AGREEMENT NOT TO COMPETE (11. EX-10.2 3 file3.htm NON-COMPETITION AGREEMENT)

Section 3. Agreement Not to Compete. Subject to the successful consummation of the Closing, Suburban agrees that, during the Term, without the prior written consent of Buyer, (i) neither Suburban nor its Affiliates will, directly or indirectly, own, conduct or operate a Wholesale Propane Business in the states of South Carolina, North Carolina, Georgia or Virginia, and (ii) neither Suburban nor its Affiliates will, directly or indirectly, own, operate, construct, finance, or assist in the ownership, operation, construction or finance of, propane storage facilities in the states of South Carolina, North Carolina, Georgia or Virginia which are competitive with the Caverns, other than propane storage facilities used exclusively to store propane intended by Suburban to be sold (A) by Suburban’s or its Affiliate’s owned retail outlets (customer service centers), and (B) to end-users who do not resell. The preceding sentence shall not apply to either Wholesale Propane Business or propane storage facilities to which Suburban or its Affiliates gain access as a result of Suburban’s or its Affiliate’s acquisition of, or an acquisition of Suburban or its Affiliate by, a Midstream Company, in connection with a merger, consolidation, or asset or Equity Interest acquisition. Except as expressly set forth in this Section 3, this Agreement shall not be construed as preventing the Parties from competing with each other; provided, however, that neither Party shall use the Confidential Information disclosed to it by the other Party to facilitate, sponsor or otherwise affect such competition.

NON COMPETITION (37. NON-COMPETE AGREEMENT)

1. During the Restricted Period, the Seller will:

a. Not directly or indirectly compete with the business of the Company and it successors and assigns with regard to the dial-up Internet access business. Nothing herein shall limit the ability of Seller to provide web hosting services. Nothing herein shall limit the ability of Seller to acquire an enterprise that includes dial-up Internet access as an ancillary part of its business, provided that Seller divests itself of such dial-up Internet business within a reasonable time. Nothing herein shall limit the ability of Seller to provide dial up Internet access to its commercial customers as a back-up method of accessing the Internet.

b. Not induce or attempt to persuade any former, current or future employee, agent, manager, consultant, director, or other participant in the Company’s business to terminate such employment or other relationship in order to enter into any relationship with the Seller, any business organization in which the Seller is a participant in any capacity whatsoever, or any other business organization in competition with the Corporation’s business; or

c. Not use contracts, proprietary information, trade secrets, confidential information, customer lists, mailing lists, goodwill, or other intangible property used or useful in connection with the Company’s business as it pertains to Internet access except in connection with Seller’s web hosting business.

d. Retain information related to the dial-up Internet business which is set forth as confidential and will not use said information on his or her own behalf or disclose same to any third party.

e. Not compete by means of solicitation or other dealings with the Company’s vendors, customers, or suppliers.

f. Refer all inquires for dial-up Internet access service to Buyer exclusively.

COVENANT NOT TO COMPETE (43. NONCOMPETITION AGREEMENT)

2. Covenant Not to Compete. For a period of five years from and after the Closing Date, none of the Principals, their family members nor their affiliates will engage directly or indirectly (except having less than 1% ownership of the outstanding stock in any publicly-traded corporation) in the Business worldwide. If the final judgment of a court of competent jurisdiction declares that any term or provision of this 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 will be enforceable as so modified after the expiration of the time within which the judgment may be appealed.

NON-COMPETE (30. EX-10.3 4 dex103.htm NON-COMPETITION AGREEMENT)

1. Non-Compete. The Seller and the Purchaser acknowledge and agree that the goodwill value of the Seller comprises an essential portion of the consideration received by the Purchaser under the Asset Purchase Agreement for which the Purchaser is paying the Purchase Price and the Purchaser would not enter into the Asset Purchase Agreement or purchase the Assets from the Seller without the Seller’s agreement to the provisions of this Agreement. Accordingly, the Seller covenants as follows:

(a) For a period of three (3) years after the Effective Date (the “Non-Competition Period”), the Seller will not, directly or indirectly, compete with the Purchaser by locating any business in the Commonwealth of Virginia that would engage, in activities in a competitive capacity that compete with the Purchaser’s operation of the Business. In addition, during the Non-Competition Period Seller shall not solicit the existing customers of the Business identified on Schedule 2.1.3(a) to the Asset Purchase Agreement.

(b) The Purchaser agrees that competition for purposes of Section 1(a) above shall include only engaging in competitive activity either as a manager, owner or operator and that this Agreement shall not prohibit the following activities irrespective of the geographic location of such activities: (i) any activities of (a) Mimotopes Pty Ltd, (b) Venturepharm Laboratories Limited or (c) any other entity that is or may become affiliated or associated with the Seller through merger, consolidation, asset purchase or other acquistion (such other entity together with Mimotopes Pty Ltd and Venturepharm Laboratories are hereinafter collectively referred to as the Excluded Entities ), including the activites of the Seller or its employees acting on or behalf of the Excluded Entities, provided that during the Non-Competition Period the Excluded Entities shall not solicit the existing customers of the Business identified on Schedule 2.1.3(a) to the Asset Purchase Agreement; or (ii) the Seller’s engaging regulatory consulting services in the area of pharmaceuticals, bio-pharmaceuticals, diagnostics and/or medical devices.

(c) If any provision of this Section 1 relating to the time period, geographic area or scope of activities shall be declared by a court of competent jurisdiction to exceed the maximum time period, geographic area or scope of activities, as applicable, said time period, geographic area or scope shall be deemed to be, and thereafter shall become, the maximum time period, geographic area or greatest scope that such court deems reasonable and enforceable and this Agreement shall automatically be considered to have been amended and revised to reflect such determination.

COVENANTS (48. NONCOMPETITION AGREEMENT)

1. Covenants.

(a) You acknowledge and agree that: (i) as a member of the I&VT, you will be exposed to some of the most sensitive and confidential information possessed by IBM and its affiliates (collectively, the Company ), including global strategic plans, marketing plans, information regarding long-term business opportunities and information regarding the development status of specific Company products, as well as extensive assessments of the global competitive landscape of the industries in which the Company competes; and (ii) the aforementioned information represents the product of the Company’s substantial global investment in research and innovation, is critical to the Company’s competitive success, is disclosed to the Company’s senior leaders only on a strictly confidential basis, and is not made accessible to the public or to the Company’s competitors.

(b) You further acknowledge and agree that: (i) the business in which the Company is engaged is intensely competitive and that your employment by IBM has required, and will continue to require, that you have access to, and knowledge of, confidential information of the Company, including, but not limited to, certain or all of the Company’s methods, information, systems, plans for acquisition or disposition of products, expansion plans, financial status and plans, customer lists, client data, personnel information and trade secrets of the Company, all of which are of vital importance to the success of the Company’s business (collectively, Confidential Information ); (ii) the disclosure of any of the foregoing would place the Company at a serious competitive disadvantage and would do serious damage, financial and otherwise, to the business of the Company; (iii) you have been given access to, and developed relationships with, customers of the Company at the time and expense of the Company; and (iv) by your training, experience and expertise, your services to the Company are, and will continue to be, extraordinary, special and unique.

(c) You acknowledge and agree that you will keep in strict confidence, and will not, directly or indirectly, at any time during or after your employment with IBM, disclose, furnish, disseminate, make available or, except in the course of performing your duties of employment, use any trade secrets or confidential business and technical information of the Company or its customers or vendors, without limitation as to when or how you may have acquired such information. Such information shall include, without limitation, the Company’s unique selling, manufacturing and servicing methods and business techniques, training, service and business manuals, promotional materials, training courses and other training and instructional materials, vendor and product information, customer and prospective customer lists, other customer and prospective customer information and other business information. You specifically acknowledge that all such information, whether reduced to writing, maintained on any form of electronic media, or maintained in your mind or memory and whether compiled by the Company, and/or you, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been made by the Company to maintain the secrecy of such information, that such information is the sole property of the Company and that any retention and use of such information by you during or after your employment with IBM (except in the course of performing your duties and obligations hereunder) shall constitute a misappropriation of the Company’s trade secrets.

(d) You acknowledge and agree that during your employment with IBM and for twelve (12) months following the termination of your employment either by you for any reason, by IBM for Cause, or by IBM without Cause where IBM elects, pursuant to Paragraph 4 below, to make certain severance payments to you, you will not directly or indirectly within the Restricted Area (i) Engage in or Associate with (a) any Business Enterprise or (b) any competitor of the Company; or (ii) solicit, for competitive business purposes, any customer of the Company with which you were involved as part of your job responsibilities during the last twelve (12) months of your employment with IBM. You further agree that during your employment with IBM and for the two (2) year period following the termination of your employment by either you or by IBM for any reason, you will not directly or indirectly within the Restricted Area, hire, solicit or make an offer to any employee of the Company to be employed or perform services outside of the Company.

NON-COMPETITION (16. EX-10.2 4 g07789exv10w2.htm EX-10.2 NON-COMPETITION AGREEMENT)

2. Non-Competition. During the three (3) year period beginning on the date hereof, Purchaser shall not, without the prior written consent of PRG in each instance, directly or indirectly, own, operate, carry on or engage in any business which: (a) provides accounts payable recovery audit services in Austria, Belgium, the Czech Republic, Denmark, France, Germany, Ireland, Italy, the Netherlands, Norway, Poland, Portugal, Slovakia, Spain, Sweden, Switzerland, the United Kingdom, or the State of New York or the State of Georgia; or (b) provides Domestic VAT Services (as hereinafter defined) to any entity (or any entity controlled by any such entity) listed on Exhibit A attached hereto and incorporated herein by this reference (all of which are clients of PRG or its affiliates). For purposes hereof, Domestic VAT Services shall mean 6th Directive VAT Audit services which identify under-recoveries of value added taxes by a client in its local VAT returns (Form 3s).

NON COMPETITION (44. EXECUTIVE NON-COMPETITION AGREEMENT)

2. Non-competition. Unless otherwise agreed in writing by the Company, the Executive will not, directly or indirectly, in any capacity (including as director, officer, employee, stockholder, partner, owner, consultant or advisor) provide services of any kind, anywhere in the world, until eighteen (18) months following the end of the Executive’s employment by the Company ( Restricted Period ), to any Issuer of MasterCard, VISA, American Express, Discover Card or any other type or credit card or charge card, any bank or other lender which makes consumer loans of any kind, any insurance company or agency which issues or markets personal lines insurance policies, or any affiliate of any such entity. These services include, but are not limited to, services relating to (i) sales, endorsement, co-branding or similar agreements, (ii) product development and marketing, (iii) credit approval and collections, (iv) customer service, (v) funding or other treasury matters, (vi) loan portfolio acquisitions, mergers or other acquisitions, (vii) financial, legal or accounting matters, or (viii) acquisition of or advice or assistance to others to acquire the Corporation or the Bank or beneficial ownership of 10% or more of the Corporation’s Common Stock. In addition, the Executive agrees that during the Restricted Period, the Executive will not provide services to any affinity group or commercial organization, or any affiliate of such entity, relating to an affinity or co-branded credit card, consumer loan or personal lines insurance program with the Company or any other entity. The Executive agrees that these restrictions are reasonable.

COVENANT NOT TO COMPETE (8. NON-COMPETITION AGREEMENT)

1. Covenant Not To Compete.

a. Each Stockholder acknowledges the valuable consideration of the agreements set forth in the Stock Purchase Agreement and recognizes such Stockholder’s possession of confidential information regarding the Company and the production, gathering, transporting, marketing, treating or processing of biodiesel or by-products of the production thereof or the ownership, lease, acquisition, construction or operation of biodiesel facilities (the Biodiesel Business ) and acknowledges and recognizes the highly competitive nature of the Biodiesel Business. Accordingly, in consideration of the agreements among the parties set forth in this Agreement and the Stock Purchase Agreement, each Stockholder agrees that, until such Stockholder no longer owns any Common Stock or other equity interest in the Company, the Stockholder will not, for any reason whatsoever, either individually or through one or more of its Affiliates, directly or indirectly (i) engage or participate in any manner, other than through the Company, in the Biodiesel Business, (ii) divert, take away or solicit, or attempt to divert, take away or solicit any Biodiesel Business of the Company, (iii) solicit any employee or agent of the Company for the purpose of inducing or otherwise encouraging such employee or agent to terminate his or her employment or relationship with the Company, or (iv) assist others in engaging in any of the foregoing actions described in clauses (i), (ii) or (iii) above. For the purposes of this Agreement, Affiliates shall be defined as in the Stock Purchase Agreement.

b. It is the desire and intent of the parties hereto that the provisions of this Section 1 shall be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, although the Stockholder considers the restrictions contained in this Section 1 to be reasonable for the purposes of preserving the business of the Company and proprietary rights of the Company, if any particular provision of this Section 1 shall be adjudicated to be invalid or unenforceable, such provision shall be deemed amended to delete therefrom the portion thus adjudicated to be invalid or unenforceable, such deletion to apply only with respect to the operation of such provision in the particular jurisdiction in which such adjudication is made. It is expressly understood and agreed that, although each Stockholder considers the restrictions contained in this Section 1 to be reasonable, if a final determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Section 1 is unenforceable against a Stockholder, the provisions of this Section 1 shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable.

c. The parties acknowledge that damages at law would be an inadequate remedy for the breach or threatened breach by the Stockholder of any provision of this Section 1, and agree in the event of such breach or threatened breach that the Company may obtain temporary and permanent injunctive relief (any requirements for posting of bond for injunction are hereby expressly waived) restraining the Stockholder from such breach, and, to the extent permissible under applicable statutes and rules of procedure, a temporary injunction may be granted immediately upon the commencement of any such suit. Nothing contained in this Agreement shall be construed as prohibiting the Company from pursuing other remedies available at law or equity for such breach or threatened breach of this Section 1.

d. Except as provided above in Sections 1(a), (b) and (c), the Stockholder, in its individual capacity or otherwise, and its principals and Affiliates, shall be free to engage and conduct or participate in any business or activity whatsoever without any accountability or obligation whatsoever to the Company.

PROHIBITION AGAINST CERTAIN ACTIVITIES (19. NON-COMPETITION AGREEMENT)

Section 4.2. Prohibition Against Certain Activities. The Seller will not, directly or indirectly, either through any form of ownership or in any representative capacity whatsoever, either for the its own benefit or for the benefit of any other Person or the Seller’s Affiliates, without the prior written consent of Purchaser, utilize the Confidential Information to engage or compete, or allow the Seller’s Affiliates to engage or compete in the Company Field during the term of this Agreement, including, without limitation, engage or compete in any of the other following acts, which acts will be considered violations of this Agreement:

(a) Request or advise any Customer of the Purchaser or its Affiliates for services and products offered or sold by Purchaser or its Affiliates, to withdraw, curtail or cancel any of such business with the Purchaser or its Affiliates;

(b) Assist any Person other than the Purchaser or its Affiliates in soliciting any Customer of the Purchaser or its Affiliates for the purpose of supplying products or services of the Company;

(c) Induce or attempt to influence any employee of the Purchaser or its Affiliates to terminate his or her employment with the Purchaser or its Affiliates;

(d) Employ, or cause to be employed, any person employed by the Purchaser or its Affiliates as a corporate officer or manager at any time during the term of this Agreement unless otherwise agreed by Purchaser;

(e) Do or perform any act that disparages the operations or business of the Purchaser; or

(f) Request, advise or attempt to influence any Person that is a source of materials, supplies, personnel, services, funds or information for the Purchaser or its Affiliates to withdraw, cancel or curtail the sale or furnishing of such items to the Purchaser or its Affiliates.

