NON-COMPETITION AGREEMENT
THIS
NON-COMPETITION
AGREEMENT (this "Agreement") is made this 15th day of
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August, 2006
(the "Effective
Date"), by and among Lori H. Mitchell ("Seller"),
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Complete Tower
Sources, Inc., a Louisiana corporation ("Company"),
and Ayin
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Holding Company
Inc., a Delaware corporation ("Purchaser"). All
capitalized
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terms not otherwise defined herein shall
have the meaning given to them in the
Stock Purchase
Agreement, dated as of
June 20, 2006, among Company, Purchaser,
and Seller
(the "Stock Purchase Agreement").
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W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller
is the sole shareholder of Complete
Tower Sources, Inc.,
which is in the
business of tower construction for wireless communications (the
"Business");
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WHEREAS, pursuant to
the Stock Purchase Agreement, Purchaser is purchasing
all of the Company's issued and outstanding shares of capital stock;
WHEREAS,
contemporaneously
herewith, Seller and
Mitchell Site Acq., Inc.
("Mitchell") are
entering into an Employment Agreement (the "Employment
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Agreement");
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WHEREAS, Company
and Purchaser would not have entered into the Stock
Purchase Agreement,
and Mitchell would not have entered into the
Employment
Agreement, without
ensuring the confidentiality of certain information and
protection against
competition
and solicitation by the Seller; and
WHEREAS, Company, or its respective assigns, will continue to
engage in its
business throughout
the states of Louisiana, Alabama,
Mississippi, and Texas
(the "Territory").
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NOW,
THEREFORE,
for and in consideration of the mutual covenants and
agreements contained
herein and in the
Stock Purchase Agreement and Employment
Agreement, the
benefits which Seller will receive from the transactions
contemplated by the Stock Purchase Agreement and Employment
Agreement, and other
valuable
consideration, the
receipt and sufficiency of which are hereby
acknowledged, the
parties hereto agree as follows:
1.
COVENANTS
1.1
Acknowledgements by
Seller. Seller acknowledges the following:
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(a)
Seller has
been engaged in the
Business.
Such Business is
highly
competitive.
(b)
Seller's participation
in the Business has provided Seller
with valuable,
confidential and proprietary information concerning the
Business
and its future plans, much of which Seller participated in developing.
(c)
Seller has
had access to and have become acquainted with
various trade
secrets, proprietary data and other
confidential information of
the Business
and may have contributed to such information, consisting of
documents, files,
software, development work computer programs and
databases,
processes,
techniques and
procedures,
and related
<PAGE>
documentation,
compilations of information, records and specifications, used
in
or related
to the Business, including:
(i)
business information,
such as (but not limited to) the
business practices,
suppliers, operational methods, technical processes, future
plans, techniques,
patent information and applications,
leases, contracts and
business plans;
(ii)
financial information, such as (but not limited to)
earnings, sales,
assets, debts, prices,
pricing structure, margins, volume and
quantities of
purchases or sales, and other financial data;
(iii) marketing
information such as
(but not limited to)
prior, ongoing or proposed marketing programs, presentations or
agreements by or
on behalf of the Business, pricing
information, marketing tests and results of
marketing efforts;
(iv)
personnel information,
such as (but not limited to)
employees' personal
or medical histories, compensation, employee incentive
programs, terms
of employment, actual or proposed promotions, hirings,
resignations,
terminations including
reasons for such terminations,
training
methods and
other personnel information;
(v)
customer information,
such as (but not limited to) past,
existing or
prospective
customers'
names, addresses or
backgrounds, customer
specifications and requirements, prices that particular or various
customers are
charged or
pay for services,
proposals or agreements between customers and the
Business, status
of customers'
accounts, and other information about actual or
prospective customers;
and
(vi)
customer or
prospective
customer trade secrets,
proprietary data
and other confidential
information that is provided to Seller
for the sole and exclusive purpose of permitting
Seller to market or provide
products or services of the Business to such customers or
prospective customers.
(d)
Any unauthorized
possession,
communication
or use of
Confidential Information (defined below) would enable Seller (or
any third party
to whom the Seller might disseminate the
Confidential Information) to compete
unfairly with
Company by using the Confidential Information
to such person's
advantage.
(e)
The agreements
and covenants
contained in this Agreement are
essential to
protect the interests of Company in connection with the
transactions
contemplated by
the Stock Purchase Agreement.
(f)
Company and
Ayin Holding Company Inc, would not have
consummated the
transactions
contemplated by the Stock Purchase Agreement, and
Mitchell would
not have entered into the Employment Agreement, but for
the
agreements and
covenants contained in this Agreement.
For
purposes of this Agreement, the trade secrets and confidential
information referred
to in Section 1.1 (c)
above, including those described in
subsections 1.1
(c)(i) through (vi), shall be
collectively referred to as the
"Confidential
Information";
provided, however,
that "Confidential
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<PAGE>
Information" shall
not include
information that (A) is available from sources,
other than
Seller or their respective affiliates, which sources Seller
reasonably believes
do not have a duty of confidentiality to Company
with
respect to such
information, or (B) is or becomes publicly available other than
as a result of any Seller's breach of this Agreement.
1.2
Noncompetition. For
a period of two (2) years from the date of
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this Agreement
or, if longer, for a period beginning on the date of this
Agreement and
ending two (2) years
after the Employment Agreement's Expiration
Date (as defined in the Employment Agreement), (the "Restricted
Period"), Seller
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shall not,
on its own behalf or
on behalf of others (except for the benefit of
Purchaser), directly or indirectly, own, manage, operate, control,
invest in, or
participate in
the ownership, management, operations, or control of, lend
Seller's name or any
similar name to, any person, entity or business engaged in
the Business
in the Territory. Notwithstanding the foregoing: (i) the
noncompetition
restrictions set forth in this Section 1.2 and applicable
during
the Restricted Period
(and only such restrictions) shall terminate and be of no
further force
and effect upon the occurrence of Ayin Holding
Company Inc.'s
failure to
make a payment under the Promissory Note
(as that term is defined
under the Stock Purchase Agreement) where such payment is not
prohibited by
applicable loan
agreements
to which Ayin Holding Company Inc. or
Charys is a
party, and (ii) Seller
shall not be prohibited from having beneficial ownership
of up to 2% of the equity interest of any business entity, the
equity securities
of which are registered under the
Securities Exchange Act of 1934, as amended.
1.3
Payment. In
consideration
for the Seller's fulfillment of the
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covenants and conditions set forth herein, Purchaser shall deliver
to Seller the
Parent Common
Stock, as provided by Section 2.04 of the Stock Purchase
Agreement. Any
and all state or federal income or other
taxes payable on the
amounts paid
pursuant to this Section shall be borne by Seller in their
entirety.
1.4
Nondisclosure of
Confidential
Information.
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(a)
Seller acknowledges
that (i) Company has a legitimate and
continuing proprietary interest in the Confidential Information
that Company has
acquired for significant consideration; and (ii) in order to guard
such interest
of Company, it is necessary for Company to protect all Confidential
Information.
Seller agrees that its
obligations under Section 1.4(b) of this Agreement shall
be absolute
and unconditional.
(b)
Seller shall
not, directly or indirectly, during the
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