NON-COMPETITION AND CONFIDENTIALITY
AGREEMENT
THIS NON-COMPETITION AND
CONFIDENTIALITY AGREEMENT (this “ Agreement ”) is made and
entered into as of this 12th day of October, 2006 (the “
Effective Date ”) by and among Cord Blood America,
Inc., a Florida corporation (the “ Buyer ”),
CorCell, Inc., a Delaware corporation (“ CorCell
”), and Vita 34 International AG, a German corporation
(“ Vita 34 ”, and together with CorCell, the
“ Companies ”, and each individually is referred
to herein as a “ Company ”).
BACKGROUND
This Agreement is made pursuant to the
Asset Purchase Agreement by and among the Buyer and the Companies
of even date herewith (“ Asset Purchase Agreement
”).
NOW, THEREFORE, in consideration of the
mutual covenants set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby covenant and agree as
follows:
1.
Defined Terms. The terms used in this Agreement, with their initial
letters capitalized, unless the context thereof otherwise requires,
have the meanings specified in this Section 1. The singular
includes the plural and the masculine gender includes the feminine
and neuter, and vice versa, as the context requires. When used in
this Agreement, the following terms have the meanings set forth
below:
1.01
Agreement means this Non-Competition and Confidentiality
Agreement.
1.02
Affiliate means a Person who directly or indirectly, through
one or more intermediaries, Controls, is Controlled by, or is under
common Control with the Person in question.
1.03
Business Day means any day except a Saturday, Sunday or other day
on which commercial banks in New York, New York are authorized or
required by law to close.
1.04
Buyer has the meaning set forth in the introductory
paragraph of this Agreement.
1.05
Company or Companies
has the meaning set forth in the
introductory paragraph of this Agreement.
1.06
Confidential and Proprietary
Information means any and all
data, formulae, processes, procedures, methods, techniques,
documentation, information, technical knowledge, know how, ideas,
conceptions, records, drawings, schematics, designs,
specifications, test results, evaluations, inventions, discoveries,
product sources and suppliers, customer or client lists or
information, new products and processes being considered or
introduced, plans, pricing, values and prospects of the Buyer,
whether or not protected or protectable by patent, trademark,
service mark or copyright, whether or not labeled as
“confidential” or transmitted in written form, orally,
electronically or by any other means, and
including without limitation any of the
foregoing that may be protectable as a “trade secret”
under applicable law.
1.07
Effective Date means the date specified in the introductory
paragraph of this Agreement.
1.08
Person means an individual, corporation, partnership, joint
venture, trust, estate, unincorporated association, limited
liability company, government agency, political subdivision or any
other entity.
2.
Non-Competition and
Non-Solicitation.
2.01
Non-Competition and Non-Solicitation
Agreement by Companies .
(a)
Subject to the qualifications set forth
in subsections (b) and (c) and Section 2.02 below, for a period of
two years from the date of this Agreement, no Company or an
Affiliate of a Company may:
(i)
directly or indirectly, maintain,
operate, engage in, acquire or own any equity interest in or be
connected with as a stockholder, joint venturer, or partner or
otherwise invest or participate in any equity interests of, any
business that provides services similar to, or in competition with,
the services provided by the Buyer, anywhere in the United
States;
(ii)
directly or indirectly, either
individually or as owner, partner, agent, employee, independent
contractor, consultant or otherwise, maintain, operate or engage in
any business that provides services similar to, or in competition
with, the services provided by the Buyer anywhere in the United
States; or
(iii)
directly or indirectly, (I) solicit for
employment, attempt to solicit for employment or engage the
services of, any person who is an officer or employee of the Buyer
or (II) induce or attempt to induce any customer, supplier,
licensee, licensor or other business relation of the Buyer to cease
doing business with the Buyer.
(b)
Nothing in this Section 2.01 limits the
right of Companies to own shares of common stock of any corporation
whose shares of common stock are registered under Section 12(b) or
12(g) of the Exchange Act so long as (i) the shares so owned
represent less than one percent (1%) of the outstanding
shares of common stock of such corporation and (ii) no officer or
director of either Company is directly or indirectly associated
with such corporation or with any Affiliate of such
corporation.
(c)
The parties agree that to the extent any
provision or portion of this Section 2.01 is held, found or deemed
to be unreasonable, unlawful or unenforceable by a court of
competent jurisdiction, then such provision or portion thereof
shall be deemed to be modified to the extent necessary in order
that such provision or portion thereof shall be legally enforceable
to the fullest extent permitted by applicable law, and further
agree that if any part of this Section 2.01 is so found or deemed
unreasonable, unlawful or unenforceable, such unenforceability
shall not affect the remaining portions of this Section 2.01, which
will continue to be fully enforced;
and the parties further agree that any
court of competent jurisdiction may, and the parties hereto to
hereby expressly authorize, require and empower any court of
competent jurisdiction to, enforce any such provision or portion
thereof in order that any such provision or portion thereof be
enforced to the fullest extent permitted by applicable
law.
2.02
Exceptions to Non-Competition
Obligations .
Notwithstanding the above provisions prohibiting competition,
nothing in this Agreement shall limit the right of Vita 34 to
continue in its present business (other than the business conducted
by CorCell prior to the date of this Agreement, that is, the
business of collecting and storing cord blood) and expand such
business anywhere in the world.
3.
Confidentiality.
3.01
Confidentiality and Non-Disclosure of
Confidential and Proprietary Information . All Confidential and Proprietary Information
of the Buyer (including any that is purchased pursuant to the Asset
Purchase Agreement) that is, or may become, in the possession of
Companies, will be governed by the following terms and
conditions:
(a)
All Confidential and Proprietary
Information is and will remain at all times owned by, and the
property of, the Buyer. Each Company acknowledges and agrees
that the Confidential and Proprietary Information is confidential
and material to the interests, business and affairs of the Buyer
and the disclosure thereof (other than as permitted under this
Agreement) would be detrimental to the interests, business and
affairs of the Buyer. No use of Confidential and Proprietary
Informatio