COVENANT AGAINST COMPETITION (38. EX-10.4 5 rrd227067_26900.htm FORM OF NON-COMPETITION AGREEMENT AMENDED AND RESTATED)

2. Covenant Against Competition.

a. The Officer shall not, during his employment with the Company

and for one year thereafter, directly or indirectly, induce or attempt to influence any employee of the Company to terminate his employment with the Company or hire or solicit for hire on behalf of another employer any person then employed or who had been employed by the Company during the immediately preceding six months.

b. The Officer shall not, during his employment with the Company and for one year thereafter, unless the Officer is terminated by the Company without Cause, directly or indirectly, engage in (as a principal, partner, director, officer, agent, employee, consultant or otherwise) or be financially interested in any business operating within the United States of America, if (i) such business? primary business is the retail and/or commercial sale of automotive parts, accessories, tires and/or automotive repair/maintenance services including, without limitation, the entities (including their franchisees and affiliates) listed on Schedule 2(b)(i) hereto, or (ii) such business is a general retailer which generates revenues from the retail and/or commercial sale of automotive parts, accessories, tires and/or automotive repair/maintenance services in an aggregate amount in excess of $1 billion, including, without limitation, the entities (including their franchisees and affiliates) listed on Schedule 2(b)(ii) hereto. However, nothing contained in this Section 2b shall prevent the Officer from holding for investment up to two percent (2%) of any class of equity securities of a company whose securities are traded on a national or foreign securities exchange.

c. Officer acknowledges that the restrictions contained in this Section 2, in view of the nature of the business in which the Company is engaged, are reasonable and necessary in order to protect the legitimate interests of the Company, and that any violation thereof would result in irreparable injuries to the Company, and the Officer therefore acknowledges that, in the event of his violation of any of these restrictions, the Company shall be entitled to obtain from any court of competent jurisdiction preliminary and permanent injunctive relief (without the posting of any bond) as well as damages and an equitable accounting of all earnings, profits and other benefits arising from such a violation, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled.

d. If the Officer violates any of the restrictions contained in this Section 2, the restrictive period shall be extended from the time of the commencement of any such violation until such time as such violation shall be cured by the Officer to the satisfaction of the Company.

e. The invalidity or unenforceability of any provision or provisions of this Section 2 shall not affect the validity or enforceability of any other provision or provisions of this Section 2, which shall remain in full force and effect. If any provision of this Section 2 is held to be invalid, void or unenforceable in any jurisdiction, any court or arbitrator so holding shall substitute a valid, enforceable provision that preserves, to the maximum lawful extent, the terms and intent of this Agreement and shall correspondingly modify the Company?s obligations under Section 1. If any of the provisions of, or covenants contained in, this Section 2 are hereafter construed to be invalid or unenforceable in any jurisdiction, the same shall not affect the remainder of the provisions or the enforceability thereof in any other jurisdiction, which shall be given full effect, without regard to the invalidity or unenforceability in such other jurisdiction. Any such holding shall affect such provision of this Section 2, solely as to that jurisdiction, without rendering that or any other provisions of this Section 2 invalid, illegal, or unenforceable in any other jurisdiction. If any covenant contained in this Section 2 should be deemed invalid, illegal or unenforceable because its scope is considered excessive, such covenant will be modified so that the scope of the covenant is reduced only to the minimum extent necessary to render the modified covenant valid, legal and enforceable and a corresponding reduction in the scope of the Company?s obligations under Section 1 shall also be made.

COVENANT NOT TO COMPETE (35. EX-99.(D)(4) 11 dex99d4.htm NON-COMPETITION AGREEMENT)

3. Covenant Not to Compete.

(a) The Shareholder acknowledges that during the course of the Shareholder’s employment with the Company, the Shareholder has received and has been privy to confidential information and trade secrets of the Company and will continue to receive and be privy to confidential information and trade secrets of the Company and the Buyer during the course of the Shareholder’s employment following the Transaction. The Shareholder further acknowledges that the Buyer 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 confidential information and trade secrets, and to preserve the value and good will of the business being acquired by the Buyer pursuant to the Merger Agreement, the Shareholder agrees that, at all times during the Restricted Period, the Shareholder shall not, directly or indirectly:

(i) engage or participate in the development of any technologies, products or services relating to the Business (whether as an employee, agent, consultant, advisor, independent contractor, proprietor, principal, partner, stockholder, trustee, officer or director) or have an ownership or financial interest (except for ownership of one percent (1%) or less of any publicly held entity or two percent (2%) or less in any privately-held entity) in any person (as defined in the Merger Agreement) engaged in the Business, anywhere in the Restricted Territory. The phrase directly or indirectly as used herein, includes, for purposes of clarification, but is not limited to, (A) engaging in, participating in, or having an ownership or financial interest in a person engaged in the Business through one or more intermediaries under circumstances where the Shareholder provides advice or guidance on behalf of or for the benefit of such intermediary or intermediaries or any portfolio company of such intermediary or intermediaries, in either case, that engages in or participates in the Business, (B) forming any entity in order to engage in or participate in the Business, and (C) contacting marketing, channel or technology partners of the Company on behalf of any person engaged in the Business; or

(ii) take any action with the objective of interfering with the business of the Company or solicit any customers of the Company for any products or services competitive with the Business.

(b) The covenants set forth in Section 3(a) 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 set forth in Section 3(a) hereof. If, in any judicial proceeding, a court refuses to enforce any of such separate covenants (or any part thereof), then such unenforceable covenant (or such part) shall be eliminated from this Agreement to the extent necessary to permit the remaining separate covenants (or portions thereof) to be enforced. To the extent that the provisions of Section 3(a) hereof are deemed to exceed the time, geographic or scope limitations permitted by applicable law, then such provisions shall be reformed to the maximum time, geographic or scope limitations, as the case may be, permitted by applicable laws.

(c) The Shareholder acknowledges that:

(i) the Shareholder is familiar with the foregoing covenant not to compete; (ii) the covenant set forth in Section 3(a) hereof represents only a limited restraint and allows the Shareholder to pursue the Shareholder’s livelihood and occupation without unreasonable or unfair restrictions; (iii) the Shareholder is an officer, key employee, and/or key member of the management of the Company; (iv) the goodwill associated with the existing business, customers and assets of the Company prior to the Transaction is an integral component of the value of the Company to the Buyer and is reflected in any consideration payable in connection with the Transaction, including such consideration received by the Shareholder; and (v) the Shareholder’s agreement as set forth herein is necessary to preserve the value and good will of the Company for the Buyer following the Transaction. The Shareholder represents that the Shareholder is fully aware of the Shareholder’s obligations hereunder, and acknowledges that the limitations of length of time, geography and scope of activity agreed to in this Agreement are reasonable because, among other things: (A) the Company and the Buyer are engaged in a highly competitive industry, (B) the Shareholder has unique access to, and will continue to have access to, the trade secrets and know-how of the Company and the Buyer, including, without limitation, the plans and strategy (and, in particular, the competitive strategy) of the Company and the Buyer, (C) in the event the Shareholder’s employment with the Company ended, the Shareholder would be able to obtain suitable and satisfactory employment without violation of this Agreement, and (E) this Agreement provides no more protection than is necessary to protect the Buyer’s interests in the Company’s goodwill, trade secrets and confidential information.

(d) The Shareholder acknowledges that the Shareholder is subject to Buyer’s confidential information and trade secret protection policies and agrees to comply with such policies. Shareholder acknowledges that upon the Closing he will execute and deliver and will be bound by Buyer’s standard Employee Confidentiality, Intellectual Property and Computer Privacy Agreement (the CIPCP ) governing the disclosure and use of Buyer’s trade secrets and other proprietary and confidential information. Shareholder agrees that any breach by Shareholder during the Restricted Period of his obligations under the CIPCP shall also be deemed a breach of this Agreement.

(e) The Shareholder’s obligations under this Agreement shall remain in effect if the Shareholder’s employment with the Company is terminated for any or no reason.

(f) The Shareholder agrees that during the Restricted Period, prior to becoming an employee or partner of or consultant to any person (as defined in the Merger Agreement), the Shareholder shall (i) provide written notice of such employment, partnership or consultancy to the Buyer, and (ii) provide such person with an executed copy of this Agreement.

SPINCO NON-COMPETITION COVENANTS (29. EX-2.5 6 y52927exv2w5.htm EX-2.5: NON-COMPETITION AGREEMENT)

ARTICLE II

SPINCO NON-COMPETITION COVENANTS

Section 2.1 Restrictions. Subject to the exclusions, exceptions and limitations expressly set forth in this Agreement, Spinco agrees that it and its Affiliates (other than the Excluded Affiliates) (i) shall not, (ii) shall not act as a sales agent on behalf of a third Person in order to, or (iii) shall not enter into a joint venture, strategic alliance, product bundling, revenue sharing or similar arrangement with a third Person a purpose of which is to (or subsequently vote in favor of or give its consent to any modification of any such arrangement a primary purpose of which is to), publish, market, sell or distribute any Directory Products that (A) consist principally of listings and classified advertisements of subscribers in the Publisher Region and (B) are directed primarily at end users in the Publisher Region ( Spinco Restricted Activities ); provided, however, that if the Publishing Agreement is terminated with respect to any Service Area(s) (thereby causing the definition of Publisher Region to exclude such Service Area(s)), the obligations and restrictions of this Section 2.1 shall no longer apply with respect to such Service Area(s), without limiting the continued application of such obligations and restrictions with respect to the remaining Service Areas.

Section 2.2 Successor Restrictions.

(a) Subject to the exclusions, exceptions and limitations expressly set forth in this Agreement, following a Change of Control of Spinco whereby Spinco is no longer directly bound as a Party to this Agreement (e.g., because the Change of Control is a sale or transfer of assets or is the result of a transaction pursuant to which the successor, surviving or acquiring entity (the Spinco Successor ) does not automatically succeed to the obligations of Spinco by operation of law), Spinco shall require the Spinco Successor to agree in writing to assume this Agreement on substantially similar terms as are then in effect hereunder.

(b) Subject to the exclusions, exceptions and limitations expressly set forth in this Agreement, if Spinco exits any Service Area in the Publisher Region as a result of (i) a sale, assignment or other transfer of access lines, (ii) a merger or other business combination transaction with a Person in respect of access lines, or (iii) any other agreement with any third Person pursuant to which such Person shall provide local telephone service in lieu of Spinco in such Service Area (or portion thereof), and, in any of the foregoing cases, such event does not constitute a Change of Control: (A) Spinco shall, if Publisher has entered into with the acquiring Person binding agreements on terms substantially similar to the Publishing Agreement and Branding Agreement (to the extent set forth in Section 3.8(c) of the Publishing Agreement), require the acquiring Person to agree to enter into with Publisher, and Publisher shall enter into with such Person, a binding agreement on terms substantially similar to this Agreement with respect to the relevant Service Area(s) and (B) neither Publisher nor Spinco shall be released from its obligations under this Agreement other than with respect to such Service Area or portion thereof.

Section 2.3 Exceptions and Limitations.

(a) None of Spinco, the Spinco Successor or any of their respective Affiliates shall be deemed to have engaged in Spinco Restricted Activities with respect to marketing and sales by non-employee sales agents if such Person uses its commercially reasonable efforts, including establishing reasonable procedures, to restrict the activities of those of their respective agents and other distribution parties that are marketing Spinco local telephone service on an exclusive basis (e.g., the agents do not represent any other provider of local telephone service) from engaging in Spinco Restricted Activities.

(b) Publisher acknowledges and agrees that none of Spinco, the Spinco Successor or any of their respective Affiliates (including the Excluded Affiliates) shall have any restrictions on the publication, marketing, sale or distribution of Directory Products directed principally at end-users outside the Publisher Region using any brand, other than the brands SuperPages or any combination mark of SuperPages and Idearc or any other brand of Publisher or its Affiliates.

(c) Nothing contained in this Agreement shall prohibit any of Spinco, the Spinco Successor or any of their respective Affiliates (including, for the avoidance of doubt, the Excluded Affiliates) from engaging in any activity in which it is required by Law to engage in itself or through its Affiliates, including publishing or distributing White Pages to the extent permitted or required in the event of a Publishing Order, subject and pursuant to the terms and conditions of Section 3.11 of the Publishing Agreement.

(d) Nothing contained in this Agreement shall restrict the Spinco Successor from continuing to publish, market, sell or distribute (on its own behalf or on behalf of any third Person) Directory Products in those Service Areas in the Publisher Region in which it was conducting any such business at the date of execution of the agreement(s) pursuant to which such Change of Control or disposition transaction occurs; provided, however, that the Spinco Successor: (i) may not materially expand the geographic scope of such Directory Products within such Service Area(s); and (ii) beginning with the publication of any Directory Product that is printed or otherwise distributed more than 15 months after the Change of Control or disposition transaction is consummated, the Spinco Successor may not brand any such Directory Product with the brand used by Spinco or any successor of Spinco (other than the Spinco Successor) that is an incumbent local exchange carrier in the Service Areas in its capacity as the incumbent local exchange carrier in the Service Area(s) covered by such Directory Product.

(e) Nothing contained in this Agreement shall prohibit Spinco or any its Affiliates from acting as a sales agent or entering into a joint venture, strategic alliance, product bundling, revenue sharing or similar relationship with an entity that is engaged in a Spinco Restricted Activity so long as Spinco or such Affiliate (it being understood that no Person with which Spinco or any of its Affiliates enters into any relationship contemplated by this Section 2.3(e) shall be considered an Affiliate of Spinco or any of its Affiliates) is not itself engaged in any activity in connection with such relationship that is a Spinco Restricted Activity.

(f) Nothing contained in this Agreement shall prohibit Spinco or any of its Affiliates from distributing in any Service Area a de minimis number of telephone directories that cover a geographic area that does not include such Service Area.

(g) Nothing contained in this Agreement shall prohibit Spinco or any of its Affiliates from providing, directly or indirectly, products and services of any kind, delivered or accessed through the internet, over the telephone network, via CATV system or any other similar methods of transmission, including products or services that are available or accessible in the Publisher Region that contain searchable (e.g., by alphabet letter or category) multiple telephone listings and classified advertisements of Persons doing business and located in the Publisher Region.

(h) Nothing contained in this Agreement shall prohibit Spinco or any of its Affiliates from providing any tangible or intangible telephone directory product consisting principally of searchable (e.g., by alphabet letter or category of products or services) multiple wireless or mobile telephone listings and classified advertisements.

(i) Nothing contained in this Agreement shall prohibit Spinco or any of its Affiliates from providing any 411 or similar service that delivers information in the form of a voice response (live or automated), text message, web page link or download to a wireless or mobile telephone in response to a user-initiated request.

(j) The restrictions in Section 2.1 shall cease to apply to any Affiliate of Spinco at such time as such Affiliate is no longer an Affiliate of Spinco or any successor of Spinco.

(k) Nothing contained in this Agreement shall prohibit any of Spinco, the Spinco Successor or any of their respective Affiliates from holding and making passive investments in securities of any Person whose securities are publicly traded in a generally recognized market, provided that the equity interest of Spinco, the Spinco Successor or such Affiliate therein does not exceed 40% of the outstanding shares or interests in such Person and Spinco, the Spinco Successor or such Affiliate does not have effective control of management or policies of such Person.

(l) Publisher acknowledges and agrees that none of Spinco, the Spinco Successor or any of their respective Affiliates shall be under any restrictions with respect to any Voice Portal Directory.

(m) Nothing contained in this Agreement shall restrict Spinco from making an acquisition of any business that engages in activities that would, if engaged in by Spinco, constitute a violation of the restrictions contained in this Article II, so long as such activities account for less than 20% of the revenues of such business and, within two years of the date of such acquisition, Spinco disposes of (including by means of a distribution to its stockholders or placing such business in trust for sale to a third-party) or otherwise ceases, and causes its Affiliates to cease, to engage in such activities, but only to the extent conducted in the Service Areas.

(n) Nothing contained in this Agreement shall prohibit any Excluded Affiliate from providing any product or services of any kind or nature, including products or services that would otherwise constitute Spinco Restricted Activities.

COVENANTS AGAINST COMPETITION, SOLICITATION, OR DISCLOSURE OF CONFIDENTIAL INFORMATION (1. NONCOMPETITION AGREEMENT)

4. Covenants against Competition, Solicitation, or Disclosure of Confidential Information.

(a) Competition. For and in consideration of the payments described in Section 5, the Executive shall not, without the prior written consent of the Administrator, either separately, jointly, or in association with others, directly or indirectly, as an agent, employee , owner, partner, member, or stockholder or otherwise, compete with Consumers or establish, engage in, or become interested in, any business, trade, or occupation that competes with Consumers in the Financial Products or Services industry through association with a financial institution that operates a corporate headquarters within 50 (fifty) miles of a physical branch or loan office location of Consumers existent during the Executive’s employment with Consumers or is existent on the date of the Executive’s Termination of Employment. The Executive acknowledges and agrees that during the terms of the Executive’s employment the Executive has acquired special and confidential knowledge regarding the operations of Consumers. Furthermore, although not a term or condition of this Agreement, the Company, the Bank, and the Executive acknowledge and agree that the Executive services have been used and are being used by Consumers in executive, managerial and supervisory capacities throughout the areas in which Consumers does business . The Executive acknowledges and agrees that the noncompete restrictions contained herein are reasonable and fair in scope and necessary to protect the legitimate interests of Consumers. Notwithstanding anything contained in the Section 4(a) to the contrary, nothing contained herein shall be construed to prohibit the Executive from owning equity in other businesses that are competitive with Consumers; provided that, while employed by Consumers, such ownership in any competitive business does not exceed the value of the Executives equity ownership in Consumers without the prior written consent of the Administrator and does not meet or exceed five percent (5%) of the issued and outstanding equity of such competitive business.

