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.
[Remainder of Page Intentionally Left Blank]
5
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]