exv10w12






Exhibit 10.12




NONCOMPETITION AGREEMENT




     This Amended and Restated Noncompetition Agreement, dated as of February 1, 2001
(“Agreement”), is made by and among TC Group, L.L.C., a Delaware limited liability company (“US
Management Fee Entity”), TC Group Investment Holdings, L.P., a Delaware limited partnership (“US
Carried Interest Entity”), TC Group Cayman, L.P., a Cayman Island exempted limited partnership
(“International Management Fee Entity”) and TC Group Cayman Investment Holdings, L.P., a Cayman
Island exempted limited partnership (“International Carried Interest Entity” and, together with US
Carried Interest Entity, US Management Fee Entity and International Management Fee Entity, the
“Carlyle Parent Entities”) and David M. Rubenstein (the “Partner”).



     NOW, THEREFORE, in consideration of the premises and the representations, warranties and
agreements contained herein, and other good and valuable consideration, the sufficiency of which is
hereby acknowledged, the Carlyle Parent Entities and Partner (collectively, the “Parties”) hereby
agree as follows:



     1. Non-Compete. The Partner agrees that so long as he is a Controlling Partner, and
for the period of three years thereafter, he will not engage in any business or activity which is
competitive with the “Carlyle Business” as limited by the final sentence of the definition thereof.
For purposes of this Section 1, the Partner shall be deemed “engaged” in a proscribed activity in
the event he engages in the activity directly or indirectly, whether through or by an entity in
which the person is a director (or the equivalent), executive officer, or equity holder, or
otherwise. The Partner shall not be deemed engaged in the proscribed activity if the entity engaged
in the activity is a publicly traded entity and the Partner’s only relationship with that entity is
an equity stake of five percent (5%) or less. Notwithstanding anything to the contrary herein, the
Partner may engage in (i) personal investment activities that do not compete with the activities of
any Managed Fund and for which the Partner receives no compensation in the form of Fees or Carry,
and (ii) charitable, community, literary and artistic activities, without restriction under this
Agreement.



     2. Nonsolicitation of Employees. The Partner agrees that, so long as he is a
Controlling Partner, and for the period of three years thereafter, Partner shall not solicit any of
the employees of any of the Carlyle Companies or any Carlyle Partner
to leave the Carlyle Companies or otherwise terminate or cease or materially modify their relationship with the Carlyle
Companies, or otherwise employ or engage such persons.




     3. Nonsolicitation of Clients. The Partner agrees that, so long as he is a Controlling
Partner, and for the period of three years thereafter, he will not solicit any investors in any
Managed Funds to invest in any funds or activities
that are competitive with the business of the “Carlyle Business” as limited by the final
sentence of the definition thereof.



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     4. Non-Disclosure.




     (a) As used in this Agreement, “Proprietary Information” means all proprietary information
of a business or technical nature that relates to any of the Carlyle Parent Entities,
Subsidiaries and Portfolio Companies and any other information that employees or partners of the
Carlyle Parent Entities are required to keep confidential. Notwithstanding the preceding
sentence, the term “Proprietary Information” does not include information that is or becomes
publicly available through no fault of Partner.




     (b) The Partner acknowledges that the Proprietary Information constitutes a protectible
business interest of the Carlyle Parent Entities, and covenants and agrees that, so long as he
is a Controlling Partner, and for three years thereafter, the Partner will not disclose any of
the Proprietary Information, except (i) as required in the conduct of his duties on behalf of
the Carlyle Companies or as otherwise permitted by the Carlyle Parent Entities, or (ii) as
required by virtue of a subpoena or order of a court or governmental agency or as otherwise
required by law, or (iii) to a court, mediator or arbitrator in connection with any dispute
between the Partner and any of the Carlyle Companies or Partner Holding Companies.



     5. Investment Activities. The Partner agrees that, so long as he is a Controlling
Partner, he will not pursue or otherwise seek to develop any investment opportunities under active
consideration by any of the Carlyle Companies, and, for the period of three years after he has
ceased to be a Controlling Partner, he will not pursue or otherwise seek to develop any investment
opportunities under active consideration by any of the Carlyle Companies at the time he ceased to
be a Controlling Partner.