 

(b) Solicitation. For and in consideration of the monthly payments described in Section 5, the Executive shall not (x) directly or indirectly solicit or attempt to solicit any Customer of Consumers to accept or purchase Financial Products or Services of the same nature, kind, or variety currently being provided to the Customer by Consumers or being provided to the Customer by Consumers when the Executive’s Termination of Employment occurs, (y) directly or indirectly influence or attempt to influence any Customer, joint venturer, or other business partner of Consumers to alter that person or entity’s business relationship with Consumers in any way, and (z) accept the Financial Products or Services business of any Customer or provide Financial Products or Services to any Customer on behalf of anyone other than Consumers. In addition, the Executive shall not solicit or attempt to solicit and shall not encourage or induce in any way any employee, joint venturer, or business partner of Consumers to terminate an employment or contractual relationship with Consumers, and shall not hire any person employed by Consumers during the two- (2-) year period immediately before the Executive’s Termination of Employment or any person employed by Consumers during the term of this covenant pursuant to this Section 4(b).

(c) Disclosure of Confidential Information. For and in consideration of the monthly payments described in Section 5, the Executive shall not reveal to any person, firm, or corporation any Confidential Information of any nature concerning Consumers or the business of Consumers. The covenant in this Section 4(c) does not prohibit disclosure required by an order of a court having jurisdiction, a subpoena from an appropriate governmental agency, or disclosure made by the Executive in the ordinary course of business and within the scope of the Executive’s authority.

(d) Duration; No Impact on Existing Obligations under Law or Contract. The covenants in this Section 4 shall apply during the Executive’s employment with Consumers and throughout the twelve (12) month period immediately following the Executive’s Termination of Employment, whether or not Consumers has engaged the services of the Executive pursuant to an agreement to provide consulting services upon the Executive’s Termination of Employment with Consumers; provided, however, that such twelve (12) month period shall automatically be reduced to six (6) months upon the occurrence of a Change in Control. The twelve (12) (or, if applicable, six (6)) month durational period referenced herein shall be tolled and shall not run during any such time that the Executive is in breach of this Agreement and/or in violation of any of the covenants contained herein, and once tolled hereunder shall not begin to run again until such time as all such breach and/or violations have ceased. The Executive acknowledges and agrees that nothing in this Agreement is intended to or shall have any impact on the Executive’s obligations as an officer or employee of Consumers to refrain from competing against, soliciting Customers, officers, or employees of, or disclosing Confidential Information of Consumers while the Executive is serving as an officer or employee of Consumers or thereafter, whether the Executive’s obligations arise under applicable law or under an employment agreement or otherwise.

(e) Remedies. The Executive acknowledges and agrees that remedies at law for the Executive’s breach of the covenants contained herein are inadequate and that for violation of the covenants contained herein, in addition to any and all legal and equitable remedies that may be available, the covenants may be enforced by an injunction in a suit in equity without the necessity of proving actual damage, and that a temporary injunction may be granted immediately upon the commencement of any such suit, and without notice. The parties hereto intend that the covenants contained in this Section 4 shall be deemed to be a series of separate covenants, one for each county of each state in which Consumers does business. If in any judicial proceeding a court refuses to enforce any or all of the separate covenants, the unenforceable covenants shall be deemed eliminated from the provisions hereof for the purposes of that proceeding to the extent necessary to permit the remaining separate covenants to be enforced. Furthermore, if in any judicial proceeding a court refuses to enforce any covenant because of the covenant’s duration or geographic scope, the covenant shall be construed to have only the maximum duration or geographic scope permitted by law.

(f) Forfeiture of Payments Under This Agreement. If the Executive breaches any of the covenants in this Section 4, the Executive’s right to any of the payments specified in Section 5 after the date of the breach shall be forever forfeited and the right of the Executive’s designated beneficiary or estate to any payments under this Agreement shall likewise be forever forfeited. This forfeiture is in addition to and not instead of any injunctive or other relief that may be available to the Company and the Bank. The Executive further acknowledges and agrees that any breach of any of the covenants in this Section 4 shall be deemed a material breach by the Executive of this Agreement.

COVENANT NOT TO COMPETE (32. EX-2.3 4 exhibit2-3.htm NON-COMPETITION AGREEMENT)

a) Covenant not to Compete. The Shareholder acknowledges that during the course of the Shareholder’s employment with the Company, the Shareholder has received and has been privy to confidential information and trade secrets of the Company and will continue to receive and be privy to confidential information and trade secrets of the Company and the Buyer and their affiliates during the course of the Shareholder’s employment following the Transaction. The Shareholder further acknowledges that the Buyer 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 confidential information and trade secrets, and to preserve the value and good will of the business being acquired by the Buyer pursuant to the Transaction, during the period commencing on the Closing Date and ending on the fourth anniversary of the Closing Date, neither the Shareholder nor any affiliate of the Shareholder shall compete in any manner with the Company and/or its affiliates, directly or indirectly, or own, manage, operate, control, be a consultant to, participate or have any interest in or be connected in any manner with the ownership, management, operation or control of any business with operations in the business in which the Company is engaged on the Closing Date, including without limitation of marketing, selling or underwriting of medical professional liability insurance to medical professionals and facilities, risk retention groups, or captives, or the providing of risk management, managerial or other services related thereto. This covenant shall be applicable only in any jurisdiction in which the Company or the Buyer or any of their affiliates is admitted to transact business. As used in this Agreement, an "affiliate" of the Shareholder is any corporation, partnership, association, or other business entity which directly is controlled by the Shareholder or in which the Shareholder has a controlling investment. Nothing contained in this Agreement shall be deemed to preclude the Shareholder from purchasing or owning, directly or beneficially, as a passive investment, less than five (5) percent of any class of publicly traded securities of any corporation engaged in the business in which the Company is engaged on the Closing Date, including without limitation the business of marketing, selling or underwriting of medical professional liability insurance to medical professionals and facilities, risk retention groups, or captives, or the providing of risk management, managerial or other services related thereto so long as the Shareholder does not actively participate in or control, directly or indirectly, any investment or other decisions with respect to such corporation.

The covenants set forth in this Section 4(a) shall be construed as a series of separate covenants, one for each country, province, state, city or other political subdivision. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the covenants set forth in this Section 4(a). If, in any judicial proceeding, a court refuses to enforce any of such separate covenants (or any part thereof), then such unenforceable covenant (or such part) shall be eliminated from this Agreement to the extent necessary to permit the remaining separate covenants (or portions thereof) to be enforced. To the extent that the provisions of this Section 4(a) are deemed to exceed the time, geographic or scope limitations permitted by applicable law, then such provisions shall be reformed to the maximum time, geographic or scope limitations, as the case may be, permitted by applicable laws.

The Shareholder acknowledges that:(i) the Shareholder is familiar with the foregoing covenant not to compete; (ii) the covenant set forth in this Section 4(a) represents only a limited restraint and allows the Shareholder to pursue the Shareholder’s livelihood and occupation without unreasonable or unfair restrictions; (iii) the Shareholder is an officer, key employee, and/or key member of the management of the Company; (iv) the goodwill associated with the existing business, customers and assets of the Company prior to the Transaction is an integral component of the value of the Company to the Buyer and is reflected in the consideration payable in connection with the Transaction, including such consideration received by the Shareholder; and (v) the Shareholder’s agreement as set forth herein is necessary to preserve the value and good will of the Company for the Buyer following the Transaction. The Shareholder represents that the Shareholder is fully aware of the Shareholder’s obligations hereunder, and acknowledges that the limitations of length of time, geography and scope of activity agreed to in this Agreement are reasonable because, among other things: (A) the Company and the Buyer are engaged in a highly competitive industry, (B) the Shareholder has unique access to, and will continue to have access to, the trade secrets and know-how of the Company and the Buyer, including the plans and strategy (and, in particular, the competitive strategy) of the Company and the Buyer, (C) in the event the Shareholder’s employment with the Company ended, the Shareholder would be able to obtain suitable and satisfactory employment without violation of this Agreement, and (D) this Agreement provides no more protection than is necessary to protect the Buyer’s interests in the Company’s goodwill, trade secrets and confidential information.

NON-COMPETITION COVENANT (68. NON-COMPETITION AGREEMENT)

SECTION 3. NON-COMPETITION COVENANT.

(a) If Travelers elects to exercise its Non-Competition Option in accordance with Section 3(c)(i), then, during the Restricted Period in the Restricted Territory, Employee shall not, directly or indirectly, in any manner or capacity, including without limitation as a proprietor, principal, agent, partner, officer, director, stockholder, employee, member of any association, consultant or otherwise, (i) perform services for or have any ownership interest in (1) any entity that, taken together with its affiliates, is primarily engaged in the Business, or (2) any business, business unit or division that is primarily engaged in the Business (in each case, a Restricted Entity ) or (ii) engage in the Business. If Travelers elects to exercise (or is deemed to have exercised) its Waiver Option (as defined in Section 3(c)(ii)), then this Section 3(a) shall not apply.

(b) Notwithstanding the foregoing, the following shall not constitute non-compliance with this Agreement or a breach of Section 3(a): (i) ownership by Employee, as a passive investment, of less than 5.0% of the outstanding voting shares of any entity, (ii) performing services for or having an ownership interest in an entity (other than a Restricted Entity) that is engaged in the business of acting as an agent or broker (including those engaged in the distribution of property and casualty insurance) so long as Employee is not actively engaged in underwriting, claims, investment activities or third party administration, in each case, relating to property and casualty insurance, (iii) seeking and/or accepting (and taking any action in furtherance of seeking and/or accepting, including discussions regarding potential investment) any position or relationship with an entity that would otherwise breach Section 3(a), so long as such position, relationship or investment or any services related thereto does not commence before the end of the Restricted Period and (iv) non-compliance with Section 3(a) that is isolated, unintentional and immaterial.

(c) Travelers shall, in its sole discretion, have the right to:

(i) elect to enforce the provisions of Section 3(a) if and only if a Travelers entity notifies Employee in accordance with Section 4 no later than five (5) business days following the first business day after the Separation Acknowledgement Date that Travelers elects to enforce such provisions (the Non-Competition Option ); or

(ii) waive the provisions of Section 3(a) by a Travelers entity notifying Employee in accordance with Section 4 no later than five (5) business days following the first business day after the Separation Acknowledgement Date that Travelers elects to waive the provisions of Section 3(a) or by failing to provide Employee with notice under Section 3(c)(i) within the period specified therein (in either case, the Waiver Option ).

(d) Employee hereby acknowledges that the provisions of this Non-Competition Agreement are reasonable and necessary to protect the legitimate interests of Travelers, including without limitation, Travelers trade secrets, customer and supplier relationships, goodwill and loyalty, and that any violation of this Non-Competition Agreement by Employee would cause substantial and irreparable harm to Travelers such that monetary damages alone would be an inadequate remedy. Therefore, in the event that Employee violates any provision of this Non-Competition Agreement, Travelers shall be entitled to (i) an injunction (incorporating the provisions of Section 3(e)) restraining Employee from violating or continuing to violate the provisions of this Non-Competition Agreement, (ii) withhold payments not yet made and/or shares of stock not yet issued, in each case, that may (assuming satisfaction of the conditions in Section 3(g)) be subject to forfeiture and/or recapture under Section 3(d)(iii) and (iii) forfeiture (and, if applicable, recapture) of any amounts, benefits and awards hereunder, under Travelers employee severance plans or agreements and under any individual separation arrangement. The foregoing remedies shall be Travelers sole and exclusive remedies for a violation of this Non-Competition Agreement.

(e) Notwithstanding anything herein to the contrary, if Employee breaches any of the provisions of Section 3(a), and if (and only if) Travelers brings legal enforcement action during the Restricted Period and (either during or after the Restricted Period) injunctive relief is ordered by a court of competent jurisdiction after an evidentiary hearing or there has been a final non-appealable adjudication by a court of competent jurisdiction that Employee has breached a provision of Section 3(a), then one day of additional time shall be added to the restriction (and to the definition of Restricted Period) for each day of noncompliance, up to a maximum of six (6) months, so that Travelers is given the benefit of Employee’s compliance with the restriction for six (6) months.

(f) Notwithstanding anything herein to the contrary, Travelers may seek to exercise its remedy under Section 3(d) to withhold payments not yet made and/or shares of stock not yet issued to Employee only if a Travelers entity shall have commenced legal enforcement action by the time payment would have otherwise been payable.

(g) Notwithstanding anything herein to the contrary, Travelers shall only be entitled under Section 3(d) to the remedies of forfeiture and/or recapture if (i) there has been a final non-appealable adjudication by a court of competent jurisdiction that Employee has breached any provision of this Non-Competition Agreement and (ii) a Travelers entity shall have commenced legal enforcement action within twelve (12) months of the Termination Date. Employee shall pay over to Travelers promptly following notice to Employee in accordance with Section 4 any amounts, benefits and awards that are subject to recapture as provided in the previous sentence. If Travelers seeks to exercise its remedy to recapture the compensatory value received under Section 1(a) more than three (3) years after the date hereof, then such value shall be deemed to be $10,000.

(h) Travelers shall be deemed to have commenced legal enforcement action under Sections 3(e), (f) and (g) if it shall have notified Employee in accordance with Section 4 of intent to seek enforcement followed within twenty-one (21) days by the commencement of a formal enforcement action.

NON-COMPETITION (67. NON-COMPETITION AGREEMENT (CHINA))

2. NON-COMPETITION

2.1 The Executive acknowledges that during the period of time the Executive was working for Watts Shanghai, the Executive has developed or may have helped develop, have access to and learn significant secret, confidential, and proprietary information relating to the business of Watts Shanghai and/or its Affiliates. In addition, the Executive has been or was provided with contact with customers, prospective customers, suppliers and other vendors of Watts Shanghai and/or its Affiliates. The Executive has been expected to develop good customer and/or vendor relationships, as well as intimate knowledge regarding the technology, products, services, systems, methods, and operations Watts Shanghai and/or its Affiliates

2.2 The Executive also acknowledges that Watts Shanghai and/or its Affiliates have invested substantial resources and time to developing the technology, products, services, systems, methods, and operations, all of which are highly valuable assets to the Watts Shanghai and/or its Affiliates. The Executive agree that the Watts Shanghai and/or its Affiliates have spent and will continue to spend substantial effort, time, and resources in developing and protecting its technology, products, services, systems, methods, and operations, and relationships with its customers and vendors. The Executive also agree that the competitors of Watts Shanghai and/or its Affiliates would obtain an unfair advantage if the Executive were to disclose the Confidential Information of Watts Shanghai and/or its Affiliates to a competitor, used it on a competitor’s behalf, or if the Executive were able to exploit the relationships the Executive developed in his role with Watts Shanghai and/or its Affiliates to solicit business on behalf of a competitor.

2.3 In view of the Confidential Information of Watts Shanghai, which the Executive has had access to during the period of time the Executive was working for Watts Shanghai, the Executive agrees that for a period of nine (9) months following the Termination Date ( Non-Compete Term ), for any reason, the Executive will not directly or indirectly, on his own behalf, or as an employee, representative or agent of a third party, by ownership or any type of interest in any business enterprise, or by any other means whatsoever, engage in any business located in or otherwise engaging in business in the PRC that designs, manufactures or sells water-based heating, ventilation or air conditioning ( HVAC ) products, water distribution products, water safety products or flow control products primarily for the HVAC, water distribution, water quality, water safety, water flow control or water conservation markets (collectively, a Competitor’s Business ), or become associated with or render services to a Competitor’s Business so engaged.

COVENANTS (31. NON-COMPETITION AGREEMENT)

SECTION 1. Covenants.

