1011-00005 · Meridian Consumer Brands LLC · Transaction Documents/Exhibits

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NON-COMPETITION AND NON-SOLICITATION AGREEMENT

Draft — Exhibit B to the Asset Purchase Agreement

Prepared by Calderwood & Harkness LLP, 599 Lexington Avenue, 36th Floor, New York, NY 10022 Matter No. 1011-00005

NON-COMPETITION AND NON-SOLICITATION AGREEMENT

This NON-COMPETITION AND NON-SOLICITATION AGREEMENT (this "Agreement") is made and entered into as of __, 2022 (the "Effective Date"), by and between:

MALCOLM GREER, an individual residing in the State of Ohio (the "Restricted Party");

and

MERIDIAN CONSUMER BRANDS LLC, a Delaware limited liability company, with its principal office located at 440 Park Avenue South, 18th Floor, New York, NY 10016 (the "Buyer").

The Restricted Party and the Buyer are each referred to herein as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, the Buyer and Briarwood Home Essentials, Inc., an Ohio corporation (the "Seller"), have entered into that certain Asset Purchase Agreement, dated as of __, 2022 (the "Purchase Agreement"), pursuant to which, among other things, the Buyer has agreed to acquire from the Seller certain assets constituting the consumer product line of the Seller, including without limitation the "CleanLeaf" branded home cleaning product line and the "PureHaven" branded personal care product line, together with all related inventory, accounts receivable, equipment, intellectual property, customer contracts, and other assets more particularly described in the Purchase Agreement (collectively, the "Acquired Assets"), for a purchase price of Ninety-Five Million Dollars ($95,000,000) (the "Purchase Price"), subject to the terms and conditions set forth in the Purchase Agreement. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Purchase Agreement;

WHEREAS, Malcolm Greer is the President and sole shareholder of Briarwood Home Essentials, Inc. Greer founded Briarwood Home Essentials, Inc. in 2004 and has served continuously as its chief executive officer and principal decision-maker since its inception. By virtue of his ownership and management of the Seller, Greer possesses unique and extensive knowledge of the Acquired Assets and the Business (as defined below), including without limitation trade secrets, proprietary product formulations, customer relationships, supplier relationships, pricing strategies, marketing plans, distribution channels, product development roadmaps, manufacturing processes, and other confidential and competitively sensitive information relating to the CleanLeaf and PureHaven product lines. In addition, approximately one hundred eighty-six (186) employees of the Seller are expected to transfer to the Buyer in connection with the consummation of the transactions contemplated by the Purchase Agreement, and Greer has extensive personal and professional relationships with such employees developed over a period of nearly two decades;

WHEREAS, the execution and delivery of this Agreement by Greer is a condition precedent to the Buyer's obligation to consummate the transactions contemplated by the Purchase Agreement. A material portion of the Purchase Price payable under the Purchase Agreement constitutes valuable and adequate consideration for Greer's covenants and obligations hereunder, and Greer hereby acknowledges the adequacy and sufficiency of such consideration. Greer further acknowledges that the Buyer would not enter into the Purchase Agreement or consummate the transactions contemplated thereby absent Greer's execution and delivery of this Agreement;

WHEREAS, Greer acknowledges and agrees that the restrictive covenants contained in this Agreement are reasonable and necessary to protect the legitimate business interests of the Buyer in the Acquired Assets, including without limitation the goodwill of the Business, customer relationships, employee relationships, trade secrets, and other confidential and proprietary information being acquired by the Buyer. Greer further acknowledges that he has had a full and adequate opportunity to consult with independent legal counsel of his own choosing regarding the terms, conditions, and enforceability of this Agreement, and enters into this Agreement voluntarily and with full knowledge of its terms;

NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and agreements set forth herein, the consummation of the transactions contemplated by the Purchase Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each Party, the Parties agree as follows:

ARTICLE I — DEFINITIONS

Section 1.1 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:

(a) "Business" means the development, manufacture, formulation, marketing, advertising, promotion, distribution, and sale of consumer home cleaning products and consumer personal care products, including without limitation products of the type currently developed, manufactured, formulated, marketed, advertised, promoted, distributed, or sold, or that were developed, manufactured, formulated, marketed, advertised, promoted, distributed, or sold during the twelve (12)-month period prior to the Closing Date, under or in connection with the CleanLeaf and PureHaven brands or any successor or derivative brands thereof. For the avoidance of doubt, the term "Business" expressly excludes commercial janitorial services and the operations of the Seller's Commercial Janitorial Services Division (the "Retained Business"), which division is not part of the Acquired Assets and is being retained by the Seller pursuant to the terms of the Purchase Agreement.