     6. Breach of Covenants. The Partner acknowledges and agrees that (i) the restrictions
contained in this Agreement are reasonable and necessary to protect the legitimate interests of the
Carlyle Parent Entities, and (ii) any violation of the Partner’s covenants will result in
irreparable injury to the Carlyle Parent Entities, the exact amount of which will be difficult to
ascertain, and that the remedies at law for any such violation would not be reasonable or adequate
compensation to the Carlyle Parent Entities for such a violation. Accordingly, if he violates the
covenants contained herein, in addition to all remedies available under law or in equity, the
Partner agrees and specifically consents that the Carlyle Parent Entities shall be entitled to
specific performance and injunctive relief without the necessity of proving actual damages. Nothing
herein shall in any way release, compromise or waive any rights, remedies, claims or causes of
action the Carlyle Parent Entities may have against the Partner for violation of any law.



     7. Blue Pencil: Severability. If any term, provision, covenant or condition of this
Agreement is held by a court of competent jurisdiction to exceed the limitations permitted by
applicable law, as determined by such court in such action, then the provisions will be deemed
reformed to the maximum limitations permitted by applicable law and the Parties hereby expressly
acknowledge their desire that in such event such action be taken. Notwithstanding the foregoing,
the Parties further agree that if any term, provision, covenant or condition of this Agreement is
held



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by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of
the provisions shall remain in full force and effect and in no way shall be affected, impaired or
invalidated.



     8. Entire Agreement: Waivers: Modification. This Agreement is not intended to
supercede any existing agreement or understanding that is more protective of each Carlyle Parent
Entity than this Agreement and this Agreement is not intended to displace obligations imposed on
Partner by law. Subject to the foregoing, this Agreement represents the entire agreement and
understanding among the Parties regarding the subject matter hereof, and no extrinsic evidence
whatsoever may be introduced to vary the terms of this Agreement. No waiver of any of the
provisions of this Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed or construed as a further, continuing or subsequent waiver of any such provision or as a
waiver of an other provision of this Agreement. No failure to exercise and no delay in exercising
any right, remedy or power hereunder shall preclude an other or further exercise of any other
right, remedy or power provided herein or by law or in equity. This Agreement may not be altered,
amended, changed, terminated or modified in any respect except by a written instrument clearly
expressing the intent to so modify this Agreement, signed by all Parties.



     9. Governing Law: Jurisdiction: and Venue. This Agreement shall be governed by the
laws of the State of Delaware, without regard to its conflict of laws rules. The Parties consent to
the jurisdiction of the United States District Court for the District of Columbia to adjudicate any
disputes arising out of this Agreement. The Parties further agree that, to the extent permitted by
law, venue for all disputes arising under or related to this Agreement shall be in the District of
Columbia.



     10. Definitions. Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to such terms in the Annex attached hereto.



[Signature Pages Follow]









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ANNEX to Non-Competition Agreement



“Capital Stock” means (a) in the case of a corporation, corporate stock, (b) in the case of an
association or business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, (c) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or limited) and (d) any
other interest or participation that confers on the holder the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing entity.



“Carlyle Business” means all of the activities of the investment advisory and investment businesses
operated under the Carlyle name. For purposes of Sections 1 and 3, “Carlyle Business” shall
include only those activities that are a part of such business at the time such person ceases to be
a Controlling Partner.



“Carlyle Companies” means the Carlyle Parent Entities and their Subsidiaries.



“Carlyle Partners” means Carlyle Personnel owning equity interests in one or more Partner Holding
Companies.



“Carlyle Personnel” means individuals currently or formerly involved on a substantially full time
basis in conducting the Carlyle Business or that otherwise provide or have provided significant
personal services to the Carlyle Companies.



“Carry” means all carried interests earned in connection with the Carlyle Business.



“Controlling Partner” means (i) as of the date hereof, the Founders, and (ii) as of any future date
on which the Founders cease to (x) own a majority of the equity interests in each of the Partner
Holding Companies, or (y) control each of the Partner Holding Companies other than International
Management Fee Entity, Carlyle Personnel designated by the Partner Holding Companies who
collectively own a majority of the equity of each of the Partner Holding Companies, who control
each of the Partner Holding Companies other than International Management Fee Entity, who are
involved on a substantially full-time basis in conducting the Carlyle Business or are otherwise
then currently providing significant personal services to the Carlyle Companies, and who have
provided a non-compete agreement. For purposes of the foregoing, to have a majority of the equity
means to hold interests that represent more than 50% of the rights to profits, distributions and
capital (exclusive of rights with respect to co-investments). “control” means the right (whether by
control of a general partnership interest or of sufficient votes to elect a majority of the board
of directors, by contract or otherwise, or by other direct or indirect means) to direct and control
the management and affairs of the entity in question.