SECTION 1.1 Covenant Against Competition. During the period commencing the date hereof and terminating on the third anniversary of the date of this Agreement, the Stockholder shall not, directly or indirectly, either alone or in association with others, anywhere within the world, other than in the performance of his or her duties as an employee or consultant of Parent or its affiliates:

(a) engage, in any way or to any extent, in the Business;

(b) whether as a principal, consultant, partner or in any other capacity, own, manage, control or participate in the ownership, management or control of, or render services directly related to, any person, corporation, partnership, proprietorship, firm, association or other business entity engaged in any way and to any extent in the Business or any other activities that are competitive with the Business;

(c) induce, request or encourage any employee, consultant, officer or director of Parent or its affiliates to terminate any such relationship with Parent or such affiliate;

(d) employ, cause to be employed, or assist in or solicit the employment of any employee, consultant, officer or director of Parent or its affiliates while any such person is providing services to Parent or its affiliates or within six months after any such person ceases providing services to Parent or its affiliates; or

(e) solicit, divert or appropriate, or assist in or attempt to solicit, divert or appropriate, any customer or supplier, or any potential customer or supplier, of Parent or its affiliates for the purpose of competing with the Business.

Notwithstanding any provision of this Agreement to the contrary, the Stockholder may own, directly or indirectly, securities of any entity having a class of securities registered pursuant to the Securities Exchange Act of 1934, as amended (the Exchange Act ) which engages in a business competitive with the Business, provided that the Stockholder does not, directly or indirectly, individually or in the aggregate (including without limitation by being a member of a group within the meaning of Rule 13d-5 under the Exchange Act) own beneficially or of record more than one percent (1%) of any class of securities of such entity. For purposes of this Agreement, the term affiliate shall have the meaning ascribed to such term in Rule 405 under the Securities Act of 1933, as amended.

Notwithstanding anything to the contrary set forth in Section 1.1 above, if the Shareholder’s employment under the Employment Agreement is terminated by the Employer without cause or by the Stockholder due to a material breach by the Employer of the Employment Agreement, then this Section 1.1(a) and Section 1.1(b) shall apply to the Stockholder only for so long as the Stockholder is receiving severance pay due under the Employment Agreement or Base Salary pursuant to the following sentence. Notwithstanding anything to the contrary in the Employment Agreement, the Employer shall have the right to pay the Stockholder his Base Salary to extend the period of non-competition for as long as Employer determines, in the sole exercise of its discretion, but in no event beyond the Term Expiration Date.

This Agreement shall survive and be enforceable whether or not any compensatory payment is made if the Stockholder’s employment is terminated (i) for cause or (ii) if the Stockholder resigns for any reason other than a material breach by the Employer of the Employment Agreement.

SECTION 1.2 Covenant Regarding Confidentiality. The Stockholder shall maintain in confidence and shall not, without the prior written consent of Parent, use, disclose or give to others, any fact or information regarding the business of Parent and its affiliates (including the Business), which is not generally available to the public (including but not limited to information and facts concerning business plans, cost and pricing policies, customers, customer profiles, future customers, suppliers, licensors, licensees, partners, investors, affiliates or others, training methods and materials, financial information, sales prospects, client lists, vendor lists, documentation, algorithms, software methodologies, source code listings, inventions or any other technical, trade or business secret or confidential or proprietary information of Parent, any customer or supplier of Parent or the affiliated entities of Parent, or of any third party provided to the Stockholder in the course of the Stockholder’s relationship with Parent. Notwithstanding anything contained herein to the contrary, the foregoing restrictions shall not apply to any information which is: (a) presently publicly available or a matter of public knowledge, public record or public domain generally; (b) lawfully received by the Stockholder from a third party who is or was not bound in any confidential relationship to Parent; (c) is or becomes generally available to the public through no act or omission of, or breach of this Agreement by the Stockholder; (d) approved for release by written authorization of Parent, but only to the extent of such authorization; (e) required by law or regulation to be disclosed, but only to the extent, and for the purposes of, such required disclosure; or (f) disclosed in response to a valid order of a court or other governmental body of any country or jurisdiction in which the Stockholder is performing services for Parent, or any political subdivisions or agencies thereof, but only to the extent of, and for the purposes of, such order, and in the case of clauses (e) and (f) only if the Stockholder first notifies Parent of the order and permits Parent a reasonable opportunity, to the extent practicable, to seek a protective order.

NON-COMPETITION (14. Non-Compete Agreement)

7. Non-Competition

a. During my employment with the Company beginning with the effective date of this Agreement and for a period of one (1) year after said employment is ended for any reason, including but not limited to the termination of my employment due to inadequate performance and regardless of whether such termination is initiated by the Company or by me, I shall not within a seventy-five (75) mile radius of the Company’s headquarters in Ephrata, Pennsylvania and/or its offices in Reading, Pennsylvania and State College, Pennsylvania, directly or indirectly, compete with the Company in any business conducted by the Company at the time that employment ends.

b. I shall be deemed to be competing with the Company if, among other things, I engage in or become interested in, directly or indirectly, as a sole proprietor, partner, shareholder, stockholder, member, lender, employee, consultant or advisor (for fee, profit, or otherwise), director, officer, clerk, principal, agent or trustee, or in any other individual or representative capacity whatsoever, in any firm, corporation or other enterprise engaging in any business conducted by the Company at the time of my termination of employment with the Company.

c. I understand and agree that I shall not be considered to have breached this Agreement by reason of ownership of securities of any corporation, which securities are traded on any recognized United States stock exchange or in the over-the-counter market, if the aggregate amount of the securities of any such corporation which I might own does not exceed, in the case of any equity securities, five percent (5%) of the total equity represented by all equity securities of such corporation at the time outstanding, or in the case of any debt securities, five percent (5%) of the unpaid principal amount of any such debt securities at the time outstanding.

d. As examples of the foregoing, and not in limitation thereof, during the period of non-competition and within the geographic territory described in paragraph 7a above, I shall not directly or indirectly solicit or contact in any way, on behalf of myself, or on behalf of or in conjunction with others, any client, customer or prospective client or customer of the Company, for the purpose of developing competing solutions or selling or servicing products sold or provided by the Company, or related technical learning or training services.

e. I further agree that during such one (1) year period, I will not intentionally or maliciously prejudice any of the prospects, existing accounts, customers or good will presently or previously served or enjoyed by the Company. I also agree that I will not, during such one (1) year period, disparage or criticize the Company, or its directors or officers, in any communication of whatever nature with any third parties, including but not limited to directors of the Company, its vendors, customers, suppliers and employees.

f. While employed by the Company and for one (1) year thereafter, I shall not, for myself or any other employer, person, firm or corporation, either directly or indirectly, or in any manner whatsoever, alienate, solicit or employ, or attempt to alienate, solicit or employ, any of the Company's present employees, former employees subject to the foregoing or similar non-competition provision, customers or persons doing business with the Company.

g. If any court shall determine that the duration, scope or geographical restrictions contained herein are unenforceable, it is the intention of the parties that the non-competition provision set forth herein shall not thereby be terminated but shall be deemed amended to the extent required to render it valid and enforceable. Such amendment shall apply only with respect to the operation of this provision in the jurisdiction of the court which has made the adjudication.

h. I acknowledge that the restrictions contained herein are reasonable and necessary for the protection of the Company's legitimate business interests and that any violations of these restrictions would cause immediate, substantial and irreparable injury to the Company and/or its customers. In the event of any violation of these non-competition provisions, I agree that remedies at law will be insufficient to remedy such violations and that therefore the Company shall be entitled, in addition to remedies at law, to preliminary and permanent injunctive relief, attorneys' fees, costs, and expenses and any other remedies at law and in equity. If the Employee breaches the terms of the Non-Competition or the Confidential Information provisions of this Agreement, the Company shall have no further obligation to provide the Employee with the severance payment described in Paragraph 10 of this Agreement.

i. I acknowledge and agree that the covenants set forth above are essential and material parts of this Agreement and that their terms fairly and reasonably balance my right to earn a living and the Company's need and right to protect its good will, competitive advantage, and confidential information.

NON-COMPETITION (12. NON-COMPETITITON AGREEMENT)

ARTICLE 3

NON-COMPETITION

3.1 Non-Competition

For a period commencing on the Closing Date and continuing thereafter until the seventh anniversary of the Closing Date (the Restricted Period ), the Vendor agrees that it shall not, directly or indirectly, whether through a corporation, subsidiary or otherwise, individually or in partnership, jointly or in conjunction with any person, firm, association, syndicate, corporation or any other entity, whether as principal, agent, employer, consultant, partner, or otherwise, do any of the following without the consent of SSAG:

(a) compete with the Current Business Acquired by SSAG within the Territory;

(b) lend money to, guarantee the debts and obligations of, invest in, or have any other interest in (whether financial or otherwise) any person or entity engaging in any business within the Territory which is competitive with the Current Business Acquired by SSAG;

(c) directly or indirectly solicit or attempt to solicit any employee of the Corporation for the purpose of encouraging, enticing, or causing said employee to terminate employment with the Corporation;

(d) directly or indirectly solicit or attempt to solicit, without the prior written consent of SSAG, not to be unreasonably withheld, any business or non-employee of SSAG providing consulting, marketing or other services to the Corporation or to not provide or cease to provide such services to the Corporation;

(e) directly or indirectly take any action which could reasonably result in the relations between the Corporation and its suppliers or customers to be impaired; or

(f) directly or indirectly take any action which could reasonably be foreseen to be detrimental to the Corporation, except that the Vendor may exercise or enforce any of its rights and remedies against the Corporation arising under this Agreement, the Purchase Agreement, the Transaction Agreements or any other agreements entered into between the Vendor and the Corporation.

Notwithstanding anything in this Agreement to the contrary, the parties acknowledge and understand that the Vendor may continue, without restriction hereunder, (a) to market to third parties 6-OXO, 11-OXO, 1-AD and Geranamine as ingredients, and not as stand alone products, that, when combined with other active ingredients, render such third party formulations distinctively different from any of the Products (provided that the Corporation acknowledges that all third party products containing any of the aforementioned ingredients of the Vendor as of the date of this Agreement constitute distinctively different formulations), (b) to develop and sell under its own label or otherwise any products to be marketed outside of the sports nutrition market, and (c) subject to the terms of that certain Right of First Refusal Agreement dated of even date herewith by and between the parties, to market any new proprietary ingredient, whether as a stand alone product or an ingredient, in the sports nutrition market or otherwise.

3.2 Material Interest

The Vendor agrees that the Corporation has a material interest in preserving the relationships the Current Business Acquired by SSAG has developed with customers against impairment by competitive activities of an existing or former director, officer, employee, consultant or shareholder and Vendor shall use reasonable commercial efforts to preserve such relationships for the benefit of the Corporation. Accordingly, the Vendor agrees that the restrictions and covenants in Articles 2 and 3 and the Vendor’s agreement to such restrictions and covenants as evidenced by its execution of this Agreement constitute a material inducement to SSAG entering into this Agreement and the Purchase Agreement and that SSAG would not enter into this Agreement nor the Purchase Agreement absent these inducements.

3.3 Independent Covenants

The Vendor agrees that the restrictions and covenants contained in Articles 2 and 3 are reasonable and necessary for the protection of the Corporation and each shall be construed independently of any provisions of this Agreement and the existence of any claim or cause of action by the Vendor against the Corporation, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Corporation of the covenants or restrictions in this Agreement; provided however, that if any provision shall be held to be illegal, invalid or unenforceable in any jurisdiction, this decision shall not affect any other covenants or provisions of this Agreement or the application of any other covenant or provision in respect of each year during which the other covenants or provisions are to continue.

COVENANTS OF DEWEES (66. Magnetech DeWees Non-Compete Agreement)

3. Covenants of DeWees.

(a) Covenants Against Competition and Solicitation. DeWees agrees that he will not, for the Prohibited Period (as defined below), without the express written consent of Company, unless there has been a default by the Company under the Lease or the Note that has not been cured in the period of time allowed for cure in the Lease:

(i) Directly or indirectly, as a proprietor, officer, employee, partner, stockholder, consultant, agent, owner or otherwise, work for, render assistance or services to or otherwise participate in any business that competes with or engages in business substantially similar to the Business anywhere within the Prohibited Territory (as defined below);

(ii) Directly or indirectly, induce, hire or solicit or seek to induce, hire or solicit any person who was engaged with 3-D as an employee, agent, independent contractor or otherwise at any time within one year before the Closing Date to end his or her engagement or employment with Company; or

(iii) Either for himself or for any other person, firm, corporation or entity, solicit, divert or accept, or attempt to solicit, divert or accept any persons or entities which were customers or suppliers of 3-D at any time within one year before the Closing Date.

For purposes of this Agreement, the Prohibited Territory means anywhere within a one thousand (1000) mile radius of each of 3-D’s locations (in Massillon and Cincinnati), unless that geographic restriction is deemed to be of unreasonably broad scope, and therefore unenforceable, by a court of competent jurisdiction, in which case the next sentence shall define the Prohibited Territory. The Prohibited Territory means anywhere within a five-hundred (500) mile radius of each of 3-D’s locations (in Massillon and Cincinnati), unless that geographic restriction is deemed to be of unreasonably broad scope, and therefore unenforceable, by a court of competent jurisdiction, in which case the next sentence shall define the Prohibited Territory. The Prohibited Territory means anywhere within a two-hundred-fifty (250) mile radius of each of 3-D’s locations (in Massillon and Cincinnati).

The term Prohibited Period shall be defined as a period of two (2) years from and after the Closing Date as defined in the Membership Interest Purchase Agreement.

(b) Reasonableness of Covenants. DeWees acknowledges and agrees that the temporal, geographic and other limitations contained in this Section 3 are reasonable and necessary for the proper protection of Magnetech’s investment in the Membership Interests of 3-D and shall be enforceable to the fullest extent permitted by law.

(c) Modification. In the event that any term, provision or covenant contained in this Section 3 is found to be unreasonable, and therefore unenforceable, by a court of competent jurisdiction, but would be valid and enforceable if any part thereof were deleted or otherwise modified, then the parties expressly agree that a court may limit the application of, or modify any such term, provision or covenant and proceed to enforce such term, provision or covenant as so limited or modified.

NON-COMPETE (53. EX-10.36 4 c23312exv10w36.htm NON-COMPETITION AGREEMENT)

1. Non-Compete. While Employee is working for the Company and, if Employee voluntarily resigns, or departs from the Company under circumstances where Employee receives severance payments from the Company, then also for the Non-competition Period (defined below) following his/her departure, Employee will not:

(i) directly or indirectly own, manage, control, participate in, be a director, officer or employee of, lend Employee’s name to, act as consultant or advisor to, render services to, or receive compensation from, any other person or entity engaged or seeking to engage in the television home shopping business (including a television home shopping channel internet site) anywhere within the United States;

(ii) induce or attempt to induce any employee of the Company to leave his or her employment with the Company, or in any other way interfere with the relationship between the Company and any other employee of the Company; or

(iii) induce or attempt to induce any customer, vendor, franchisee, licensee, or other business relation of the Company to cease doing business with the Company, or in any way interfere with the relationship between such party and the Company.

For purposes of this Agreement, Non-competition Period shall mean the period commencing as of the date of this Agreement and ending on the last day of the twelfth (12th) month following the last day of the month in which Employee’s employment with the Company ends.

COVENANT AGAINST COMPETITION (59. NON-COMPETITION AGREEMENT)

2.1 Covenant Against Competition

During the period commencing the date hereof and terminating on the Termination Date:

2.1.1 each Covenantor shall not, directly or indirectly, either alone or in association with others, anywhere within the world, other than in the performance of his or her duties as an employee or consultant of NeuMedia or its affiliates knowingly, directly or indirectly, engage in any business with a Midstream Party; and

2.1.2 Cresswell and MacLeitch will not knowingly, directly or indirectly, consult with or do business with, advise, be a partner service provider, purchase goods of, joint venturer with, be a director or managing member of, or otherwise assist or provide services to, any Midstream Party

PROVIDED THAT this agreement shall not in any way limit or restrict Cresswell, MacLeitch or Newco from engaging in an adult mobile advertising network or otherwise competing with any Midstream Party or from indirectly buying advertising from any Midstream Party without prejudice to NeuMedia's right to refuse to carry on business with a Midstream Party selling advertising to any Covenantor.