(b) "Closing Date" means the date of the closing of the transactions contemplated by the Purchase Agreement, as defined in and determined in accordance with the Purchase Agreement.

(c) "Competing Business" means (i) any Person that is engaged in, or (ii) any division, unit, segment, subsidiary, or affiliate of any Person that is engaged in, the Business in the Territory; provided, however, that ownership of not more than two percent (2%) of the outstanding equity securities of any Person whose securities are listed on a national securities exchange or traded on a nationally recognized over-the-counter market shall not, by itself, constitute a Competing Business for purposes of this Agreement.

(d) "Confidential Information" means all non-public, proprietary, or confidential information and materials relating to the Business or the Acquired Assets, whether in written, oral, electronic, visual, or other form, and whether or not marked or designated as "confidential," including without limitation: (i) trade secrets; (ii) proprietary product formulations, compositions, recipes, and specifications (including, without limitation, all formulations for products sold under the CleanLeaf and PureHaven brands); (iii) customer lists, customer contact information, customer purchasing histories, and customer preferences; (iv) supplier and vendor information, including pricing, terms, and sourcing arrangements; (v) pricing data, pricing strategies, discount schedules, and margin information; (vi) marketing strategies, marketing plans, advertising campaigns, and brand positioning; (vii) product development plans, research and development initiatives, and product pipeline information; (viii) financial information, budgets, forecasts, and projections; (ix) technical and manufacturing know-how, processes, methods, and techniques; (x) employee information, compensation data, and organizational structures; (xi) distribution strategies, logistics arrangements, and supply chain information; and (xii) any other information that derives independent economic value from not being generally known to, and not being readily ascertainable by proper means by, other Persons who can obtain economic value from its disclosure or use. Notwithstanding the foregoing, "Confidential Information" shall not include information that: (A) is or becomes generally available to the public other than as a result of a disclosure by the Restricted Party or any of his representatives in violation of this Agreement; (B) was available to the Restricted Party on a non-confidential basis from a source other than the Business, the Seller, or the Buyer, provided that such source is not known by the Restricted Party to be bound by a confidentiality obligation to the Buyer, the Seller, or any of their respective affiliates with respect to such information; (C) is independently developed by the Restricted Party without the use of, or reference to, any Confidential Information; or (D) is required to be disclosed by applicable law, regulation, governmental order, or legal process, subject to compliance with Section 5.2(d) of this Agreement.

(e) "Customer" means any Person who was a customer of the Business, or who purchased products from or through the Business, at any time during the twenty-four (24)-month period immediately preceding the Closing Date, including without limitation the twenty-three (23) customers whose contracts are being assigned to the Buyer under the Purchase Agreement and listed on Schedule C hereto.

(f) "Person" means any individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization, governmental authority or agency, or any other entity of any kind or nature.

(g) "Restricted Period" means the period commencing on the Closing Date and ending on the fourth (4th) anniversary of the Closing Date; provided, however, that the Restricted Period shall be subject to extension pursuant to Section 7.3 of this Agreement in the event of any violation of the restrictive covenants set forth herein.

(h) "Territory" means (i) the United States of America (including all fifty (50) states, the District of Columbia, and all territories and possessions thereof) and (ii) Canada (including all provinces and territories thereof). The Parties acknowledge that the Territory reflects the geographic areas in which the Business has been conducted and products of the Business have been manufactured, distributed, marketed, and sold during the twenty-four (24)-month period prior to the Closing Date, and that the Territory is a reasonable geographic limitation in light of the scope and nature of the Business.

