Exhibit 10.27


 


NON-COMPETITION AND
NON-SOLICITATION AGREEMENT


THIS NON-COMPETITION AND
NON-SOLICITATION AGREEMENT (the “Agreement”) is entered into and effective as
of July 31, 2006 (the “Effective Date”), by and between IT&E International
Group, Inc. a Delaware corporation (“IT&E”), and Philip Lavin, Ph.D., an
individual (“Seller”), the Chief Executive Officer and majority shareholder of
Averion Inc., a Massachusetts corporation (“Averion”), with respect to the
following facts:


A.            Pursuant to that certain Agreement
and Plan of Merger dated June 30, 2006, by and among IT&E, IT&E Merger
Sub, Inc., IT&E Acquisition Co., Inc. and Averion (the “Merger Agreement”),
Averion shall merge with IT&E Merger Sub, Inc.;


B.            Seller will benefit from the
transactions contemplated by the Merger Agreement;


C.            Seller has made business contacts
through Averion and is otherwise intimately familiar with, and knowledgeable
about, the ongoing business of Averion and Averion’s confidential information;


D.            Seller acknowledges and agrees that
the delivery of this Agreement is a material inducement and closing condition
for IT&E proceeding with and consummating the transactions contemplated by
the Merger Agreement; and


E.             Seller acknowledges and agrees that
the purpose of this Agreement is the protection of the legitimate business
interests of IT&E, including, without limitation, the goodwill of any and
all IT&E Entities (as defined below).


NOW, THEREFORE, in
consideration of the mutual covenants herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which are acknowledged
by each signatory hereto, the parties hereto covenant and agree as follows:


1.             Definitions.  For purposes of this Agreement, the following
terms have the meanings specified or referred to in this Section.


1.1.          “Person” means any individual,
corporation (including, by way of example only and without limitation, any
non-profit corporation), general or limited partnership, limited liability
company, joint venture, estate, trust, association, organization, labor union
or other entity or governmental body.


1.2.          “Related Person” means (i) with
respect to a specified Person that is an individual, each other member of such
individual’s Family; and (ii) with respect to a specified Person other
than an individual, any Person that directly or indirectly controls, is
directly or indirectly controlled by or is directly or indirectly under common
control with such specified Person.  For
purposes of this definition, the “Family” of an individual includes the
individual, the individual’s spouse and former spouses, any other natural
person who is related to the individual or the individual’s spouse within the
second degree and any other natural person who resides with such individual.









 



 


2.             Non-Competition.  As a material inducement for IT&E to
consummate the transactions contemplated by the Merger Agreement, Seller agrees
that:


2.1.          During the period Seller maintains a
business relationship, whether as an employee, consultant or otherwise, with
IT&E or any subsidiary or controlled affiliate of IT&E (IT&E and
each of its controlled affiliates and subsidiaries shall be referred to herein
individually as an “IT&E Entity,” and collectively as the “IT&E
Entities”), and for a period of two (2) years thereafter:


(a)           Seller will not, directly or
indirectly (through Related Persons or otherwise), engage or invest in, own,
manage, operate, finance, control or participate in the ownership, management,
operation, financing or control of, be employed by, associated with or in any
manner connected with, lend its name or any similar name to, lend its credit to
or render services or advice to any business, venture and/or enterprise which
competes in whole or in part with the businesses and/or activities of any
IT&E Entity in the United States; provided, however, that Seller may
purchase or otherwise acquire up to (but not more than) five percent (5%) of
any class of securities of any enterprise (but without otherwise participating
in the activities of such enterprise) if such securities are listed on any
national or regional securities exchange or have been registered under Section
12(g) of the Securities Exchange Act of 1934, as amended.  Seller agrees that this covenant is
reasonable with respect to its duration, geographical area and scope that the
purpose of this covenant is to protect the legitimate business interests of
IT&E, including, without limitation, the goodwill of any and all IT&E
Entities.  Notwithstanding the foregoing,
Seller may at any time: (i) serve as a trustee of, perform services for, and
otherwise be affiliated with Boston Biostatistics Research Foundation in a
manner substantially similar to the current role of Seller with such foundation;
provided that Boston Biostatistics Research Foundation remains a non-profit
entity; and (ii) serve as a trustee of, perform services for, and otherwise be
affiliated with a college, university, or non-profit research foundation;
provided that the foregoing exceptions to Seller’s obligations pursuant to this
Section 2.1(a) in no way materially interfere with Seller’s obligations
pursuant to that certain Employment Agreement dated as of even date hereof
between IT&E and Seller (the “Employment Agreement”).  Seller agrees that this covenant is reasonable
with respect to its duration, geographical area and scope.