NON-COMPETE PROVISIONS (17. EX-10.22 5 dex1022.htm FORM OF NON-COMPETITION AGREEMENT)

2. Non-Compete Provisions.

a. For the purpose of this Non-Competition Agreement, Competitive Activities are:

i. producing, developing, selling or marketing, or assisting others to produce, develop, sell or market;

ii. engaging in any sales, marketing, research and development or managerial duties (including, without limitation, financial, human resources, strategic planning, or operational duties), whether as an employee, consultant, or otherwise, for any entity which produces, develops, sells or markets;

iii. owning, managing, operating, controlling or consulting for any entity which produces, develops, sells or markets; or

iv. soliciting the business of any person, company, firm, or corporation who is or was a customer of International Paper or active prospective customers of International Paper within twelve (12) months prior to the termination of my employment; for

any product, process, or service that is competitive with those products, processes, or services of International Paper, whether existing or contemplated for the future, concerning which I have in any manner acquired knowledge, trade secrets or confidential information during the twenty-four (24) months preceding termination of my employment.

b. While an employee of International Paper, I agree not to engage in any Competitive Activities or prepare to engage in any Competitive Activities in any manner, either directly or indirectly, whether for compensation or otherwise, with International Paper, or to assist any other person or entity to compete or to prepare to compete with International Paper.

c. I agree that for twelve (12) months after the date of termination by either party of the employment for any reason (the Non-Compete Period ), I shall not, directly or indirectly, commit, participate in or facilitate any of the Competitive Activities for any entity that is competitive with International Paper.

d. I shall not assist others in engaging in activities that I am not permitted to undertake.

NON COMPETITION (34. NON-COMPETE AGREEMENT)

1. During the Term (as defined below), Seller shall not, and shall cause its Affiliates not to, directly or indirectly, participate or engage in the Business, or acquire, own, invest in, provide credit or other financial accommodations (other than credit or other financial accommodations provided by Seller to its customers in the ordinary course of business) to, or otherwise assist, any Person (other than any of the Acquired Companies, Buyer or Buyer Parent) anywhere in the United States that engages in the Business (as defined below). During the Term, with respect to the employees of the Business (the Employees ) and any of the customers of the Business (such customers, together with the Employees, the Company Contacts ), Seller shall not, and shall cause its Affiliates not to, directly or indirectly, without Buyer’s prior written consent, solicit or otherwise interfere with the relationship between any of the Acquired Companies and any Company Contact, for as long as such Company Contact maintains its relationship with the Business; provided, that the foregoing prohibition with respect to the solicitation of Employees shall not prohibit Seller or its Affiliates from placing any general advertisements in newspapers and/or other media of general circulation (including, without limitation, advertisements posted on the Internet) that are not targeted specifically at any Employee or Employees (a General Solicitation ). In addition, Seller shall not, and shall cause its Affiliates not to, during the Term, without Buyer’s prior written consent, hire any Employee formerly employed in the Business within six (6) months of the termination of such Employee’s relationship with the Business. Additionally, during the Term, Seller shall not, and shall cause its Affiliates not to, interfere with the relationship between any of the Acquired Companies and any supplier of the Business. Ownership by Seller, as a passive investment, of less than 5% of the outstanding shares of capital stock of any entity listed on NASDAQ or traded on a national securities exchange or publicly traded in the over-the-counter market shall not constitute a breach of this Section 1. Notwithstanding anything contained in this Agreement to the contrary, none of the restrictions contained in this Agreement shall be applicable to any of the non-employee members of the Board of Directors of Seller or any of their respective Affiliates (other than Seller), including, but not limited to, Costa Brava Partnership III, L.P., Roark, Reardon & Hamot, LLC, and Emancipation Capital LLC.

For purposes of this Agreement, the following terms shall have the indicated meanings:

Business shall mean the business of the Acquired Companies as conducted by the Acquired Companies on the date hereof, including, without limitation, the business of providing, whether as a prime contractor, subcontractor or otherwise, information technology-based and other professional services to (i) Governmental Authorities and (ii) the commercial customers set forth on Schedule 3.14 to the Stock Purchase Agreement, which such schedule is incorporated herein by reference as if fully set forth herein.

Seller Change of Control shall mean any transaction or series of related transactions (collectively, an Ownership Change Event ) (i) that results in any Person becoming the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), together with all Affiliates (as such term is defined in Rule 12b-2 of the Exchange Act) of such Person, of more than fifty percent (50%) of the then issued and outstanding voting stock or other voting equity or ownership interest of Seller, (ii) that results in the sale or other disposition of all or substantially all of Seller’s operating assets (excluding cash and cash equivalents) to another Person or Persons (other than any Affiliate of Seller or any Person or Persons fifty percent (50%) or more of the total combined voting power of which is directly or indirectly beneficially owned by the stockholders of Seller immediately before the Ownership Change Event in substantially the same proportion as their ownership of Seller’s voting stock immediately before the Ownership Change Event) or (iii) that results in the consolidation or merger of Seller with or into another Person or Persons wherein the stockholders of Seller immediately before the Ownership Change Event do not retain, immediately after the Ownership Change Event, in substantially the same proportions as their ownership of shares of Seller’s voting stock immediately before the Ownership Change Event, direct or indirect, beneficial ownership of at least fifty percent (50%) of the total combined voting power of the issued and outstanding voting stock or other voting equity or ownership interest of Seller or any successor by consolidation or merger.

Term shall mean the period beginning on the Closing Date and ending upon the earlier of (i) the fifth (5th) anniversary of the Closing Date, or (ii) a Seller Change of Control (other than the Contemplated Transactions).

NON-COMPETITION (3. NON-COMPETITION AGREEMENT)

3. Non-Competition

The Seller covenants and agrees that for a term of three years as of Closing Date, whether directly or indirectly, alone or together with any other persons, on its own account or in conjunction with, through or on behalf of any Affiliates, relatives, agents, intermediaries, joint ventures or alliances, whether as director, manager, shareholder, consultant, subcontractor or in any other capacity:

(i) it will not own, manage, operate or control, or have a material commercial interest in the ownership, management, operation or control of, any business or activities in the Market Area engaging to a material extent in the Competitive Activities (as defined below);

(ii) it will not (A) intentionally induce or attempt to induce any person who is an employee, trade representative, manager, consultant, independent contractor or sub-contractor of the Company to stop its cooperation with the Company, (B) intentionally interfere with the relationship between the Company and any person who is an employee, trade representative, manager, consultant, independent contractor or sub-contractor of the Company, or (C) intentionally employ or otherwise engage as employee, independent contractor, or otherwise any person who is an employee, manager or director of the Company;

(iii) it will not, either for itself or for any other person (A) solicit, service or handle any business or matters involving Competitive Activities, other than as contemplated by the Stock Purchase Agreement, or (B) induce or attempt to induce any customer or other person to cease doing business involving Competitive Activities with the Company, or in any way interfere with the relationship between the Company and any customer or other person with respect to the performance of Competitive Activities, other than as contemplated by the Stock Purchase Agreement; and

(iv) it will not carry on business either directly or indirectly through any company under any name which is identical or confusingly similar to the names currently used by the Company (except for the name Rogers ) as its corporate name or under which it carries on business.

As used herein, the term Competitive Activities shall mean one or a series of related acts of manufacture and/or sale of multilayer laminates comprised of layers of any of the following products: polyethylene terephthalate (PET), polyethylene naphthalate (PEN), polyvinyl chloride (PVC), Mylar or Tedlar whether in multiple layers of any one or more such materials (but not a single layer alone), or in combination with aluminum, copper and/or adhesives (all of which are collectively referred to herein as Laminates ), for use in one of the following applications:

(a) cable shielding

(b) green house coverings,

(c) heating elements for waterbed, wall-mounted room warmers and automotive mirror applications,

(d) barrier tube manufacturing,

(e) RFID tags,

(f) antennae used in mobile phones, including internet-connected multimedia smartphones, and wireless handheld devices such as RIM Blackberry devices and any devices incorporating mobile phone capabilities even if they also include portable music and/or video player capabilities, but excluding portable music and/or video players and similar devices, such as MP3 players and iPOD’s (and any devices incorporating such devices or the functional equivalent thereof, so long as they do not possess telecommunications capabilities),

(g) laminated busbars, and

(h) seat sensors in the automotive industry.

The above applications are not intended as an exhaustive list of all possible or even actual applications for the Company's technology, but rather an enumeration of those applications in which the Company's current business is sufficiently significant that the Sellers have agreed not to compete therein. Nothing herein shall be construed to restrict Seller from manufacturing and/or selling any materials other than Laminates, even in the applications listed above. The parties acknowledge that Seller is a large organization with operations in many of the applications set forth above, among others, and does not intend to restrict its manufacturing and sales other than for Laminates in those applications set forth above (it being understood that the term Laminates in no event shall be construed to include film other than Mylar or Tedlar or any polymer other than PET, PEN or PVC and specifically excludes, without limitation, polyimides, polybutadine, liquid crystal polymers and fluoropolymers (including PTFE) as well as or any laminate construction including a layer of polyimide, polybutadiene, liquid crystal polymer or fluoropolymer (including PTFE).

Nothing herein shall be deemed to prevent Seller and/or its Affiliates from acting within the permitted scope of that certain Production License of even date herewith by and between Seller and the Company permitting Seller and/or its Affiliates to manufacture, solely for its and its Affiliates own use and not for resale (except as incorporated in other products sold by Seller to third parties), laminates used in insulation of bus bars manufactured by Seller and/or its Affiliates. The above description is for convenience only, and is qualified in its entirety by the actual content of said Production License.

NON-COMPETITION (25. EX-10.2 4 dex102.htm NON-COMPETITION AGREEMENT)

2. Non-Competition.

(a) Shareholder and the Company agree that due to the nature of Shareholder’s past and continuing association with APP, Shareholder has received and is knowledgeable about, and will continue to receive, confidential and proprietary information relating to the business and operations and the relationships with employees, customers and suppliers of APP and its Affiliates. Shareholder acknowledges that such information is of extreme importance to the business of APP and the Company, and will be of extreme importance to APP and the Company after the Merger.

(b) Shareholder and the Company further agree that the market for APP Generic Pharmaceutical Products is intensely competitive and that APP engages in the Business throughout the United States and Canada.

(c) During the period which shall commence at the time of the Closing and shall terminate four (4) years from the Effective Date (the Restricted Period ), Shareholder shall not, without prior written consent of the Company, with such permission to be given in the Company’s sole and absolute discretion, directly or indirectly (including without limitation, through any Affiliate (as defined below) of Shareholder), own, manage, operate, control or otherwise engage or participate in, or be connected to, as an owner, partner, principal, creditor, salesperson, advisor, member of the board of directors of, employee of, or consultant to, any company, business, venture or any division, group or other subset of a company, business or venture that engages in any substantive part of the Business in which APP is engaged at the time of the Merger (each a Competitor ) within the Restricted Area (as defined below) (such activities, the Restricted Activities ); provided, however, that the following shall not constitute Restricted Activities and this section shall not prohibit Shareholder from directly or indirectly (including without limitation, through any Affiliate (as defined below) of Shareholder) (i) owning, managing, operating, controlling or otherwise engaging in, participating in or being connected to developing, in-licensing, manufacturing, selling, marketing and/or distributing biosimilar, follow-on biologics, generic biologic products or oxaliplatin or enoxaparin or dalteparin, provided that Shareholder may only conduct such activities with respect to oxaliplatin in the manner currently being conducted by Shareholder in connection with the acquisition of Shimoda Biotech (Pty) Ltd. and its subsidiary, (ii) contract manufacturing (and the related activities necessary to perform contract manufacturing) of APP Generic Pharmaceutical Products by Abraxis BioScience, Inc. in the manner currently being conducted in the Abraxis BioScience, Inc. facility in Phoenix, Arizona, (iii) contract manufacturing (and the related activities necessary to perform contract manufacturing) by Abraxis BioScience, Inc. or one or more of its Subsidiaries of APP Generic Pharmaceutical Products upon the consent of the Company, such consent not to be unreasonably withheld, (iv) developing (and related in-licensing and manufacturing) APP Generic Pharmaceutical Products upon the consent of the Company, such consent not to be unreasonably withheld, so long as such products are not sold, marketed and/or distributed within the Restricted Area during the Restricted Period and (v) serving as a director, consultant or advisor of APP or the Company or any Affiliate of the Company.

(d) Notwithstanding the foregoing provisions of Section 2(c) and the restrictions set forth therein, Shareholder or his Affiliates may: (i) own (A) securities in any Competitor that is a publicly held corporation, but only to the extent that Shareholder does not own, of record or beneficially, more than 3% of the outstanding beneficial ownership of any such Competitor and (B) securities in any Competitor, provided that the Shareholder acquired such securities as the result of a sale or other distribution of Abraxis BioScience, Inc. to any Person and provided further that the Shareholder does not own, of record or beneficially, more than 15% of the outstanding beneficial ownership of any such Competitor and (ii) acquire and hold control of any Person or business (or an interest in any Person or business) that at all times when held by the Shareholder or his Affiliates (based on the then-preceding fiscal year) derives less than 15% of its revenues from the Restricted Activities.

(e) APP Generic Pharmaceutical Product means the products listed on Schedule 2(e) hereto, in any dosage and in the form (intravenous and nonintravenous) as marketed, developed or planned to be developed by APP at the time of the Merger; for the avoidance of doubt, with respect to oral generic products, APP Generic Pharmaceutical Products shall only include those oral generic products listed on Schedule 2(e) in their current formulation.

(f) Affiliate as used herein, means, with respect to any Person or entity, any Person or entity directly or indirectly controlling, controlled by or under common control with such other Person or entity, and in respect of any individual, members of his or her immediate family, any trust for the benefit of such individual and/or members of his or her immediate family and any other entity in which such individual or any members of his or her immediate family separately or collectively hold (directly or indirectly) a majority of the outstanding equity interests or of which they are trustees.

(g) Immediate Family as used herein, means an individual’s spouse, children, parents and anyone else who shares the individual’s home.

(h) Restricted Area as used herein, means each county or similar political subdivision of each State of the United States of America and each province of Canada.

COVENANT NOT TO COMPETE (47. NON-COMPETITION AGREEMENT)

1. Covenant Not To Compete.

(a) For the period beginning on the Closing and ending five (5) years thereafter (the Non-Compete Period ), the Sellers shall not, directly or indirectly, including without limitation as an officer, director, proprietor, employee, independent contractor, partner, member, investor, guarantor, consultant, advisor, agent, sales representative or other participant, engage in or assist with any Competitive Activity (as defined in Section 1(b), below) in any country in the World in which the Sellers, the Company, and/or the Subsidiary, during the immediately prior 3-year period, has been or at the time of the Closing is, engaged. The Sellers understand the foregoing restrictions may limit their respective abilities to engage in certain business during the Non-Compete Period; however, they also acknowledge and agree that they will receive sufficiently high remuneration and other benefits under the SPA to justify these restrictions.

(b) For purposes of this Agreement, Competitive Activity shall mean: (i) the research, development and/or commercialization of medicines based on Prostones or drug therapy that have been, are, could be or will be developed from any idea, invention or innovation relating to Prostones or from any intellectual property owned by or held by the Company or the Subsidiary; and (ii) the creation or development of, application for, ownership or holding of, protection of, and/or licensing of patents and/or patent applications relating to Prostone technology and/or patents or relating to other similar drug therapy that have been, are, could be or will be developed from any intellectual property owned by or held by the Company or the Subsidiary. The definition of Competitive Activity shall not include any currently ongoing unpaid scientific and/or clinical advice provided by the Principals on behalf of R-Tech Ueno in connection with the development or marketing of Rescula. Should the Principals seek an exception to the definition of Competitive Activity for any currently ongoing paid or unpaid scientific and/or clinical advice provided by the Principals on behalf of R-Tech Ueno or for other services related to Rescula provided by the Principals on behalf of R-Tech Ueno, whether paid or unpaid (such as membership on a Board of Directors or speaking engagements at medical conferences), the Principals must follow the policies and procedures for review, approval or ratification of such activities as set forth in Section 2 of the Sucampo Pharmaceuticals, Inc. Related Person Transactions Policy, which is attached hereto as Exhibit A, prior to engaging in such activities and/or receiving such compensation. The Company shall issue a determination regarding whether any request for an exception is granted. The Company’s decision on any such request shall be made in the Company’s sole discretion, but approval of the request shall not be unreasonably withheld.

