
term or provision with a term or provision that is valid and enforceable and
that comes closest to expressing the intention of the invalid or unenforceable
term or provision, and this Agreement shall be enforceable as so modified after
the expiration of the time within which the judgment may be appealed.


 


5.             Governing Law. This Agreement (and any claims or disputes
arising out of or relating hereto or to the transactions contemplated hereby or
to the inducement or any Party to enter into herein, whether for breach of contract,
tortious conduct or otherwise and whether predicted on common law, statute or
otherwise) shall be subject to and governed by and construed in accordance with
the laws of the State of Illinois without reference to any choice of law or
conflicts of law rules or provisions (whether of the State of Illinois or any
other jurisdiction), irrespective of the fact that the Peek Parties may become
a resident of a different state.


 


6.             Binding Effect. The Agreement shall be binding upon and
inure to the benefit of the Company, its successors and assigns, and each of
the Peek Parties and its successors and assigns.


 


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7.             Complete Understanding. 
Except as set forth in the Asset Purchase Agreement, this Agreement constitutes
the complete understanding among the parties hereto with regard to the subject
matter hereof, and supersedes any and all prior agreements and understandings
relating to the subject matter hereof.


 


8.             Amendments. No change, modification or amendment of any
provision of this Agreement shall be valid unless made in writing and signed by
all of the parties hereto.


 


9.             Waiver. The waiver by the Company of a breach of
any provision of this Agreement by the Peek Parties shall not operate or be
construed as a waiver of any subsequent breach by the Peek Parties.


 


10.          Venue, Jurisdiction, Etc. The Peek Parties hereby agrees that any
suit, action or proceeding relating in any way to this Agreement may be brought
and enforced in the Circuit Court of Cook County, Illinois or in the District
Court of the United States of America for the Northern District of Illinois,
Eastern Division, and in either case the Peek Parties hereby submits to the
jurisdiction of each such court. The Peek Parties hereby waives and agrees not
to assert, by way of motion or otherwise, in any such suit, action or
proceeding, any claim that the Peek Parties is not personally subject to the
jurisdiction of the above-named courts, that the suit, action or proceeding is
brought in an inconvenient forum or that the venue of the suit, action or
proceeding is improper. The Peek Parties consents and agrees to service of
process or other legal summons for purpose of any such suit, action or
proceeding by registered mail addressed to the Peek Parties at its address
listed in Section 11.  Nothing
contained herein shall affect the rights of the Company to bring suit, action
or proceeding in any other appropriate jurisdiction. The Peek Parties and the
Company do each hereby waive any right to trial by jury, he or it may have
concerning any matter relating to this Agreement.


 


11.          Notice.  All
notices, requests demands, claims, and other communications hereunder will be
in writing.  Any notice, request,
demand, claim, or other communication hereunder shall be deemed duly given if
sent by facsimile (with written confirmation of receipt) (and a copy is mailed,
by registered or certified mail, return receipt requested, postage prepaid), or
if sent by a nationally recognized overnight delivery service (with written
confirmation of receipt in each case) addressed to the intended recipient, as
set forth below:


 


	
  If to Peek
  Parties:

  	
   

  	
  Peek
  Corporation

  
	
   

  	
   

  	
  2511
  Corporate Way

  
	
   

  	
   

  	
  Palmetto,
  FL  34221

  
	
   

  	
   

  	
  Attn: Andy
  Roake

  
	
   

  	
   

  	
  Facsimile:
  (941) 365-0837

  



 


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  Copy to:

  	
   

  	
  Allen &
  Overy

  
	
   

  	
   

  	
  1221 Avenue
  of the Americas

  
	
   

  	
   

  	
  New York,
  NY  10020

  
	
   

  	
   

  	
  Attn: Hugh
  McDonald

  
	
   

  	
   

  	
  Facsimile:
  (212) 610-6399

  
	
   

  	
   

  	
   

  
	
  If to
  Company:

  	
   

  	
  Vision
  Acquisition Corporation

  
	
   

  	
   

  	
  One East
  Wacker Drive

  
	
   

  	
   

  	
  Chicago,
  Illinois  60601

  
	
   

  	
   

  	
  Attention:  Leslie J. Jezuit

  
	
   

  	
   

  	
  Facsimile:  (312) 467-0197

  
	
   

  	
   

  	
   

  
	
  Copy to:

  	
   

  	
  Holland
  & Knight LLC

  
	
   

  	
   

  	
  30th Floor

  
	
   

  	
   

  	
  131 S.
  Dearborn Street

  
	
   

  	
   

  	
  Chicago,
  IL  60603

  
	
   

  	
   

  	
  Attention:  Anne Hamblin Schiave

  
	
   

  	
   

  	
  Facsimile:  (312) 578-6666

  



 


Any Party may send any notice, request,
demand, claim, or other communication hereunder to the intended recipient at
the address set forth above using any other means (including personal delivery,
expedited courier, messenger service, facsimile, ordinary mail, or electronic mail),
but no such notice, request, demand, claim, or other communication shall be
deemed to have been duly given unless and until it actually is received by the
intended recipient.  Any Party may
change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Parties notice
in the manner herein set forth.


 


12.          Severability. If any portion of this Agreement shall be
for any reason, invalid or unenforceable, the remaining portion or portions
shall nevertheless be valid, enforceable and carried into effect.


 


13.          Headings. The headings of this Agreement are inserted
for convenience only and are not to be considered in the construction of the
provisions hereof.


 


14.          Counterparts. This Agreement may be executed in one or
more counterparts, all of which, taken together, shall constitute one and the
same agreement.


 


[signature page
follows]


 


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IN WITNESS
WHEREOF, the
Company has caused this Non-Competition Agreement to be signed by its duly
authorized officers and its corporate seal to be hereunto affixed, and each of
the Peek Parties has caused this Agreement to be signed by its duly authorized
officers and its corporate seal to be hereunto affixed on the day and year
first above written.


 


 


	
  VISION ACQUISITION CORPORATION

  	
   

  	
  PEEK HOLDING
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   /s/ LESLIE JEZUIT

  	
   

  	
  By:

  	
   /s/ ANDREW ROAKE

  
	
  Its:

  	
   President

  	
   

  	
  Its:

  	
   Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  PEEK TRAFFIC SYSTEMS, INC.

  	
   

  	
  PEEK
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   /s/ ANDREW ROAKE

  	
   

  	
  By:

  	
   /s/ ANDREW ROAKE

  
	
  Its:

  	
   Director

  	
   

  	
  Its:

  	
   Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PEEK TRAFFIC, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   /s/ ANDREW ROAKE

  
	
   

  	
   

  	
   

  	
  Its:

  	
   Director

  
						



 


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