This NonCompetition Agreement involves
Title: Non-Competition Agreement
Governing Law: Florida Date: 1/19/2016
Industry: Auto and Truck Manufacturers Sector: Consumer Cyclical
This Non-Competition And Restrictive Covenant Agreement (this “ Agreement ”), is made and entered into as of January 15, 2016, with an effective date (the “ Effective Date ”) of January 4, 2016 between Acacia Diversified Holdings, Inc., a Texas corporation (together with its subsidiaries and affiliates, “ Acacia ” or the “ Company ”), and Richard K. Pertile, a Florida resident (“ Pertile ”).
WHEREAS , the execution and delivery of this Agreement by the Company and Pertile is a condition to the closing of the transaction contemplated by the Asset Purchase Agreement dated as of the date hereof, by and among the Company (as “ Buyer ”) and the MariJ Group (as “ Seller ”) (the “ Purchase Agreement ”).
WHEREAS , Pertile has acquired, through his ownership and management of the MariJ Group and his relationship as a director, officer and/or employee thereof, intimate knowledge regarding the business, customers, suppliers, information and processes of or relating to the Seller.
WHEREAS , Pertile will benefit from the closing of the transactions contemplated in the Purchase Agreement, which benefits constitute adequate and sufficient consideration for the covenants and obligations made in this Agreement.
WHEREAS , Pertile and the Company desire to enter into this Agreement on the terms and conditions hereafter set forth.
NOW THEREFORE , in consideration of the covenants and promises contained herein, and given pursuant to the Purchase Agreement, the parties hereto agree as follows:
1. ACKNOWLEDGEMENT; INCORPORATION OF RECITALS . Pertile hereby acknowledges receipt of adequate and sufficient consideration from the Company for the covenants and agreements made in this Agreement. The recitals set forth above are, by this reference, incorporated into and deemed a part of this Agreement.
2. NON-COMPETE AND NON-SOLICITATION
(a) Non-Competition . During the Restricted Term, Pertile agrees that neither he nor any of his Related Persons will, in any manner, anywhere in the Restricted Territory, directly or indirectly, on behalf of himself or any other Person other than the Company, invest in, own, manage, operate, finance, control, advise, render services to or guarantee the obligations of any Person engaged in or planning to become engaged in the Business as hereafter defined (“ Business ”).
(b) Non-Solicitation . During the Restricted Term, Pertile agrees that neither he nor his Related Persons, in any manner, anywhere in the Restricted Territory, directly or indirectly, on behalf of himself or any other Person will (i) solicit the business of any Person who is a customer or demonstrably identified potential customer of the Seller or the Company (individually and collectively the “ Joint Parties ”) for the products or services then provided or sold by the Joint Parties in any manner that could be likely to result in such Person curtailing or canceling any business or contracts that such Person has or may come to have with the Joint Parties or in any way interfere with the relationship between the Joint Parties and such Person; (ii) cause,
induce or attempt to cause or induce any actual or potential customer, supplier, employee, consultant or other business relation of the Joint Parties to cease doing business with the Company, to deal with any competitor of the Company, or in any way interfere with its relationship with the Company; or (iii) hire, employ, engage, retain or attempt to hire, employ, engage or retain any employee or independent contractor of the Company or in any way interfere with the relationship between the Company and any of its employees or independent contractors.
3. CONFIDENTIAL INFORMATION .
(a) Confidential Information; Restriction . Pertile recognizes and acknowledges that certain assets of the Joint Parties, including without limitation information regarding customers, pricing policies, methods of operation, proprietary computer programs, sales, products, profits, costs, markets, key personnel, formulae, product applications, technical processes, potential acquisition or joint venture candidates and trade secrets which may have been made available to Pertile, whether in writing, in computer form, reduced to a tangible form in any medium, or conveyed orally, and which gives the Company a competitive advantage over other individuals or companies which do not have access to this information (hereinafter called “ Confidential Information ”) are valuable, special, and unique assets of the Company. Pertile acknowledges that the Company is the owner of the Confidential Information and agrees not to dispute, contest or deny any such ownership rights of the Company. Pertile shall not use, divulge, reproduce, distribute, reverse engineer or disclose (in any way or in any manner) any Confidential Information to any person, firm, corporation, association, or any other entity for any reason or purpose whatsoever, directly or indirectly, except as may be required by law, unless and until such Confidential Information becomes publicly available other than as a consequence of the breach by Pertile of his confidentiality obligations hereunder. Pertile agrees to take all reasonable precautions to prevent the inadvertent disclosure of the Confidential Information to any unauthorized person; agrees not to transport or cause to be transported the Confidential Information outside the premises of the Company, except as necessary or desired to carry out Pertile’s duties as prescribed by the Company; agrees not, without the Company’s express authorization, to participate directly or indirectly in the development, marketing, sale, licensing or other exploitation of software or other products or services which embody or are derived from Confidential Information; and agrees that in the event Pertile becomes aware that any Person is taking or threatens to take any action which would compromise the Confidential Information or violate any of the foregoing provisions were that Person subject to the provisions of this Section 3 , promptly advise the Company of all facts concerning such action or threatened action. Pertile expressly agrees that the disclosures prohibited hereby include disclosure of similarities or possible similarities between the Confidential Information and the work product of another person or company.
(b) Protective Order . In the event that Pertile is required to disclose any Confidential Information pursuant to an order, regulation, ruling, governmental request, summons or subpoena, Pertile shall promptly notify the Company of such pending disclosure and reasonably cooperate in assisting the Company (at the Company’s expense) in seeking a protective order or in objecting to such request, summons or subpoena with regard to the Confidential Information.
(c) Cooperation . Pertile agrees to reasonably cooperate with the Company in the prosecution or defense of all threatened clai