TRANSACTION.
FOR PURPOSES OF THIS PARAGRAPH, "MAJOR TRANSACTION" SHALL MEAN THE
SALE OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF THE CORPORATION, OR A MERGER,
CONSOLIDATION, SALE OF STOCK OR SIMILAR TRANSACTION OR SERIES OF RELATED
TRANSACTIONS WHEREBY A THIRD PARTY (INCLUDING A "GROUP" AS DEFINED IN
SECTION 13(D)(3) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED) ACQUIRES
BENEFICIAL OWNERSHIP, DIRECTLY OR INDIRECTLY, OF SECURITIES OF THE CORPORATION
REPRESENTING OVER FIFTY PERCENT (50%) OF THE COMBINED VOTING POWER OF THE
CORPORATION; PROVIDED, HOWEVER, THAT A MAJOR TRANSACTION SHALL NOT IN ANY EVENT
INCLUDE A DIRECT OR INDIRECT PUBLIC OFFERING OF SECURITIES OF THE CORPORATION,
ITS PARENT OR OTHER AFFILIATES.
10.
NON-COMPETITION.
HERBES AGREES THAT DURING (I) THE TERM; (II) THE
ONE (1) YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION OF THIS
AGREEMENT BY HERBES PURSUANT TO PARAGRAPH 7(C) (VOLUNTARY TERMINATION); AND
(III) THE ONE (1) YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION BY THE
CORPORATION PURSUANT TO PARAGRAPH 8 (TERMINATION FOR CAUSE), HE SHALL NOT,
DIRECTLY OR INDIRECTLY, BE EMPLOYED OR OTHERWISE ENGAGED TO PROVIDE SERVICES TO
ANY FOOD MANUFACTURER OPERATING IN THE UNITED STATES OF AMERICA WHICH IS
DIRECTLY COMPETITIVE WITH ANY SIGNIFICANT ACTIVITIES CONDUCTED BY THE
CORPORATION OR ITS SUBSIDIARIES OR OTHER AFFILIATES WHOSE PRINCIPAL BUSINESS
OPERATIONS ARE IN THE UNITED STATES OF AMERICA.
HERBES AGREES THAT HIS
ENTITLEMENT TO THE BENEFITS SET FORTH IN PARAGRAPH 7(A) ABOVE IS CONTINGENT UPON
HIS COMPLIANCE WITH THE REQUIREMENTS OF THIS PARAGRAPH.
7
11.
CONFIDENTIALITY OF INFORMATION. HERBES RECOGNIZES AND ACKNOWLEDGES
THAT DURING HIS EMPLOYMENT BY THE CORPORATION, HE WILL ACQUIRE CERTAIN
PROPRIETARY AND CONFIDENTIAL INFORMATION RELATING TO THE BUSINESS OF THE
CORPORATION AND ITS SUBSIDIARIES OR OTHER AFFILIATES (THE "INFORMATION"). HERBES
AGREES THAT DURING THE TERM OF HIS EMPLOYMENT UNDER THIS AGREEMENT AND
THEREAFTER, FOR ANY REASON WHATSOEVER, HE SHALL NOT, DIRECTLY OR INDIRECTLY,
EXCEPT IN THE PROPER COURSE OF EXERCISING HIS DUTIES UNDER THIS AGREEMENT, USE
FOR HIS OR ANOTHER THIRD PARTY'S BENEFIT, DISCLOSE, FURNISH, OR MAKE AVAILABLE
TO ANY PERSON, ASSOCIATION OR ENTITY, THE INFORMATION. IN THE EVENT OF A BREACH
OR THREATENED BREACH BY HERBES OF THE PROVISIONS OF THIS PARAGRAPH, THE
CORPORATION SHALL BE ENTITLED TO AN INJUNCTION RESTRAINING HIM FROM VIOLATING
THE PROVISIONS OF THIS PARAGRAPH. NOTWITHSTANDING THE FOREGOING, NOTHING
CONTAINED HEREIN SHALL BE CONSTRUED AS PROHIBITING THE CORPORATION FROM PURSUING
ANY OTHER REMEDIES AVAILABLE TO IT FOR SUCH BREACH OR THREATENED BREACH. FOR
PURPOSES OF THIS PARAGRAPH, "INFORMATION" INCLUDES ANY AND ALL VERBAL OR WRITTEN
MATERIALS, DOCUMENTS, INFORMATION, PRODUCTS, RECIPES, FORMULAS, PROCESSES,
TECHNOLOGIES, PROGRAMS, TRADE SECRETS, CUSTOMER LISTS OR OTHER DATA RELATING TO
THE BUSINESS, AND OPERATIONS OF THE CORPORATION AND/OR ITS SUBSIDIARIES OR OTHER
AFFILIATES.
12.
SUPERSEDING AGREEMENT. THIS AGREEMENT CONSTITUTES THE ENTIRE
AGREEMENT BETWEEN THE PARTIES AND CONTAINS ALL THE AGREEMENTS BETWEEN THEM WITH
RESPECT TO THE SUBJECT MATTER HEREOF. IT ALSO SUPERSEDES ANY AND ALL OTHER
AGREEMENTS OR CONTRACTS, EITHER ORAL OR WRITTEN, BETWEEN THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF.
13.
AGREEMENT AMENDMENTS.