(b)           Seller will not, directly or
indirectly, either for itself or any other Person, (i) induce or attempt to
induce any employee or consultant of any IT&E Entity to leave the employ of
or consultancy with any IT&E Entity; (ii) in any way interfere with the
relationship between any IT&E Entity and any employee or consultant of such
IT&E Entity; or (iii) cause or encourage any other Person to do either of
the foregoing.


(c)           Seller will not, directly or
indirectly, either for itself or any other Person, interfere with, impair,
disrupt or damage any IT&E Entity’s relationship with any of its customers,
customer prospects, vendors, contractors, collaborators, joint venturers,
partners, licensors, or licensees by soliciting or encouraging others to
solicit any of them for the purpose of diverting or taking away business or
opportunities from any IT&E Entity.


2.2.          In the event of a breach by Seller of
any covenant set forth in Section 2.1 above, the term of such covenant will be
extended by the period of the duration of such breach.



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3.             Remedies.  If Seller breaches the covenants set forth in
Section 2 above, IT&E shall be entitled to the following remedies together
with any other remedies IT&E may be entitled to in law or equity:  (i) the right to obtain damages from
Seller; and (ii) in addition to its right to damages and any other rights
it may have, to obtain injunctive or other equitable relief to restrain any
breach or threatened breach or otherwise to specifically enforce the provisions
of Section 2 above, it being agreed that money damages alone would be
inadequate to compensate IT&E and would be an inadequate remedy for such
breach.  The rights and remedies of the
parties to this Agreement are cumulative and not alternative.


4.             Notices.  All notices, consents, waivers and other
communications under this Agreement must be in writing and will be deemed to
have been duly given when (i) delivered by hand (with written confirmation of
receipt); (ii) sent by facsimile (with written confirmation of receipt); or
(iii) when received by the addressee, if sent by a nationally recognized
overnight delivery service, return receipt requested, in each case to the
appropriate addresses and facsimile numbers set forth below or on the signature
pages hereto (or to such other address as a party may designate by notice to
the other parties):


	
  If to IT&E:

  	
   

  	
  IT&E International Group, Inc.

  Attention: Kelly Alberts, President

  505 Lomas Santa Fe Drive, Suite 200

  Solana Beach, California 92075

  Telephone: (858) 777-1644

  Facsimile: (858) 366-0961

  
	
   

  	
   

  	
   

  
	
  with a required copy
  to:

  	
   

  	
  Foley & Lardner LLP

  Attention: Kenneth D. Polin, Esq.

  402 West Broadway, Suite 2300

  San Diego, California 92101

  Telephone: (619) 234-6655

  Facsimile: (619) 234-3510

  
	
   

  	
   

  	
   

  
	
  If to Seller:

  	
   

  	
  Philip Lavin, Ph.D

  225 Turnpike Road

  Southboro, Massachusetts 01772

  Telephone: (508) 416-2616

  Facsimile: (508) 416-2796

  
	
   

  	
   

  	
   

  
	
  With a required copy
  to:

  	
   

  	
  Mirick, O’Connell, DeMallie & Lougee, LLP

  Attention: Jeffrey L. Donaldson

  100 Front Street

  Worcester, MA 01608

  Telephone: (508) 791-8500

  Facsimile: (508) 791-8502

  



 



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5.             Governing
Law; Jurisdiction.  This Agreement
will be governed by and construed in accordance with the laws of the United
States and the Commonwealth of Massachusetts, without reference to its
conflicts of laws provisions.


6.             Waiver.  The rights and remedies of the parties to
this Agreement are cumulative and not alternative.  Neither the failure nor any delay by any
party in exercising any right, power or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power or privilege; and no single or partial exercise of any such right, power
or privilege will preclude any other or further exercise of such right, power
or privilege or the exercise of any other right, power or privilege.  To the maximum extent permitted by applicable
law, (i) no claim or right arising out of this Agreement or the documents referred
to in this Agreement can be discharged by one party, in whole or in part, by a
waiver or renunciation of the claim or right unless in writing signed by the
other party; (ii) no waiver that may be given by a party will be applicable
except in the specific instance for which it is given; and (iii) no notice to
or demand on one party will be deemed to be a waiver of any obligation of such
party or of the right of the party giving such notice or demand to take further
action without notice or demand as provided in this Agreement or the documents
referred to in this Agreement.


7.             Assignment,
Successors, No Third-Party Rights and Identity of Parties.  IT&E may assign any of its rights under
this Agreement to a Related Person of IT&E, or a successor-in-interest to
IT&E.  Seller may not assign or
delegate its obligations under this Agreement. 
This Agreement will apply to, be binding in all respects upon and inure
to the benefit of the successors and permitted assigns of the parties hereto.