(c) Nothing in Section 1(a) shall be construed so as to preclude Sellers from (i) investing in any publicly or privately held company provided that such Seller’s beneficial ownership or rights to ownership of any class of such company’s securities does not exceed 5% of the outstanding securities of such class or (ii) owning, managing or participating in R-Tech Ueno; provided, however, that the Sellers may not engage in Competitive Activity as a result of their ownership, management or participation in said entity.

NONCOMPETITION (15. NONCOMPETITION AGREEMENT)

SECTION 2.

NONCOMPETITION

2.1 Agreement Not to Compete. In consideration of Workstream consummating the transactions contemplated by the Purchase Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Seller agrees that for a period of eighteen (18) months following the date hereof, the Seller will not:

(a) within the Territory directly or indirectly own, manage, operate, control, consult with, be employed by or participate in the ownership, management, operation or control of, or be connected in any manner with, any business that (i) competes with the Business, or (ii) is engaged in substantially the same business as the Business or (iii) provides similar or comparable services as those provided by Workstream, the Company or any Relevant Company to the past or present clients and customers of such Person. Notwithstanding the foregoing, the restrictions provided under this Section 2.1(a) with respect only to the Arizona tax credits portion of the business shall continue for a period of six (6) months following the date hereof and not the eighteen (18) months otherwise provided for hereunder. For the purposes of this clause (a), ownership of securities of a publicly-held corporation in which Seller does not possess beneficial ownership of more than five (5%) percent of the voting capital stock of such corporation or participate in any management or advisory capacity shall not be prohibited; or

(b) employ, solicit for employment or otherwise contract for the services of any employee of Workstream, the Company or any Relevant Company during the effectiveness of this Agreement; or

(c) in any way interfere with relationship of Workstream, the Company or any Relevant Company with any customer, vendor, supplier or other professional or business relation of Workstream, the Company or any Relevant Company.

2.2 Enforceability. It is the desire and intent of the Parties that the provisions of this Agreement shall be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. If at the time of enforcement of any of the agreements contained in this Section 2 a court shall hold that the duration, scope or area or restrictions stated therein are unreasonable under the circumstances then existing, it is agreed that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area.

NONCOMPETITION COVENANTS (7. AMENDED AND RESTATED NONCOMPETITION AGREEMENT)

2. Noncompetition Covenants.

(a) The Executive acknowledges that the Executive’s employment with a competitor of the Company Group within a reasonable time following the termination of the Executive’s employment with the Company Group would create a substantial likelihood that the Executive would inevitably disclose or use, to the detriment of the Company Group, Confidential Material, and that it is essential to the Company Group’s legitimate business interests and also to free and fair competition in the industry within which the Company Group does business, to protect the Company Group’s Confidential Material from disclosure.

(b) The risk of inevitable disclosure is particularly applicable to any such employment by the Executive with those competitors of the Company Group that are similar in operation, service, missions and markets to the Company Group ( Principal Competitors ). As of the date of this Agreement, the Principal Competitors are: Lincare Holdings, Inc.; Rotech Healthcare, Inc.; American HomePatient, Inc.; Coram Healthcare Corporation; Option Care, Inc.; Pacific Pulmonary Services Corporation; LifeCare Solutions, Inc.; and the home healthcare businesses of Air Products & Chemicals, Inc. and Praxair, Inc. and their respective parent, affiliated and subsidiary companies.

(c) In order avoid the disclosure by the Executive of the Company’s trade secrets or other Confidential Material to those businesses that could most adversely affect the performance of the Company Group and damage its goodwill, the Executive agrees that, during the period of the Executive’s employment by the Company and for a period of one year following the date on which the Executive’s employment with the Company Group terminates for any reason (the Post-Termination Period ), the Executive will not engage, directly or indirectly, in business with or work with or for, whether as an owner, employee, consultant or otherwise, any Principal Competitor; provided, however, that this restriction shall not prevent the Executive from owning less than 1% of any class of publicly-traded securities (or other equity interests held through a publicly-traded mutual fund or similar investment) of a Principal Competitor following the termination of the Executive’s employment with the Company. The Executive expressly acknowledges and agrees that the foregoing restriction is reasonable and necessary in order to protect the Confidential Material of the Company Group. The phrase engage, directly or indirectly means engaging or having an interest in, directly or indirectly, as owner, partner, participant of a joint venture, trustee, proprietor, shareholder, member, manager, director, officer, employee, independent contractor, capital investor, lender, consultant, advisor or similar capacity.

COVENANTS AGAINST COMPETITION AND SOLICITATION (66. Magnetech DeWees Non-Compete Agreement)

a) Covenants Against Competition and Solicitation. DeWees agrees that he will not, for the Prohibited Period (as defined below), without the express written consent of Company, unless there has been a default by the Company under the Lease or the Note that has not been cured in the period of time allowed for cure in the Lease:

(i) Directly or indirectly, as a proprietor, officer, employee, partner, stockholder, consultant, agent, owner or otherwise, work for, render assistance or services to or otherwise participate in any business that competes with or engages in business substantially similar to the Business anywhere within the Prohibited Territory (as defined below);

(ii) Directly or indirectly, induce, hire or solicit or seek to induce, hire or solicit any person who was engaged with 3-D as an employee, agent, independent contractor or otherwise at any time within one year before the Closing Date to end his or her engagement or employment with Company; or

(iii) Either for himself or for any other person, firm, corporation or entity, solicit, divert or accept, or attempt to solicit, divert or accept any persons or entities which were customers or suppliers of 3-D at any time within one year before the Closing Date.

For purposes of this Agreement, the Prohibited Territory means anywhere within a one thousand (1000) mile radius of each of 3-D’s locations (in Massillon and Cincinnati), unless that geographic restriction is deemed to be of unreasonably broad scope, and therefore unenforceable, by a court of competent jurisdiction, in which case the next sentence shall define the Prohibited Territory. The Prohibited Territory means anywhere within a five-hundred (500) mile radius of each of 3-D’s locations (in Massillon and Cincinnati), unless that geographic restriction is deemed to be of unreasonably broad scope, and therefore unenforceable, by a court of competent jurisdiction, in which case the next sentence shall define the Prohibited Territory. The Prohibited Territory means anywhere within a two-hundred-fifty (250) mile radius of each of 3-D’s locations (in Massillon and Cincinnati).

The term Prohibited Period shall be defined as a period of two (2) years from and after the Closing Date as defined in the Membership Interest Purchase Agreement.

COVENANT AGAINST COMPETITION (31. NON-COMPETITION AGREEMENT)

SECTION 1.1 Covenant Against Competition. During the period commencing the date hereof and terminating on the third anniversary of the date of this Agreement, the Stockholder shall not, directly or indirectly, either alone or in association with others, anywhere within the world, other than in the performance of his or her duties as an employee or consultant of Parent or its affiliates:

(a) engage, in any way or to any extent, in the Business;

(b) whether as a principal, consultant, partner or in any other capacity, own, manage, control or participate in the ownership, management or control of, or render services directly related to, any person, corporation, partnership, proprietorship, firm, association or other business entity engaged in any way and to any extent in the Business or any other activities that are competitive with the Business;

(c) induce, request or encourage any employee, consultant, officer or director of Parent or its affiliates to terminate any such relationship with Parent or such affiliate;

(d) employ, cause to be employed, or assist in or solicit the employment of any employee, consultant, officer or director of Parent or its affiliates while any such person is providing services to Parent or its affiliates or within six months after any such person ceases providing services to Parent or its affiliates; or

(e) solicit, divert or appropriate, or assist in or attempt to solicit, divert or appropriate, any customer or supplier, or any potential customer or supplier, of Parent or its affiliates for the purpose of competing with the Business.

Notwithstanding any provision of this Agreement to the contrary, the Stockholder may own, directly or indirectly, securities of any entity having a class of securities registered pursuant to the Securities Exchange Act of 1934, as amended (the Exchange Act ) which engages in a business competitive with the Business, provided that the Stockholder does not, directly or indirectly, individually or in the aggregate (including without limitation by being a member of a group within the meaning of Rule 13d-5 under the Exchange Act) own beneficially or of record more than one percent (1%) of any class of securities of such entity. For purposes of this Agreement, the term affiliate shall have the meaning ascribed to such term in Rule 405 under the Securities Act of 1933, as amended.

Notwithstanding anything to the contrary set forth in Section 1.1 above, if the Shareholder’s employment under the Employment Agreement is terminated by the Employer without cause or by the Stockholder due to a material breach by the Employer of the Employment Agreement, then this Section 1.1(a) and Section 1.1(b) shall apply to the Stockholder only for so long as the Stockholder is receiving severance pay due under the Employment Agreement or Base Salary pursuant to the following sentence. Notwithstanding anything to the contrary in the Employment Agreement, the Employer shall have the right to pay the Stockholder his Base Salary to extend the period of non-competition for as long as Employer determines, in the sole exercise of its discretion, but in no event beyond the Term Expiration Date.

This Agreement shall survive and be enforceable whether or not any compensatory payment is made if the Stockholder’s employment is terminated (i) for cause or (ii) if the Stockholder resigns for any reason other than a material breach by the Employer of the Employment Agreement.

COVENANT NOT TO COMPETE (41. NON-COMPETITION AGREEMENT)

3. Covenant Not to Compete. For a period of twenty-four (24) months after the date of execution of this Non-Competition Agreement (the Term ), DeGori specifically agrees that he will not, for himself, on behalf of or in conjunction with any person, firm, corporation or entity (either as principal, employee, shareholder, member, director, officer, partner, consultant, owner or part owner of any corporation, partnership or any type of business entity), directly or indirectly, whether for compensation or not, compete with Buyer or the club known as SCORES by owning or sharing in the earnings of, carrying on, managing, operating, controlling, being engaged in, rendering services to, soliciting customers for, participating in or otherwise being connected with, any business engaged in the operation of an establishment providing live female nude or semi-nude adult entertainment in Clark County, Nevada or in a radius of 25 miles of Clark County, Nevada; provided, however, that this Non-Competition Agreement shall specifically exclude the Penthouse Club and Bada Bing Club located in Clark County, Nevada.

NON-COMPETITION PROVISIONS (58. NON-COMPETITION AGREEMENT)

1.3 Non-Competition Provisions.

(a) Agreement Not to Compete. For a period of eighteen (18) months from the Closing Date (the “Restricted Period”), and provided that the Employee receives from the Company any and all compensation and benefits required pursuant to the terms of his or her employment agreement (or offer letter) with the Company, the Employee shall not (i) engage in the Business anywhere or (ii) serve as an employee or director of, or a consultant to, or own more than 1% of the outstanding voting equity securities of, any Competing Entity (as defined below) anywhere in the world.

Notwithstanding the termination of the Restricted Period, the Employee shall remain subject to the restrictions and obligations contained in the Employment, Confidential Information and Invention Assignment Agreement entered into with MoSys on or around the Closing Date.

For purposes of this Agreement, the term Competing Entity shall mean: (i) a corporation or other entity the principal business function of which is the Business; or (ii) a corporation, or business unit of a corporation, or other entity that derives significant gross revenues from the Business in any given fiscal year. Notwithstanding anything to the contrary contained in this Agreement, the Employee may (without being deemed to have breached any provision of this Agreement) serve as an employee of any Competing Entity if the services performed by the Employee for such Competing Entity, or the primary responsibilities of the Employee as an employee of such Competing Entity, do not relate directly or indirectly to the Business whether in a supervisory or support capacity.

(b) Engage in Business. For purposes of this Section 1.3, the term engage in business shall include, without limitation, maintenance of business assets and properties, and dealings with actual or potential customers, licensees, suppliers, vendors, partners, channel affiliates or co-marketers, the principal business function of which is the Business.

(c) Exception. Nothing in this Section 1.3 shall prevent the Employee from owning less than 1% of the outstanding shares of any corporation listed on a national securities exchange or actively traded on an over-the-counter market. Furthermore, if MoSys fails to pay the Employee the compensation and benefits (including severance benefits) required pursuant to the terms of his employment agreement (or offer letter) with the Company, none of the restrictions set forth herein shall apply and any Restricted Period shall terminate on the date of termination of Employee’s employment. Furthermore, if MoSys terminates the Employee’s employment without Cause (as defined in the Employee’s employment agreement or offer letter) and pays severance benefits to the Employee during the Restricted Period, the restrictions set forth herein shall cease to apply and the Restricted Period shall terminate on the last day of the period determined by the amount of severance benefits paid to the Employee, as determined in accordance with Employee’s employment agreement or offer letter.

(d) Termination. This Agreement shall terminate and expire, and shall cease to be of any force or effect, upon the expiration of the Restricted Period.

COVENANTS (64. NON-COMPETITION AGREEMENT)

1. Covenants. From and after the date of this Non-Competition Agreement through and including the ____ (__) year period immediately following the date of this Non-Competition Agreement (such ____ (__) year period, the Restricted Period ), _________ shall not compete with the Company, the Buyer, or the Club, or any of their affiliates, and shall not either individually or jointly, directly or indirectly, whether for compensation or not, alone or in association with any other person or entity:

(a) Own or share in the earnings of, carry on, manage, operate, control, be engaged in, render services to, solicit customers for, participate in or otherwise be connected with, any business engaged in the operation of an establishment featuring live female nude or semi-nude entertainment within a five (5) mile radius of the Club; or

(b) Solicit or induce, or attempt to solicit or induce, any employee, independent contractor, or agent or consultant of the Company, the Buyer or any of their affiliates or the Club to leave his or her employment or terminate his or her agreement or relationship with the Company, the Buyer or any of their affiliates or the Club.

(c) NOTWITHSTANDING THE FOREGOING, it is agreed that this Non-Competition Agreement, and the restrictions contained herein, shall terminate and be of no further force and effect in the event the Buyer defaults in the payment of the secured promissory note (the Note ) as contemplated in the Purchase Agreement and such default is not cured after _________ provides Buyer written notice and opportunity to cure as provided for in the Note.

NONCOMPETITION (57. EX-10.2 3 dex102.htm NONCOMPETITION AGREEMENT)

1. Noncompetition.

(a) During the Employment Period the Executive shall not engage in Competition (as defined below) with the Company or any of its subsidiaries or affiliates. To the extent permitted by federal and state law, this Agreement shall continue in effect for one year beyond the end of the Employment Period only if Executive voluntarily resigns from employment with the Company during the Employment Period but excluding a resignation for Good Reason, a Change in Control Resignation, or a resignation as a result of Executive’s exercise of the right to resign under Section 2(b)(iii) of the Employment Agreement.

(b) The term Competition for purposes of this Agreement shall mean the taking of any of the following actions by the Executive: (i) the conduct, directly or indirectly, of any business involving real property development, investment, acquisition, sale or management, whether such business is conducted by the Executive individually or as principal, partner, officer, director, consultant, employee, stockholder or manager of any person, partnership, corporation, limited liability company or any other entity; and/or (ii) ownership of interests in real property which are competitive, directly or indirectly, with any business carried on by the Company (or any successor thereto) or its subsidiaries or affiliates; provided, however, that the term Competition shall be deemed to exclude (A) the direct or indirect ownership by the Executive of up to five percent (5%) of the outstanding equity interests of any public company or up to ten percent (10%) in any privately held fund, partnership or other real estate investment vehicle, and (B) residential real estate.

(c) During the Employment Period, and for two (2) years thereafter, the Executive shall not, directly or indirectly, engage, employ or solicit the employment of any person who is then or has been within three (3) months prior to the time of such action, an employee of the Company, or any affiliate of either TPG or the Operating Partnership.

