{"id":38649,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/confidentiality-non-solicitation-and-non-competition-agreement.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"confidentiality-non-solicitation-and-non-competition-agreement","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/confidentiality-non-solicitation-and-non-competition-agreement.html","title":{"rendered":"Confidentiality, Non-Solicitation and Non-Competition Agreement &#8211; AFC Cable Systems Inc. and Robert R. Wheeler"},"content":{"rendered":"<pre>        CONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETITION AGREEMENT\n \n    CONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETITION AGREEMENT, effective\nas of the date provided below, by and between, AFC CABLE SYSTEMS, INC. (the\n'Company') and ROBERT R. WHEELER ('Executive').\n \n    The Company has entered into a merger agreement pursuant to which the\nCompany will become a subsidiary of a indirect wholly-owned subsidiary of Tyco\nInternational Ltd. (the 'Merger Agreement'). The Company wishes to protect the\nconfidential information of the Company and to protect against the Executive\nusing his skills, knowledge, experience, ideas and influence for the benefit of\na competitor of the Company. Executive is willing to enter into an agreement to\nprovide such protection to the Company upon the terms and conditions set forth\nin this Agreement. In consideration of the foregoing and the mutual agreements\nherein contained, the, parties agree as follows.\n \n    1.  CONFIDENTIALITY, NON-COMPETITION.\n \n    (a) Executive acknowledges that: the business of designing, manufacturing\nand supplying pre-wired armored cables as conducted by the Company and its\nsubsidiaries (the 'Business') is intensely competitive and Executive's former\nand current position with the Company has exposed, and will continue to expose,\nExecutive to knowledge of confidential information of the Company; the direct\nand indirect disclosure of any such confidential information to existing or\npotential competitors of the Company would place the Company at a competitive\ndisadvantage and would do damage, monetary or otherwise, to the Company's\nBusiness; and the engaging by Executive in any of the activities prohibited by\nthis Agreement may constitute improper appropriation and\/or use of such\ninformation and trade secrets. Executive expressly acknowledges the trade secret\nstatus of the confidential information and that the confidential information\nconstitutes a protectable business interest of the Company.\n \n    (b) For purposes of this Agreement, the Company shall be construed to\ninclude the Company and its current and future subsidiaries and affiliates\nengaged in the Business.\n \n    (c) From and after the Effective Time (as defined in the Merger Agreement)\n(the 'Effective Time'), Executive shall not, directly or indirectly, whether\nindividually, as a director, stockholder, owner, partner, employee, principal or\nagent of any business, or in any other capacity, make known, disclose, furnish,\nmake available or utilize any of the confidential information of the Company\nother than in the proper performance of the duties contemplated herein, or as\nrequired by a court of competent jurisdiction or other administrative or\nlegislative body; PROVIDED THAT, prior to disclosing any of the confidential\ninformation to a court or other administrative or legislative body, Executive\nshall promptly notify the Company so that it may seek a protective order or\nother appropriate remedy. Executive agrees to return all confidential\ninformation, including all photocopies, extracts and summaries thereof, and any\nsuch information stored electronically on tapes, computer disks or in any other\nmanner to the Company at any time upon request by the Company and upon the\ntermination of his engagement for any reason.\n \n    (d) From the Effective Time until the fifth anniversary of the Effective\nTime (the 'Non-Competition Period'), Executive shall not engage in Competition\n(as defined below) with the Company. For purposes of this Agreement,\n'Competition' by Executive shall mean Executive's engaging in, or otherwise\ndirectly or indirectly being employed by or acting as a consultant or lender to,\nor being a director, officer, employee, principal, licensor, trustee, broker,\nagent, stockholder, member, owner, joint venturer or partner of, or permitting\nhis name to be used in connection with the activities of any other business or\norganization which is engaged in the same business as the Business of the\nCompany as the same shall be constituted at any time during or following his\nengagement; PROVIDED THAT, it shall not be a violation of this Agreement for\nExecutive to (i) become the registered or beneficial owner of less than five\npercent (5%) of any class of the capital stock of a competing\n\ncorporation registered under the Securities Exchange Act of 1934, as amended or\n(ii) be employed by an entity that engages in the same business as the Business\nof the Company, so long as Executive does not directly perform services for or\nwork within a division or business unit of such entity that engages in such\nbusiness.