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 Matthew B.
Mitchell ("Seller"),
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Mitchell Site Acq.,
Inc., a Louisiana corporation ("Company"), and Ayin Holding
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Company Inc.,
a Delaware corporation
("Purchaser"). All capitalized terms not
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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 a shareholder, officer and director
of Mitchell Site
Acq., Inc., which is in the business of wireless communications
site acquisition
and project
management
(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 Company are entering into
an Employment
Agreement (the "Employment Agreement");
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WHEREAS, Company
and Purchaser would not have entered into the Stock
Purchase Agreement,
and Company would not have entered into the
Employment
Agreement, without
ensuring the confidentiality of certain information and
protection against
competition
and solicitation by the Seller;
WHEREAS, Company, or its respective assigns, will continue to
engage in its
business throughout
the states of Louisiana, Alabama,
Mississippi, and Texas
(the "Territory"):
and
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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
<PAGE>
computer programs
and databases, processes, techniques and procedures, and
related 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, Wrings,
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
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 l.l(c)(i) through (vi), shall be
<PAGE>
collectively referred
to as the
"Confidential Information"; provided, however,
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that "Confidential
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'').
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Seller 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 Notes (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 pay
to Seller (i)
$3,000,000 in
cash plus (ii) the Parent Common Stock, as
provided by Section
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2,04 of the Stock
Purchase Agreement, upon execution of this 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)