“Fees” means all fee income, however designated (including, without limitation, management,
investment advisory and other fees) earned in connection with the Carlyle Business.



“Founders” means William E. Conway, Jr., Daniel A. D’Aniello and David M. Rubenstein.




“Managed Fund” means the Carlyle Parent Entities, the Subsidiaries, or any investment fund
managed by any of the Carlyle Parent Entities or any of their Subsidiaries (the “Managed Funds”;
for avoidance of doubt, “Managed Funds” includes all co-investment funds).


“Partner Holding Companies” means TCG Holdings, L.L.C., a Delaware limited liability company, TCG
Holdings II, L.P., a Delaware limited partnership, TCG Holdings Cayman, L.P., a Cayman Island
exempted limited partnership,
and TCG Holdings Cayman II, L.P., a Cayman Island exempted limited partnership (together with each
of their successors).



“Subsidiary” means (a) any corporation, association or other business entity of which more than 50%
of the Capital Stock entitled to vote in the election of directors, managers or trustees thereof is
at the time owned or controlled,


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directly or indirectly, by a Carlyle Parent Entity or one or more
of the other Subsidiaries of a Carlyle Parent Entity (or a combination thereof) and (b) any
partnership or limited liability company a general partner or a managing general partner or a
managing member of which is a Carlyle Parent Entity or a Subsidiary of a Carlyle Parent Entity; but
does not include the “portfolio companies” owned by Managed Funds (“Portfolio Companies”). For
avoidance of doubt, “Subsidiaries” includes Managed Funds.




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     IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective dates set forth
below.



	 	 	 	 	 	 	 

	 	 	TC GROUP, L.L.C., a Delaware limited liability company
	 
	 	 	 	 	 	 
	 	 	By: TCG Holdings, L.L.C., its managing member
	 
	 	 	 	 	 	 
	 

	 	          By:  /s/ Daniel A. D’Aniello	 	 
	 

	 	 
	 	 
	 

	 	          Name: Daniel A. D’Aniello	 	 
	 

	 	          Title: Managing Director	 	 
	 
	 	 	 	 	 	 
	 

	 	          Dated: 2/1/2001	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	TC GROUP INVESTMENT HOLDINGS, L.P., a Delaware limited
	 	 	partnership
	 
	 	 	 	 	 	 
	 	 	By: TCG Holdings II, L.P., its general partner
	 
	 	 	 	 	 	 
	 

	 	          By: DBD Investors V, L.L.C., its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	                    By: /s/ Daniel A. D’Aniello	 	 
	 

	 	 
	 	 
	 

	 	                    Name:
	 	Daniel A. D’Aniello	 	 
	 

	 	                    Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	TC GROUP CAYMAN, L.P., a Cayman Islands exempted
	 	 	limited partnership
	 
	 	 	 	 	 	 
	 	 	By: TCG Holdings Cayman, L.P., its general partner
	 
	 	 	 	 	 	 
	 

	 	          By:
Carlyle Offshore Partners II, Ltd., its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	                    By: /s/ Daniel A. D’Aniello	 	 
	 

	 	 
	 	 
	 

	 	                    Name:
	 	Daniel A. D’Aniello	 	 
	 

	 	                    Title:
	 	Director	 	 






[SIGNATURE PAGE — NONCOMPETE (Rubenstein)]






 









 








	 	 	 	 	 	 	 

	 	 	TC GROUP CAYMAN INVESTMENT HOLDINGS, L.P., a Cayman
	 	 	Islands exempted limited partnership
	 
	 	 	 	 	 	 
	 	 	By: TCG Holdings Cayman II, L.P., its general partner
	 
	 	 	 	 	 	 
	 

	 	          By: DBD Cayman, Ltd., its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	                    By: /s/ Daniel A. D’Aniello	 	 
	 

	 	 
	 	 
	 

	 	                    Name:
	 	Daniel A. D’Aniello	 	 
	 

	 	                    Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	 	 	PARTNER:
	 
	 	 	 	 	 	 
	 	 	          /s/ David M. Rubenstein
	 	 	 	 	 
	 	 	David M. Rubenstein
	 
	 	 	 	 	 	 
	 

	 	Dated: 2/1/2001	 	 
	 

	 	 	 	 	 	 





[SIGNATURE PAGE — NONCOMPETE (Rubenstein)]