\n \n    (e) Without limiting the generality of the foregoing, during the\nNon-Competition Period, Executive agrees that he will not, directly or\nindirectly, for his benefit or for the benefit of any other person, firm or\nentity, do any of the following:\n \n        (i) solicit from any customer doing business with the Company business\n    of the same or of a similar nature to the Business conducted between the\n    Company and such customer;\n \n        (ii) solicit the employment or services of any person who at the time is\n    employed by or a consultant to the Company; or\n \n        (iii) make any statements or comments of a defamatory or disparaging\n    nature to third parties regarding the Company or its officers, directors,\n    personnel, products or services.\n \n    (f) Executive acknowledges that this Agreement is being entered into in\nconnection with the consummation of the transactions contemplated by the Merger\nAgreement, that Executive's agreement to the terms set forth herein are a\ncritical inducement to the entering into the Merger Agreement by the parties\nthereto, that the services to be rendered by him to the Company are of a special\nand unique character, which gives this Agreement a particular value to the\nCompany, the loss of which may not be reasonably or adequately compensated for\nby damages in an action at law, and that a material breach by him of any of the\nprovisions contained herein will cause the Company irreparable injury. Executive\ntherefore agrees that the Company shall be entitled, in addition to any other\nright or remedy, to a temporary, preliminary and permanent injunction, without\nthe necessity of proving the inadequacy of monetary damages or the posting of\nany bond or security, enjoining or restraining Executive from any such\nviolation.\n \n    (g) Executive further acknowledges and agrees that due to the uniqueness of\nhis services and confidential nature of the information he will possess, the\ncovenants set forth herein are reasonable and necessary for the protection of\nthe business and goodwill of the Company; and it is the intent of the parties\nhereto that if in the opinion of any court of competent jurisdiction any\nprovision set forth in this Agreement is not reasonable in any respect, such\ncourt shall have the right, power and authority to modify any and all such\nprovisions as to such court shall appear not unreasonable and to enforce the\nremainder of this Agreement as so modified.\n \n    2.  CONSIDERATION.\n \n    In consideration for and subject to Executive's agreement to the covenants\nset forth herein, the Company shall pay to Executive $1,200,000 (the\n'Non-Competition Fee'), payable in monthly installments of $20,000 paid by the\nCompany as of the 15th day of each month occurring during the Non-Competition\nPeriod, subject to the following:\n \n        (i) in the event Executive's employment with the Company is\n    involuntarily terminated by the Company during the Non-Competition Period,\n    the Company shall pay to Executive the full amount of any then remaining\n    unpaid balance of the Non-Competition Fee within thirty (30) days following\n    the date of Executive's termination of employment;\n \n        (ii) in the event Executive voluntarily resigns his employment with the\n    Company during the Non-Competition Period, the Company shall continue to pay\n    to Executive the Non-Competition Fee in monthly installments of $20,000\n    until the first anniversary of Executive's termination of employment (or, if\n    sooner, until the full amount of the Non-Competition Fee has been paid) and\n    shall pay the then remaining unpaid balance of the Non-Competition Fee, if\n    any, as of the anniversary of Executive's termination of employment subject\n    to earlier payment under clause (iii) immediately following;\n\n        (iii) in the event of Executive's death during the Non-Competition\n    Period, the Company shall pay to Executive's estate the full amount of any\n    then remaining unpaid balance of the Non-Competition Fee within thirty (30)\n    days following Executive's death; and\n \n        (iv) notwithstanding anything to the contrary contained above in this\n    Section 2, if at any time during Non-Competition Period it is determined by\n    a court of competent jurisdiction that Executive has breached the covenants\n    contained in this Agreement, the Company may withhold any portion of the\n    Non-Competition Fee not yet paid, without prejudice to the Company's right\n    to pursue equitable and legal remedies for enforcement and recovery under\n    this Agreement.\n \n    (a) EFFECTIVENESS; TERMINATION; SURVIVAL.\n \n    Notwithstanding any provision hereof to the contrary, it is the intention of\nthe parties hereto that: (i) this Agreement shall become effective at the\nEffective Time; and (ii) from and after the termination of the Merger Agreement\nin accordance with its terms at any time prior to the Effective Time, the\ncovenants contained herein shall be deemed abandoned and this Agreement shall\nforthwith become void.\n \n    3.  