COMPETITION (1. NONCOMPETITION AGREEMENT)

a) Competition. For and in consideration of the payments described in Section 5, the Executive shall not, without the prior written consent of the Administrator, either separately, jointly, or in association with others, directly or indirectly, as an agent, employee , owner, partner, member, or stockholder or otherwise, compete with Consumers or establish, engage in, or become interested in, any business, trade, or occupation that competes with Consumers in the Financial Products or Services industry through association with a financial institution that operates a corporate headquarters within 50 (fifty) miles of a physical branch or loan office location of Consumers existent during the Executive’s employment with Consumers or is existent on the date of the Executive’s Termination of Employment. The Executive acknowledges and agrees that during the terms of the Executive’s employment the Executive has acquired special and confidential knowledge regarding the operations of Consumers. Furthermore, although not a term or condition of this Agreement, the Company, the Bank, and the Executive acknowledge and agree that the Executive services have been used and are being used by Consumers in executive, managerial and supervisory capacities throughout the areas in which Consumers does business . The Executive acknowledges and agrees that the noncompete restrictions contained herein are reasonable and fair in scope and necessary to protect the legitimate interests of Consumers. Notwithstanding anything contained in the Section 4(a) to the contrary, nothing contained herein shall be construed to prohibit the Executive from owning equity in other businesses that are competitive with Consumers; provided that, while employed by Consumers, such ownership in any competitive business does not exceed the value of the Executives equity ownership in Consumers without the prior written consent of the Administrator and does not meet or exceed five percent (5%) of the issued and outstanding equity of such competitive business.

AGREEMENT NOT TO COMPETE (18. NONCOMPETITION AGREEMENT)

1. Agreement Not To Compete.

(a) In order to protect the business of Buyer and any of its Affiliates (as defined below), commencing on the Effective Date and for a period of two (2) years after the date on which either Seller voluntarily terminates his employment with the Company or Seller is terminated by the Company for cause, as Cause is defined in the Employment Agreement by and between Company and Seller dated of even date herewith (the end of such two (2) year period being hereinafter referred to as the Termination Date ):

(i) Seller will not, within the following described Louisiana Parishes, and the States of Texas, Florida, Mississippi, Arkansas, Alabama and Georgia (the Territory ), engage in, provide consulting services to, be employed by or have any interest in (whether as a proprietor, partner, director, officer, employee or stockholder) any corporation, general or limited partnership, association, limited liability company, sole proprietorship, trust or other entity or organization, other than Buyer or any of its Affiliates, which is engaged in a business that directly competes with the Business

PARISHES IN THE STATE OF LOUISIANA

....; and

(ii) Seller will not, directly or indirectly, at any time during the term of this Agreement (from the Effective Date through the Termination Date): (A) employ, or permit any company or business directly or indirectly controlled by Seller to employ, any person who is employed by Buyer or any entity controlling, controlled by or under common control with Buyer (an Affiliate ); (B) interfere with or attempt to disrupt the relationship, contractual or otherwise, between Buyer or any of its Affiliates and any of their employees or consultants; (C) solicit or in any manner seek to induce any employee or consultant of Buyer or any of its Affiliates to terminate his or her employment or engagement with Buyer or any of its Affiliates; or (D) within the Territory, solicit any customers of Buyer or any of its Affiliates unless such solicitation is not related to the Business.

(b) Notwithstanding Section 1(a) of this Agreement, Seller shall not be precluded from purchasing or owning stock in a publicly-held corporation if Seller’s holdings are less than two percent (2%) of the outstanding capital stock of such corporation and will not be precluded from owning an interest in Buyer.

NONCOMPETITION (23. AMENDED AND RESTATED NONCOMPETITION AGREEMENT)

1. Noncompetition. The Executive agrees with the Company that for the longer of (i) the three-year period beginning on the date of this Agreement or (ii) the period during which the Executive is employed by, or serving as an officer or trustee or director of, the Company, U-Store-It, L.P., a Delaware limited partnership of which the Company is the general partner, or any of their direct or indirect subsidiaries (collectively, the REIT ), and for one year thereafter (the Restricted Period ), the Executive will not, (a) directly or indirectly, engage in any business involving self-storage facility development, construction, acquisition or operation ( Self Storage Business ), whether such business is conducted by the Executive individually or as a principal, partner, member, stockholder, director, trustee, officer, employee or independent contractor of any Person (as defined below) or (b) own any interests in any self-storage facilities, in each case in the United States of America; provided, however, that this Section 1 shall not be deemed to prohibit the direct or indirect ownership by the Executive of up to five percent of the outstanding equity interests of any public company. For purposes of this Agreement, Person means any individual, firm, corporation, partnership, company, limited liability company, trust, joint venture, association or other entity.

NON-COMPETITION COVENANT (54. EX-10.15 3 dex1015.htm AMENDED AND RESTATED NON-COMPETITION AGREEMENT)

E. Non-Competition Covenant

1. Executive agrees that during Executive’s employment with the Company and for a period of eighteen (18) months (except as provided in Section I.E.3 below) following the termination of Executive’s employment for any reason, Executive shall not, directly or indirectly, in any Business Area, engage in, work for, provide services to, own, manage, operate, control or otherwise engage or participate in, or be connected as an owner, partner, principal, creditor, salesman, guarantor, advisor, member of the board of directors of, Executive of, independent contractor of, or consultant to, any Conflicting Organization. The restrictions in this Section I.E.1 include without limitation the solicitation on behalf of a Conflicting Organization of any Client located in any Business Area (e.g., Executive may not on behalf of a Conflicting Organization solicit a Client located within a Business Area by telephoning the Client from a site located outside the Business Area).

2. Notwithstanding the foregoing provisions of Section I.E and the restrictions set forth therein, Executive may own securities in any publicly held corporation that is covered by the restrictions set forth in Section I.E, but only to the extent that Executive does not own, of record or beneficially, more than 5% of the outstanding beneficial ownership of such corporation.

3. Notwithstanding anything in this Agreement to the contrary, within fifteen (15) days after the termination of Executive’s employment for any reason, the Company in its sole discretion may elect to extend the non-competition period set forth in Section I.E.1 from eighteen (18) months to twenty-four (24) months by delivering written notice to Executive of the Company’s election to extend such period. If the Company elects to extend the non-competition period to twenty-four (24) months and either the Company terminated the Executive’s employment without Cause as defined in the Executive Employment Agreement, or the Executive terminated employment with Good Reason as defined in the Executive Employment Agreement, then, provided that the Executive has complied with all conditions precedent to the Executive being entitled to receive any separation payments pursuant to the Executive Employment Agreement, the period during which the Executive is entitled to receive separation payments pursuant to the Executive Employment Agreement will automatically and without further action be extended from eighteen (18) months to twenty-four (24) months.

AGREEMENT NOT TO COMPETE (55. NONCOMPETITION AGREEMENT)

1. Agreement Not To Compete.

(a) In order to protect the business of Buyer and any of its Affiliates (as defined below), for a period of five (5) years beginning on the Effective Date and ending on the date which is five (5) years thereafter (the Termination Date ):

(i) Seller will not, within the United States (the Territory ), engage in, provide consulting services to, be employed by or have any interest in (whether as a proprietor, partner, director, officer, employee or stockholder) any corporation, general or limited partnership, association, limited liability company, sole proprietorship, trust or other entity or organization, other than Buyer or any of its Affiliates, which is engaged in a business that directly competes with the Business;

(ii) Seller will not, directly or indirectly, at any time during the term of this Agreement (from the Effective Date through the Termination Date): (A) employ, or permit any company or business directly or indirectly controlled by Seller to employ, any person who is employed by Buyer or any entity controlling, controlled by or under common control with Buyer (an Affiliate ); (B) interfere with or attempt to disrupt the relationship, contractual or otherwise, between Buyer or any of its Affiliates and any of their employees or consultants; (C) solicit or in any manner seek to induce any employee or consultant of Buyer or any of its Affiliates to terminate his or her employment or engagement with Buyer or any of its Affiliates; or (D) within the Territory, solicit any customers of Buyer or any of its Affiliates unless such solicitation is not related to the Business; and

(iii) Notwithstanding the foregoing, Seller shall not be precluded from engaging in any activity in Seller’s individual capacity relating or pertaining to services for engineering, project management, inspection or consultation that is performed directly for owners or customers that do not directly or indirectly compete with the Business of the Buyer as described herein.

(b) Notwithstanding Section 1(a) of this Agreement, Seller shall not be precluded from purchasing or owning stock in a publicly-held corporation if Seller’s holdings are less than two percent (2%) of the outstanding capital stock of such corporation and will not be precluded from owning an interest in Buyer.

AGREEMENT NOT TO COMPETE (2. NONCOMPETITION AGREEMENT)

1. Agreement Not To Compete.

(a) In order to protect the business of Buyer and any of its Affiliates (as defined below), for a period of five (5) years beginning on the Effective Date and ending on the date which is five (5) years thereafter (the Termination Date ):

(i) Seller will not, within the United States (the Territory ), engage in, provide consulting services to, be employed by or have any interest in (whether as a proprietor, partner, director, officer, employee or stockholder) any corporation, general or limited partnership, association, limited liability company, sole proprietorship, trust or other entity or organization, other than Buyer or any of its Affiliates, which is engaged in a business that directly competes with the Business;

(ii) Seller will not, directly or indirectly, at any time during the term of this Agreement (from the Effective Date through the Termination Date): (A) employ, or permit any company or business directly or indirectly controlled by Seller to employ, any person who is employed by Buyer or any entity controlling, controlled by or under common control with Buyer (an Affiliate ); (B) interfere with or attempt to disrupt the relationship, contractual or otherwise, between Buyer or any of its Affiliates and any of their employees or consultants; (C) solicit or in any manner seek to induce any employee or consultant of Buyer or any of its Affiliates to terminate his or her employment or engagement with Buyer or any of its Affiliates; or (D) within the Territory, solicit any customers of Buyer or any of its Affiliates unless such solicitation is not related to the Business; and

(iii) Notwithstanding the foregoing, Seller shall not be precluded from engaging in any activity in Seller’s individual capacity relating or pertaining to services for engineering, project management, inspection or consultation that is performed directly for owners or customers that do not directly or indirectly compete with the Business of the Buyer as described herein.

(b) Notwithstanding Section 1(a) of this Agreement, Seller shall not be precluded from purchasing or owning stock in a publicly-held corporation if Seller’s holdings are less than two percent (2%) of the outstanding capital stock of such corporation and will not be precluded from owning an interest in Buyer.

NONCOMPETITION;; (26. NON-COMPETE AGREEMENT)

a) For a period of twelve months following the Effective Date (the Noncompete Period ), AMB shall not directly or indirectly:

(i) Be employed by, engaged in or participate in the ownership, management, operation or control of, or act in any advisory or other capacity (such as a director or trustee) for, any Competing Entity (as hereinafter defined) that is headquartered or that has offices in the Territory (as hereinafter defined); provided, however, that notwithstanding the foregoing, AMB may make solely passive investments in any Competing Entity the common stock of which is publicly held and of which AMB shall not own or control, directly or indirectly, in the aggregate securities which constitute 5% or more of the voting rights or equity ownership thereof;

(ii) solicit or actively or knowingly divert any business of any Customer (as hereinafter defined) from the Company or the Bank or assist any person, firm or corporation in doing so or attempting to do so;

(iii) actively or knowingly cause or seek to cause any person, firm or corporation to refrain from dealing or doing business in the Territory with the Company or assist any person, firm or corporation in doing so;

(iv) assist or advise any person, firm or corporation in connection with any commercial or commercial real estate loan to any person, firm or business (or involving any guarantor) located or residing, or secured by property located, within the Territory;

(v) solicit deposits from any person, firm or corporation residing or located in the Territory; or

(vi) solicit for employment or advise or recommend to any other person that they employ or solicit for employment or retention as an employee or consultant, any person who is an employee of, or consultant to the Bank or the Company,

For purposes of this Section, the term Competing Entity shall mean any entity which is a savings bank, savings bank holding company, savings and loan association, savings and loan holding company, credit union, bank or bank holding company, or any mortgage or loan broker. The term Territory shall mean Passaic County, Bergen County, Hudson County or Morris County, New Jersey. The term Customer shall mean any person or entity AMB knows or should know (after reasonable inquiry) is an existing customer of the Company or the Bank.

NONCOMPETITION (56. NONCOMPETITION AGREEMENT)

3. NONCOMPETITION.

(a) Stockholder shall not, at any time during the Covenant Term, directly or indirectly, invest in (other than as a passive investor holding less than five percent (5%) of the outstanding voting or nonvoting securities of a publicly traded entity), engage in or be associated with, as an employee, consultant, agent, director, stockholder, partner, financial backer or otherwise, the ownership or operation of any enterprise operating or proposing to operate in the Business (excluding any ownership interest Stockholder has or may have in the Parent).

(b) Stockholder shall not, at any time during the Covenant Term, directly or indirectly, nor will any person, corporation, firm, partnership or other entity over which Stockholder exercises Control (whether as an officer, director, individual proprietor, control stockholder, consultant, partner or otherwise), (i) solicit, recruit or hire away from employment by the Parent or the Company, any person who is employed on the date hereof or during the Covenant Term by any of them, or (ii) solicit any person or entity to terminate or modify such person’s contractual and/or business relationship with the Parent or the Company.

(c) Stockholder shall not, at any time during the Covenant Term, directly or indirectly, nor will any person, corporation, firm, partnership or other entity over which Stockholder exercises Control (whether as an officer, director, individual proprietor, control stockholder, consultant, partner or otherwise), solicit, recruit or encourage any current or future customer (including any distributor, sales agent or sales representative) or licensee of the Parent or the Company to cease doing business in whole or in part with the Parent or the Company with respect to the Business, or to reduce, modify, divert or otherwise interfere with or impair the business relating to the Business between such customer or licensee and the Parent or the Company.

NON COMPETITION (22. COVENANT NOT TO COMPETE)

a) Non-Competition. For a period of three years measured from the Closing Date (the Non-Competition Period ), Seller shall not, without the prior written consent of Purchaser, engage in a Competitive Business Activity (as defined below) anywhere in the Restricted Territory (as defined below).

(i) For all purposes hereof, the term Competitive Business Activity shall mean: (A) engaging in, or managing or directing persons engaged in any business in competition with the business of the Company being acquired by Purchaser pursuant to the Acquisition Agreement (the Acquired Business ); (B) acquiring or having an ownership interest in any entity that derives revenues from any business substantially similar to the Acquired Business (except for passive ownership of one percent (1%) or less of any entity whose securities are publicly traded on a national securities exchange or market or five percent (5%) or less of any entity whose securities are not publicly traded on a national securities exchange or market); or (C) participating in the operation, management or control of any firm, partnership, corporation, entity or business (each, an Entity ) described in subsection (B) above.

(ii) For all purposes hereof, the term Restricted Territory shall mean each and every country, province, state, city or other political subdivision in which the Company is engaged in the Acquired Business.

(iii) Notwithstanding the provisions of subsection (i) above, the term Competitive Business Activity does not include (A) writing, editing, contributing to, compiling, publishing, or promoting a book, magazine, or other literary work, electronically or otherwise as long as such activities are not being performed by Seller as an employee of, or independent contractor or consultant for, a business substantially similar to the Acquired Business; or (B) giving lectures, giving addresses, speaking at conferences, or engaging in any other type of public speaking

NONCOMPETITION (36. NONCOMPETITION AGREEMENT)

1. Noncompetition

Executive shall not, during his employment by the Company and for a period of [one year] from the date on which his employment terminates for any reason, directly or indirectly be employed by, own, manage, operate, join, control or participate in the ownership, management, operation or control of, or otherwise be connected with, any business engaged in the ownership, leasing, operation or management of assisted living communities in the United States and Canada; provided, however, that nothing herein shall prevent the purchase or ownership by Executive of (i) shares which constitute less than five percent of the outstanding equity securities of a publicly held corporation, or (ii) up to a 10% interest as a limited partner of a limited partnership or a member of a limited liability company holding substantially the same rights as a limited partner in a limited partnership The term "assisted living community" means any facility or other institution, however named, which is advertised or maintained for lodging, daily meal service and assistance with the activities of daily living for seniors, as generally represented by the assisted living communities operated by the Company.

NONCOMPETITION (69. FOUNDER NONCOMPETITION AGREEMENT)

a) Noncompetition. During the term of this Agreement, the Employee agrees that Employee will not, singly, jointly, or as a partner, member, employee, agent, officer, director, stockholder, equity holder, lender, consultant, independent contractor, or joint venturer of any other Person, or in any other capacity, directly, indirectly or beneficially (except (i) as a passive holder of not more than one percent (1%) of the outstanding stock of any company listed on a national securities exchange, or actively traded in a national over-the-counter market, (ii) as a passive participant in any venture capital fund where his interest therein does not exceed one percent (1%) of the total capital commitments, or (iii) as Executive Chairman of EnVysion, (iv) as an employee, manager, director or owner of MCCC ICG Holdings LLC or (v) as a director or owner of New Global Telecom, Inc.