Nothing expressed or
referred to in this Agreement will be construed to serve to enlarge the scope
of, or intent protected by, this Agreement, or give any Person other than the
parties to this Agreement any legal or equitable right, remedy or claim under
or with respect to this Agreement or any provision of this Agreement.  This Agreement and all of its provisions and
conditions are for the sole and exclusive benefit of the parties to this
Agreement and their successors and permitted assigns.


8.             Severability.  In the event any provision of this Agreement
is found to be unenforceable, invalid or illegal by an arbitrator or court of
competent jurisdiction, such provision shall be deemed modified to the extent
necessary to allow enforceability of the provision as so limited, it being
intended that the parties shall receive the benefit contemplated herein to the
fullest extent permitted by law.  If a
deemed modification is not satisfactory in the judgment of such arbitrator or
court, the unenforceable, invalid or illegal provision shall be deemed deleted,
and the legality, validity and enforceability of the remaining provisions shall
not be affected thereby.


9.             Section
Headings; Construction.  The headings
set forth in this Agreement are for convenience only and shall not be used in interpreting
this Agreement.  This Agreement has been
drafted by legal counsel representing IT&E, but Seller has participated in
the negotiation of its terms. 
Furthermore, Seller acknowledges that Seller has had an opportunity to
review the Agreement and has had it reviewed and negotiated by legal counsel
acting on his/her behalf, and,



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therefore, the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Agreement.


10.           Counterparts;
Facsimile.  This Agreement may be
executed in one or more counterparts, all of which when fully executed and
delivered by all parties hereto and taken together shall constitute a single
agreement, binding against each of the parties. 
To the maximum extent permitted by law or by any applicable governmental
authority, any document may be signed and transmitted by facsimile with the
same validity as if it were an ink-signed document.  Each signatory below represents and warrants
by his or her signature that he or she is duly authorized (on behalf of the
respective entity for which such signatory has acted) to execute and deliver
this instrument and any other document related to this transaction, thereby
fully binding each such respective entity.


11.           Expenses.  The prevailing party in any proceeding
relating to the enforcement or interpretation of this Agreement (the “Proceeding”)
may recover from the non-prevailing party all costs, expenses and actual
attorney’s fees (including, by way of example only and without limitation,
expert witness and other consultants fees and costs) relating to or arising out
of (i) the Proceeding (whether or not the Proceeding proceeds to
judgment); and (ii) any post-judgment or post-award Proceeding including,
without limitation, one to enforce or collect any judgment or award resulting
from the Proceeding.  All such judgments
and awards shall contain a specific provision for the recovery of all such
subsequently incurred costs, expenses and actual attorney’s fees.


12.           Entire
Agreement.  This Agreement (together
with the Merger Agreement, the Employment Agreement and all documents referred
to therein) constitutes the entire agreement between the parties with respect
to the subject matter of this Agreement and supersedes all prior written and
oral agreements and understandings between the parties with respect to the
subject matter of this Agreement.  This
Agreement may not be amended except by a written agreement executed by the
party to be charged with the amendment.


13.           Miscellaneous
Provisions.  The parties hereto agree
that the restrictions on competition, solicitation and disclosure in this
Agreement are fair, reasonable and necessary for the protection of the
interests of IT&E.  It is the
intention of the parties only to restrict the activities of Seller as necessary
to protect the legitimate business interests of IT&E, including, without
limitation, the goodwill of any and all IT&E Entities, and nothing
contained herein shall be construed to prevent Seller from continuing in
business during or after the term of this Agreement in lines of business or
geographical areas not subject to this Agreement.  If any restriction set forth in this
Agreement is found by any court of competent jurisdiction to be unenforceable
because it extends for too long a period of time or over too great a range of
activities or in too broad a geographic area, then such court is hereby
authorized by the undersigned parties to reform the offending restriction to
render it enforceable even if in a modified form.


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IN WITNESS WHEREOF, the
parties have executed and delivered this Non-Competition and Non-Solicitation
Agreement as of the date first written above.


 


	
  “IT&E”

  	
  IT&E INTERNATIONAL GROUP, INC.

  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alastair McEwan

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Alastair McEwan

  
	
   

  	
   

  	
  Title:

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  “Seller”

  	
   

  	
  /s/ Philip Lavin, Ph.D.

  	
   

  
	
   

  	
   

  	
  Philip Lavin, Ph.D, an individual

  
					



 


[Signature Page to
Non-Competition and Non-Solicitation Agreement]