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.
LERNER AGREES THAT DURING
(I) THE TERM; (II) THE ONE (1) YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF
TERMINATION OF THIS AGREEMENT BY LERNER 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.
LERNER AGREES THAT HIS
ENTITLEMENT TO THE BENEFITS SET FORTH IN SECTION 7(A) ABOVE IS CONTINGENT UPON
HIS COMPLIANCE WITH THE REQUIREMENTS OF THIS PARAGRAPH.
11.
CONFIDENTIALITY OF INFORMATION. LERNER
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"). LERNER 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
7
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 LERNER 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.
EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED, THE TERMS AND CONDITIONS OF THIS AGREEMENT