3 DeltaView comparison of iManageDeskSite://172.16.16.18/BOS/583723/2 and iManageDeskSite://172.16.16.18/BOS/583723/3. Performed on 5/22/2007. (collectively, Permitted Activities )), own, manage, operate, join, control, or participate in the ownership, management, operation or control of, or permit the use of his name by, or work for, or provide consulting, financial or other assistance to, or be connected in any manner with, a Competing Business within the Protected Territory;

NON-COMPETITION (46. EX-10.2 4 dex102.htm NON-COMPETITION AGREEMENT)

1. Non-Competition.

(a) Beginning at the Effective Time and ending on the fifth anniversary of the Closing Date (the Companies Non-Competition Period ), Employee shall not, directly or indirectly, alone or as a partner, (i) serve as an officer, director, owner, trustee, employee or consultant of any Person, or (ii) own, manage, control, operate, or otherwise invest, participate or engage in, any business or other enterprise that in any way competes with the Companies Business as conducted immediately prior to the Employee’s termination of its employment with Perrigo (for any reason) (the Employment End Date ).

(b) Beginning at the Effective Time and ending on the Employment End Date (the Initial Perrigo Non-Competition Period ), Employee shall not, directly or indirectly, alone or as a partner, officer, director, owner, trustee, employee or consultant of any Person, own, manage, control, operate, or otherwise invest, participate or engage in any business or other enterprise that develops, manufactures or commercializes any products or categories that compete with the Perrigo Business as set forth on Schedule I (as may be updated pursuant to Section 5) and Schedule II. Beginning at the end of the Initial Perrigo Non-Competition Period and ending on the second anniversary of the Employment End Date (the Extended Perrigo Non-Competition Period ), Employee shall not, directly or indirectly, alone or as a partner, officer, director, owner, trustee, employee or consultant of any Person, own, manage, control, operate, or otherwise invest, participate or engage in any business or other enterprise that develops, manufactures or commercializes any products that compete with any of the products listed on Schedule I (as may be updated pursuant to Section 5). For the purposes of this Agreement, Perrigo Business during the Extended Perrigo Non-Competition Period shall be defined as only those products listed on Schedule I (including as it may have been updated pursuant to Section 5).

(c) Nothing in this Agreement shall restrict or prohibit Employee from, at any time, directly or indirectly, developing, manufacturing or commercializing any national or regional brand products (but not store brand, private label or control brand products), including such products that may compete with any of the Perrigo products specified on Schedule I or within the categories set forth on Schedule II.

(d) Notwithstanding anything to the contrary herein, passive beneficial ownership of less than 5% in the aggregate of the stock of any corporation listed on a national securities exchange shall not be deemed to be a violation of this Section 1.

(e) Nothing contained herein shall prevent Employee or any of his affiliates from acquiring, merging with or investing in any Person or business whose net revenues from the Perrigo Business constitute less than five percent (5%) of the net revenues of the acquired business during the calendar year immediately preceding the consummation of the acquisition of the acquired business.

AGREEMENT NOT TO COMPETE (50. AGREEMENT NOT TO COMPETE)

1. Agreement Not to Compete.

During the Noncompetition Period (as hereinafter defined), Seller shall not in any manner, directly or indirectly, including through entities controlled by Seller, within the Territory (as hereinafter defined), (a) engage or participate in the business of operating and managing outpatient facilities that provide radiation therapy, medical oncology and related oncology services and providing physician practice management services for medical and radiation oncologists (collectively, the Business ) or perform services for third parties that are competitive with the Business ( Competitive Services ), or (b) own or operate any business that engages or participates in the Business or that performs Competitive Services. Seller shall be deemed to be engaged in the Business or performing Competitive Services if Seller shall engage in such business or perform such services directly or indirectly, whether for Seller’s own account or for that of another person, firm or corporation, or whether as stockholder, principal, partner, member, agent, investor, proprietor, director, officer, employee or consultant or in any other capacity, except as a consultant or employee to Parent or any parent, subsidiary or other Affiliate of Parent (including, without limitation, the Company). For purposes of this Agreement, the term Territory shall mean the United States, provided that by resolution adopted by the Board of Directors the Company may by written consent (not to be unreasonably withheld) exclude from the Territory any state or states other than California, Florida, Georgia and Arizona. For the purposes of this Agreement, the term Noncompetition Period shall mean the period beginning at the Effective Time and ending upon the later to occur of (x) the second anniversary of the Effective Time and (y) six months after the termination of Seller’s employment with Parent, the Company or any Affiliate of the Parent or the Company, whether present or future. Notwithstanding the foregoing provisions of this Section 1, the prohibitions of this Section 1 shall not be deemed to prevent Seller from owning 2% or less of any class of equity securities of an entity that has a class of equity securities registered under Section 12 of the Exchange Act.

NON-COMPETITION (51. EX-10.5 6 f8k022211ex10v_gameface.htm NON-COMPETITION AGREEMENT DATED FEBRUARY 22, 2011)

Section 1. Non-Competition. (a) The Shareholder agrees that one and a half years (1.5) years after the date hereof, it will not engage, directly or indirectly, either as principal, agent, shareholder, proprietor, creditor, stockholder, director, officer or consultant, or participate in the ownership, management, operation or control of any business which directly or indirectly competes with the Business of the Company (with such term being defined below) as now being conducted and as proposed to be conducted. The Shareholder acknowledges and agrees that the current market for the Company's business extends throughout the world and that it is therefore reasonable to prohibit the Shareholder from competing with the Company anywhere in such territory. This Section shall not apply to the Shareholder’s ownership of less than five percent (5%) of the capital stock of a company having a class of capital stock which is traded on any national stock exchange.

(b) For a period of three (3) years hereafter, the Shareholder agrees that it will not, directly or indirectly, (i) solicit, divert or recruit or encourage any of the employees, agents or consultants of the Company, or any person who was such during the period Shareholder was performing services to the Company, to leave the employ of the Company or terminate or alter their contractual relationship in a way that is adverse to the Company's interests, (ii) solicit or divert business from the Company, or assist any person or entity in doing so or attempting to do so or (iii) cause or seek to cause any person or entity to refrain from dealing or doing business with the Company or assist any person or entity in doing so or attempting to do so.

(c) The Business of the Company shall mean a non-wagering, non-games of chance (such as chess, poker, and backgammon), multi-platform, multiplayer and social, game software platform.

COVENANT NOT TO COMPETE (61. NON-COMPETITION AGREEMENT)

1. Covenant Not to Compete.

(a) Non-Competition. Commencing on the date hereof and continuing until the fifth anniversary of such date, irrespective of whether the Selling Principal remains employed by the Company during such time (such five-year period being referred to as the Restricted Period ), the Selling Principal will not, without the prior written consent of the Company, either directly or indirectly, carry on or engage in the Business anywhere in the Restricted Area (defined in Section 1(b) below), except (i) as a shareholder, officer, director, employee, or consultant of the Company or (ii) as a shareholder or other equity owner of not more than three percent (3%) of the shares of any company whose shares are publicly traded on any recognized stock exchange.

(b) Restricted Area. For purposes of this Agreement, Restricted Area means the United States, England, Scotland, Wales, Northern Ireland, and any other country in which the Selling Principal has undertaken his duties for the Company to a material extent either during the one-year period immediately preceding the date hereof or during the Restricted Period.

RESTRICTION ON COMPETITION (52. NONCOMPETITION AGREEMENT)

2. Restriction on Competition. Stockholder agrees that, during the Restricted Period, Stockholder shall not, and Stockholder shall ensure that his Affiliates do not:

(a) engage directly or indirectly in Competition in any part of the Restricted Territory; or

(b) directly or indirectly be or become an officer or other employee, director, stockholder, owner, co-owner, Affiliate, partner, promoter, agent, representative, designer, consultant, advisor or manager of, for or to, or otherwise be or become associated with or acquire or hold any direct or indirect interest in, any Person that engages directly or indirectly in Competition in any part of the Restricted Territory;

provided, however, that Stockholder may, without violating this Section 2, own, as a passive investment, shares of capital stock of a publicly-held corporation that engages in Competition if: (i) such shares are actively traded on an established national securities market in the United States; (ii) the number of shares of such corporation’s capital stock that are owned beneficially by Stockholder and the number of shares of such corporation’s capital stock that are owned beneficially by Affiliates of Stockholder collectively represent less than one percent (1%) of the total number of shares of such corporation’s capital stock outstanding; and (iii) neither Stockholder nor any Affiliate of Stockholder is otherwise associated directly or indirectly with such corporation or with any Affiliate of such corporation.

NON COMPETITION (62. NON-COMPETITION AGREEMENT)

1. Non-competition

Executive shall not, during his employment by the Company and for a period of one year from the date on which his employment terminates for any reason, directly or indirectly be employed by, own, manage, operate, join, control or participate in the ownership, management, operation or control of, or otherwise be connected with, any business engaged in the ownership, leasing, operation or management of senior living communities in the United States and Canada; provided, however, that nothing herein shall prevent the purchase or ownership by Executive of (i) shares which constitute less than five percent of the outstanding equity securities of a publicly held corporation, or (ii) up to a 10% interest as a limited partner of a limited partnership or a member of a limited liability company holding substantially the same rights as a limited partner in a limited partnership The term "senior living community" means any facility or other institution, however named, which is advertised or maintained for lodging, daily meal service and/or assistance with the activities of daily living for seniors, as generally represented by the senior living communities operated by the Company.

NON-COMPETITION (49. NON-COMPETITION AGREEMENT)

3. Non-Competition. During the Restricted Period and within the Restricted Territory, Employee shall not, directly or indirectly, without the prior written consent of Parent, own, manage, operate, join, control, finance or participate in the ownership, management, operation, control or financing of, or be connected as an officer, director, employee, partner, principal, agent, representative, or consultant of any Entity engaged in any activity that relates to the research, development, promotion, marketing, licensing or distribution of products, therapies, or services which are related to the diagnosis and/or treatment of rheumatological conditions or diseases and autoimmune disorders, including, but not limited to fibromyalgia syndrome (the Restricted Business ). Notwithstanding the above, Employee shall not be deemed to be in contravention of the foregoing if Employee participates as a passive investor holding up to 1% of the equity securities of an Entity engaged in the Restricted Business, which securities are publicly traded.

NON-COMPETITION (28. EX-10.72 15 dex1072.htm NON-COMPETITION AGREEMENT, GLENN BROSNICK)

3. Non-Competition. Until the date ending four (4) years following the date of this Agreement, Brosnick will not, and Brosnick will cause his Affiliates to not, directly or indirectly, alone or in conjunction with any other person or entity, own, manage, operate or control or participate in the ownership, management, operation or control of, or become associated, as an employee, director, officer, advisor, agent, consultant, principal, partner, member or independent contractor with or lender to, any person or entity engaged in or aiding others to engage in business competitive with the Buyer, located anywhere in the United States of America.

RESTRICTION ON COMPETITION (24. NON-COMPETITION AGREEMENT)

2. Restriction on Competition. During the Restrictive Period, you will not, and will not permit any of your Affiliates, or any other Person, directly or indirectly, to:

a. engage in competition with, or acquire a direct or indirect interest or an option to acquire such an interest in any Person engaged in competition with, the Company’s Business in the United States (other than an interest of not more than 5 percent of the outstanding stock of any publicly traded company);

b. serve as a director, officer, employee or consultant of, or furnish information to, or otherwise facilitate the efforts of, any Person engaged in competition with the Company’s Business in the United States; or

c. solicit, employ, interfere with or attempt to entice away from the Company any employee who has been employed by the Company in an executive or supervisory capacity in connection with the conduct of the Company’s business within one year prior to such solicitation, employment, interference or enticement.

COVENANT NOT TO COMPETE (20. NON-COMPETE AGREEMENT)

2. Covenant Not to Compete:

The Employee shall not, except as a passive investor in less than five percent (5%) of the equity securities of a publicly held company, engage in, or own or control an interest in, or act as principal, director or officer of, or consultant to, any firm or corporation (i) engaged in a venture or business substantially similar to that of the Employer or (ii) which is in direct or indirect competition with the Employer within the United States of America, its territories and possessions and the People’s Republic of China its territories and possessions. The parties acknowledge that Escela V Fashion Co., Ltd. is not deemed in competition with the Employer.

AGREEMENT NOT TO COMPETE (42. EX-10.2 3 dex102.htm COVENANT NOT TO COMPETE BETWEEN GLENN SMITH AND VCG-IS, LLC)

2. Agreement Not to Compete. Unless otherwise consented to in writing by VCG-IS, Smith agrees that during the Restricted Period, he will not, within the Area, either Directly or Indirectly, on his own behalf or in the service or on behalf of others, engage in any Competing Business or provide managerial, supervisory, administrative, financial or consulting services or assistance to, or own a beneficial interest (except as a shareholder holding less than five percent (5%) interest in a corporation whose shares are actively traded on a regional or national securities exchange or in the over-the-counter market) in any Competing Business.

(no caption) (39. EX-10.3 4 ex103.htm NON-COMPETE AGREEMENT DAS/RJH/SFW)

1. I will not, for a period of 18 months commencing with the termination of my employment with the Company for any reason, engage (directly or indirectly) in any activities or render any services similar or reasonably related to those in which I was engaged or those that I rendered as an employee of the Company during any part of the two-year period preceding my termination, for any trade or business which competes with the Company in any place where the Company does or may do business or in any line of business engaged in (or planned to be engaged in) by the Company, whether now existing or hereafter established. I will not engage in such activities or render such services for myself or on behalf of any other person or entity engaged or about to become engaged in such competitive activities.

NON COMPETITION (63. NON-COMPETITION AGREEMENT)

3. For a period of three (3) years after the date of this Agreement, the Seller, as well as the Officers, Directors, and Designated Shareholders thereof, agree not to compete with the Buyer in any fashion within a fifteen (15) mile radius of the present location of the business. Said competition shall not be direct or indirect, in a adult cabaret business. For purposes of this Agreement, direct or indirect competition shall include, but shall not be limited to, competition as a sole proprietor, partner, corporate officer, director, shareholder, employee, agent, independent contractor, trustee, manager, or in any other manner in which the Seller, Officers, Directors, or Designated Shareholders thereof hold any debt interest, beneficial interest or employment interest in a competitive business, or shall in any fashion derive any income from such business or provide any service, including the benefit of their reputation or know-how to such business.

NON-COMPETE UPON TERMINATION OF EMPLOYMENT (9. NON-COMPETITION AGREEMENT)

3. Non-Compete Upon Termination of Employment. For a period of two (2) years from the date of the cancellation or termination of Employee’s employment with the Corporation (for any reason and by either party), Employee shall not directly or indirectly solicit or sell to any person with whom Employee had personal contact while selling or attempting to sell, servicing or promoting K through 12, college or university tuition billing services or other merchandise or services on behalf of the Corporation without the express written consent and permission of the Corporation; provided, however, that nothing herein shall be construed to prevent Executive from providing consulting services or conducting seminars for schools or dioceses relating to school operations, marketing, business and financial matters for such institutions, so long as such activities do not directly or indirectly compete with products or services offered by the Corporation.

NON COMPETITION (10. NONCOMPETITION AGREEMENT)

(a) (i) own, (ii) operate, (iii) manage, (iv) lease, (v) control, and/or (vi) render services (including consulting services) (the restriction related to services shall be limited to services related to Electronic Prescribing Transactions) to, be an investor in, or be a lender to, any person, entity, or business that owns, operates, manages, leases, or controls an electronic network that establishes, facilitates, and/or maintains connectivity between and among providers, pharmacies, and/or pharmacy benefit management companies for the purpose of processing, routing, delivering, and/or exchanging Electronic Prescribing Transactions (as defined below) (all of subsection (a) to be referred to herein as the Restricted Activity );

NON COMPETITION (65. NON-COMPETITION AGREEMENT)

(a) Own, or have any rights of conversion to own, or share in the earnings of, carry on, manage, operate, control, be engaged in, render services to or solicit customers for any business engaged in the operation of an establishment featuring live female nude or semi-nude entertainment within a ten (10) mile radius of the Club (the “Prohibited Area”) provided that two locations identified on Exhibit C attached hereto are specifically excluded from the Prohibited Area; or