Exhibit 10.72
NON-COMPETITION
AGREEMENT
This Non-Competition Agreement (the
“ Agreement ”), dated as of
February 5, 2008, is by and between CDS DP Acquisition, Inc.,
a Florida corporation whose principal place of business is located
at 3030 Horseshoe Drive South, Suite 200, Naples, Florida 34104
(the “ Buyer ”) and Glenn Brosnick
(“ Brosnick ”), an individual currently
residing at the address set forth on the signature page to this
Agreement.
BACKGROUND
INFORMATION
Brosnick is the sole shareholder and
principal of Diabetic Plus, Inc., a Florida corporation (the
“ Company ”), a national
direct-to-consumer mail-order distributor of diabetic testing and
medical supplies that services over 7,500 customers in the United
States and utilizes unique internet data mining software to locate
potential customers of the Company’s products and services
(the “ Business ”). Contemporaneous with
the execution of this Agreement, Brosnick, as sole shareholder of
the Company, will execute an Agreement for the Purchase and Sale of
Assets (the “ Purchase Agreement ”)
whereby the Company will sell substantially all of its assets to
the Buyer.
Since Brosnick has substantial
knowledge, skill and experience in the operation, administration
and marketing of the Business and because Brosnick might be able to
establish, operate or participate in activities that might be
competitive with the activities of the Buyer, as a condition
precedent to the Buyer’s obligation to execute the Purchase
Agreement, Brosnick is required to enter into and execute this
Agreement. Accordingly, for good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged by each of the
parties, they agree as follows:
OPERATIVE
PROVISION
1. Capitalized Terms .
Capitalized terms used but not defined herein shall have the
meanings for such terms that are set forth in the Purchase
Agreement.
2. Non-Solicitation;
Non-Disparagement . 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:
(i) solicit for employment, or employ any person who, at the
time of such solicitation or employment, is an employee or
independent contractor of the Buyer or its Affiliates or was
employed or engaged by the Buyer or its Affiliates during the
twelve month period prior to the solicitation or employment or
induce or attempt to induce any person to terminate his employment
or engagement with the Buyer or its Affiliates; (ii) do
business with or solicit Customers of Buyer or its Affiliates, or
engage in any activity intended to terminate, disrupt or interfere
with the Buyer or its Affiliate’s relationships with their
Customers; or (iii) engage in any conduct or make any
statement disparaging or criticizing the Buyer or its Affiliates,
or any products or services offered by the Buyer or its
Affiliates.
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.
4. Divisibility of Covenant
Period. If any covenant contained in this Agreement is held to
be unreasonable, arbitrary or against public policy, such covenant
shall be considered divisible both as to
-1-
time, Customers, competitive services and
geographical area, such that each month within the specified period
shall be deemed a separate period of time, each Customer a separate
customer, each competitive service a separate service and each
geographical area a separate geographical area, resulting in an
intended requirement that the longest lesser time and largest
lesser customer base, service offering and geographical area
determined not to be unreasonable, arbitrary or against public
policy shall remain effective and be specifically enforceable
against Brosnick.
5. Enforcement . Brosnick
acknowledges that (i) the restrictions contained in this
Agreement are reasonable in scope and are necessary to protect the
Buyer’s legitimate interests in protecting its business, and
(ii) any violation of the restrictions contained in this
Agreement will cause s