ENTIRE AGREEMENT. This Agreement sets forth the entire agreement between\nthe parties with respect to its subject matter and merges and supersedes all\nprior discussions, agreements and understandings of every kind and nature\nbetween any of them and neither party shall be bound by any term or condition\nother than as expressly set forth or provided for in this Agreement. This\nAgreement may not be changed or modified nor may any of its provisions be\nwaived, except by an agreement in writing, signed by the parties hereto.\n \n    4.  INDEMNIFICATION. Anything in this Agreement to the contrary\nnotwithstanding, the Company agrees to pay all costs and expenses incurred by\nExecutive in connection with the enforcement of his rights and entitlements\nunder this Agreement and will indemnify and hold harmless Executive from and\nagainst any damages, liabilities and expenses (including without limitation fees\nand expenses of counsel) incurred by Executive in connection with any litigation\nor threatened litigation, including any regulatory proceedings arising out of\nthe making of this Agreement or the enforcement of Executive's rights under this\nAgreement.\n \n    5.  WAIVER. The failure of any party to this Agreement to enforce any of its\nterms, provisions or covenants shall not be construed as a waiver of the same or\nof the right of such party to enforce the same. Waiver by any party hereto of\nany breach or default by any other party of any term or provision of this\nAgreement shall not operate as a waiver of any other breach or default.\n \n    6.  SEVERABILITY. In the event that any one or more of the provisions of\nthis Agreement shall be held to be invalid, illegal or unenforceable, the\nvalidity, legality and enforceability of the remainder of the Agreement shall\nnot in any way be affected or impaired thereby. Moreover, if any one or more of\nthe provisions contained in this Agreement shall be held to be excessively broad\nas to duration, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent allowed\nby applicable law.\n\n    7.  NOTICES. Any notice given hereunder shall be in writing and shall be\ndeemed to have been given when delivered by messenger or courier service\n(against appropriate receipt), or mailed by registered or certified mail (return\nreceipt requested), addressed as follows.\n \n\n                                \nIf to the Company:                 AFC Cable Systems, Inc.\n                                   50 Kennedy Plaza, Suite 1250\n                                   Providence, Rhode Island 02903\n                                   Attention: President\n \nIf to Executive:                   Robert R. Wheeler\n                                   272 Duchaine Blvd.\n                                   New Bedford, MA 02745\n \nwith a copy to:                    David C. Chapin, Esq.\n                                   Ropes &amp; Gray\n                                   One International Place\n                                   Boston, Massachusetts 02110\n\n \nor at such other address as shall be indicated to either party in writing.\nNotice of change of address shall be effective only upon receipt.\n \n    8.  GOVERNING LAW. This Agreement shall be governed by and construed in\naccordance with the laws of the State of Rhode Island without regard to\nconflicts of law principles.\n \n    9.  DESCRIPTIVE HEADINGS. The section headings contained herein are for\nreference purposes only and shall not in any way affect the meaning or\ninterpretation of this Agreement.\n \n    10. COUNTERPARTS. This Agreement may be executed in counterparts, each of\nwhich shall be deemed an original for all purposes but which, together, shall\nconstitute one and the same instrument.\n \n    IN WITNESS WHEREOF, the parties have executed this Agreement as of the\nEffective Time.\n \n\n                                                     \n                                                AFC CABLE SYSTEMS, INC.\n \n                                                By:        \/s\/ Ralph R. Papitto\n                                                           ------------------------\n                                                           Name: Ralph R. Papitto\n                                                           Title: Chairman and Chief\n                                                                  Executive Officer\n \n                                                           \/s\/ Robert R. Wheeler\n                                                           ------------------------\n                                                           ROBERT R. WHEELER\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9133],"corporate_contracts_industries":[9452],"corporate_contracts_types":[9539,9549],"class_list":["post-38649","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-tyco-international-ltd","corporate_contracts_industries-manufacturing__conglomerates","corporate_contracts_types-compensation","corporate_contracts_types-compensation__noncompetition"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38649","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38649"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38649"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38649"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38649"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}