Non-Competition Undertaking - Transkrit Corp. and Thomas J. Cobery
NON-COMPETITION UNDERTAKING
UNDERTAKING dated March 13, 1986, by Thomas J. Cobery, in favor of
TRANSKRIT CORPORATION, a New York corporation (hereinafter called the
"Purchaser").
W I T N E S S E T H:
WHEREAS, the Purchaser has entered into an Agreement of Purchase and Sale
of Stock (the "Agreement") of even date herewith, with the shareholders of Label
Art, Inc., a Delaware corporation (the "Corporation"), pursuant to which the
Purchaser is to purchase from such shareholders and such shareholders are to
sell to the Purchaser, all of the issued and outstanding shares of the
Corporation (the "Shares"); and
WHEREAS, the undersigned is one of the shareholders of the Corporation or
is an employee or officer of the Corporation; and
WHEREAS, the assets of the Corporation include its list of customers,
distributors and users of its label products and their particular requirements
for labels and its list of suppliers and their particular ability to meet the
Corporation's requirements for supplies (the "List") which the undersigned
acknowledges (i) is not readily ascertainable by anyone seeking to engage in a
competitive business,
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(ii) was developed by the Corporation over an extended period of time, with
considerable effort and at substantial expense and (iii) is maintained by the
Corporation as a trade secret, being disclosed in confidence to the undersigned
and other employees of the Corporation only to the extent necessary to enable
them to perform their services to the Corporation; and
WHEREAS, the assets of the Corporation also include various techniques,
know-how, technical data, operations and systems for use in the Company's
business (the "Proprietary Information") which the undersigned acknowledges (i)
were developed by or for the Corporation at substantial expense, (ii) are not
ascertainable or readily capable of being reproduced by anyone seeking to engage
in a competitive business and (iii) are maintained by the Corporation as a trade
secret, being disclosed in confidence to the undersigned and other employees of
the Corporation only to the extent necessary to enable them to perform their
services to the Corporation.
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good and
valuable consideration, the receipt of which by the undersigned is hereby
acknowledged, and in order to induce the Purchaser to purchase the Shares
pursuant to the terms of the Agreement, and with knowledge by the undersigned
that Purchaser's willingness to purchase the Shares is based in part upon the
value of the List and the Proprietary Information and the agreement of the
undersigned
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to maintain the List and the Proprietary Information as trade secrets of the
Corporation, the undersigned hereby undertakes and agrees as follows:
1. The undersigned will not use, disclose, duplicate, or otherwise offer
to others or have any interest in any business which shall use, disclose,
duplicate, or otherwise offer to others, all or any part of the Proprietary
Information (unless such item of Proprietary Information is generally known,
other than by reason of any act of the undersigned) or of the List.
2. The undersigned will not, for a period of eighteen (18) months from
the date of closing of the transactions contemplated by the Agreement or, if the
undersigned shall be or become an employee of the Corporation, for a period of
eighteen (18) months after termination of the employment of the undersigned by
the Corporation for whatever reason, directly or indirectly, on his own behalf,
or on behalf of any other person, firm or corporation, whether as officer,
director, shareholder, partner, employee, consultant or otherwise (i) sell, or
solicit the sale of, or have any interest in any business which shall sell or
solicit the sale of, any product or service which was sold or offered for sale
by the Corporation on the date hereof or, if the undersigned shall be or become
an employee of the Corporation, any such product or service sold or offered for
sale by the Corporation during the term of the employment of the under-
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signed by the Corporation, to any person, firm or corporation which was on the
List on the date of closing as a customer, distributor or user of the
Corporation's products or services or, if the undersigned shall be or become an
employee of the Corporation, during the term of the employment of the
undersigned by the Corporation or (ii) purchase, or solicit the purchase of, or
have any interest in any business which shall purchase or solicit the purchase
of, any product or supply (other than any product or supply generally available
at competitive prices in ample quantity) which was purchased by the Corporation
on the date of closing or, if the undersigned shall be or become an employee of
the Corporation, was purchased by the Corporation during the term of employment
of the undersigned by the Corporation, from any person, firm or corporation
which is on the List on the date of closing as a supplier to the Corporation or,
if the undersigned shall be or become an employee of the Corporation, during the
term of employment of the undersigned by the Corporation.
3. The undersigned will not, for a period of one year from the date of
closing of the transactions contemplated by the Agreement or, if the undersigned
shall be or become an employee of the Corporation, for a period of six months
after termination of the employment of the undersigned by the Corporation for
whatever reason, directly or indirectly, on his own behalf, or on behalf of any
other person,
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firm or corporation, whether an officer, director, shareholder, partner,
employee, consultant or otherwise, engage in any business within the
geographical area in which the Corporation is doing business on such date of
closing or such date of termination of employment, which is competitive with any
business of the Corporation or any of its affiliates as conducted at such date.
4. The undersigned agrees that he will not, for a period of two years
from the date of closing of the transactions contemplated by the Agreement or,
if the undersigned shall be or become an employee of the Corporation, for a
period of two years after termination of the employment of the undersigned by
the Corporation for whatever reason, directly or indirectly, hire, entice away,
or in any other manner persuade any other employee of the Corporation or any
affiliate to discontinue or terminate his employment with the Corporation or any
such affiliate.
5. The undersigned acknowledges that the Purchaser will be irreparably
damaged if the provisions of this Undertaking are not specifically enforced, and
agrees that the Purchaser shall be entitled to an injunction restraining any
violation of paragraphs 1, 2, 3 or 4 of this Undertaking by the undersigned and
by anyone else who, with knowledge of this Undertaking, participates in, or
benefits by, its violation (without any bond or other security being required),
or any other appropriate decree of specific performance. This
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relief shall not be exclusive and shall be in addition to any other remedy which
the Purchaser may have.
6. If any provision of this Undertaking is held to be unenforceable for
any reason, either in whole or in part, the court making such determination
shall have the power to modify such provision, and this Undertaking shall then
be enforceable and applicable in such modified form.
If any action or proceeding is instituted to enforce a violation of any
provision of this Undertaking and a decree granting an injunction or other
equitable relief is issued in such action or proceeding, the term of the
restriction or restrictions contained in this Undertaking that was the subject
of such decree shall be extended to a date that in no event is less than one
year from the date of entry of such decree.
This Undertaking shall inure to the benefit of the Purchaser and its
successors and assigns, shall be binding upon the undersigned and his legal
representatives and may not be modified or terminated orally.
/s/ Thomas J. Cobery
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