AGAINST ANY PROCEEDING IN CONNECTION WITH (I) ANY
CONTEMPLATED TRANSACTION OR (II) ANY ALLEGED FACT, ACTION, OR OTHER EVENT,
INVOLVING THE DYNA GROUP COMPANIES, EACH OF THE PARTIES WILL USE ITS BEST
EFFORTS TO COOPERATE WITH IT AND ITS COUNSEL IN THE CONTEST OR DEFENSE, MAKE
AVAILABLE HIS OR ITS PERSONNEL, AND PROVIDE SUCH TESTIMONY AND ACCESS TO HIS OR
ITS BOOKS AND RECORDS AS SHALL BE NECESSARY IN CONNECTION WITH THE CONTEST OR
DEFENSE, ALL AT THE SOLE COST AND EXPENSE OF THE CONTESTING OR DEFENDING PARTY.
SEC. 11.
NON-COMPETITION CLAUSE
11.1
NON-COMPETE COVENANT
11.1.1.
FOR A PERIOD OF FIVE (5) YEARS AFTER THE CLOSING
DATE, THE RESPECTIVE SELLERS AND MR. MERTENS SHALL NOT, EITHER DIRECTLY OR
INDIRECTLY, ENGAGE IN THE GEOGRAPHICAL MARKETS IN ANY COMPETITION TO THE
BUSINESS AS PRESENTLY CONDUCTED (HEREIN REFERRED TO AS "COMPETITIVE
ACTIVITIES"), OR DIRECTLY OR INDIRECTLY MANAGE, ASSIST OR ACQUIRE ANY INTEREST
(EQUITY OR VOTES) IN ANY COMPANIES CONDUCTING ANY COMPETITIVE ACTIVITIES (EXCEPT
THE ACQUISITION OF SHARES OF THE DMC COMMON STOCK AS OUTLINED ABOVE AND EXCEPT
ANY ACTIVITY THE SELLERS OR ANY OF THEM WILL CONDUCT FOR ANY OF THE DYNA GROUP
COMPANY IN ACCORD WITH THE PURCHASER). "GEOGRAPHICAL MARKETS" HEREIN SHALL MEAN
THE MARKETS IN WHICH DYNA GROUP COMPANIES ARE CURRENTLY ACTIVE IN THE BUSINESS
OR HAVE BEEN THEMSELVES DIRECTLY (INCLUDING VIA DIRECT PARTICIPATIONS IN
CONSORTIUMS OR OTHER CO-OPERATIONS) ACTIVE IN THE BUSINESS IN THE LAST FIVE (5)
YEARS BEFORE THE CLOSING DATE.
THE OBLIGATIONS OF THIS SECTION 11.1.1 SHALL
TERMINATE AS TO MR. MERTENS (I) IN RESPECT TO CERTAIN REGIONS, UPON THE
TERMINATION OF AN AGREEMENT DISCLOSED IN ANNEX 11.1.1-1 RELATING TO SUCH REGION,
IN WHICH ANKO INDUSTRY SERVICE GMBH WAS OBLIGED TO PROVIDE SERVICES UNDER THE
RESPECTIVE AGREEMENT TERMINATED, AND (II) IN RESPECT TO CERTAIN CLIENTS, UPON
THE FULL OR PARTLY TERMINATION OF THE PROVISION AGREEMENT DISCLOSED
48
IN ANNEX 11.1.1-2 RELATING TO SUCH CLIENTS, FOR WHICH THE PAYMENT OF PROVISIONS
ACCORDING THAT PROVISION AGREEMENT IS TERMINATED.
11.1.2.
THE SELLERS ACKNOWLEDGE AND AGREE THAT THE VALUE TO
THE PURCHASER OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT WOULD BE
SUBSTANTIALLY AND MATERIALLY DIMINISHED IF ANY OF THE SELLERS, DIRECTLY OR
INDIRECTLY, WERE TO BREACH ANY OF THE PROVISIONS OF THIS SECTION 11.1, AND THE
SELLERS HAVE THEREFORE AGREED TO THE PROVISIONS OF THIS SECTION 11.1 AS A
MATERIAL INDUCEMENT TO THE PURCHASER TO ENTER INTO THIS AGREEMENT. THE SELLERS
SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE PROVISIONS OF THIS SECTION 11.1 ARE
COMMERCIALLY REASONABLE RESTRAINTS IN ACCORDANCE WITH COMMON MARKET PRACTICE,
WHICH IN LIGHT OF THE INVESTMENT, EFFORT AND RISK TO ACQUIRE HEREUNDER AND
THEREAFTER OPERATE THE BUSINESS OF THE DYNA GROUP COMPANIES ARE REASONABLY
NECESSARY TO PROTECT THE VALUE OF THE DYNA GROUP COMPANIES AND THEIR BUSINESS.
THE SELLERS ACKNOWLEDGE AND AGREE THAT THE PURCHASER COULD BE IRREPARABLY
DAMAGED BY A BREACH OF THIS SECTION 11.1 AND WOULD NOT BE ADEQUATELY COMPENSATED
BY MONETARY DAMAGES FOR ANY SUCH BREACH AND THUS SHALL ALSO BE ENTITLED TO
INJUNCTIVE RELIEF.
11.2