(i) "Transferred Employees" means the approximately one hundred eighty-six (186) employees of the Seller who receive and accept offers of employment from the Buyer (or an affiliate of the Buyer) in connection with the consummation of the transactions contemplated by the Purchase Agreement, as further described in the Purchase Agreement and the Schedule of Transferred Employees attached thereto as Schedule B hereto.

Section 1.2 Interpretation. Unless the context otherwise requires, words importing the singular include the plural and vice versa, words importing gender include all genders, and references to "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation." References to any agreement, document, or instrument shall mean such agreement, document, or instrument as amended, supplemented, or modified from time to time in accordance with its terms.

ARTICLE II — NON-COMPETITION

Section 2.1 Non-Competition Covenant. During the Restricted Period, the Restricted Party shall not, directly or indirectly, whether individually or in concert with any other Person, and whether as a principal, agent, partner, member, manager, officer, director, employee, consultant, advisor, independent contractor, investor, lender, guarantor, or in any other capacity whatsoever:

(a) engage in, own, manage, operate, control, finance, or participate in the ownership, management, operation, control, or financing of any Competing Business in the Territory;

(b) assist, advise, or provide services (whether as an employee, consultant, advisor, or otherwise) to any Person in connection with, or for the benefit of, any Competing Business in the Territory, including without limitation providing strategic, managerial, operational, technical, scientific, marketing, distribution, or financial services;

(c) lend his name, reputation, likeness, endorsement, or personal goodwill for use by, or in connection with, any Competing Business or any products or services offered by a Competing Business; or

(d) plan, prepare, or take any steps in furtherance of any of the activities described in clauses (a), (b), or (c) above.

Section 2.2 Scope Limitation — Consumer Products Only. The Parties acknowledge and agree that the non-competition covenant set forth in Section 2.1 applies solely to consumer home cleaning products and consumer personal care products within the scope of the defined Business and does not restrict the Restricted Party from engaging in, owning, managing, operating, or otherwise participating in any business that is outside the scope of the defined Business. Without limiting the generality of the foregoing, the non-competition covenant does not restrict the Restricted Party from engaging in, owning, managing, operating, or otherwise participating in commercial janitorial services or any other activities constituting the Retained Business, and the Restricted Party expressly retains the right to continue operating, and to participate in the operation of, the Commercial Janitorial Services Division retained by Briarwood Home Essentials, Inc. pursuant to the Purchase Agreement without limitation or restriction of any kind under this Agreement.

Section 2.3 Permitted Activities and Exceptions. Notwithstanding Section 2.1, the following activities shall not constitute a violation of the non-competition covenant:

(a) Passive Investment. The Restricted Party's ownership of not more than two percent (2%) of the outstanding equity securities of any Person whose securities are listed on a national securities exchange or traded on a nationally recognized over-the-counter market, even if such Person is engaged in a Competing Business, so long as the Restricted Party does not otherwise participate in the management, operation, or control of such Person and does not serve as a director, officer, employee, consultant, or advisor thereof.

(b) Retained Business. The Restricted Party's continued involvement with the Commercial Janitorial Services Division of Briarwood Home Essentials, Inc. and any other business of the Seller that does not constitute the Business, provided that such involvement does not serve as a vehicle for, or facilitate, the Restricted Party's engagement in or participation in a Competing Business.

(c) Transition Services. The Restricted Party's provision of transition services or cooperation to the Buyer pursuant to the Transition Services Agreement, if any, executed between the Parties or their respective affiliates in connection with the transactions contemplated by the Purchase Agreement, or as otherwise requested by the Buyer in writing.

ARTICLE III — NON-SOLICITATION OF EMPLOYEES

Section 3.1 Employee Non-Solicitation Covenant. During the Restricted Period, the Restricted Party shall not, directly or indirectly, whether individually or in concert with any other Person, and whether on his own behalf or on behalf of any other Person:

(a) solicit, recruit, hire, or engage, or attempt to solicit, recruit, hire, or engage, any Transferred Employee for employment or engagement as an independent contractor, consultant, or in any other capacity;

(b) induce, encourage, or attempt to induce or encourage any Transferred Employee to terminate, resign from, or otherwise cease his or her employment with the Buyer or any of the Buyer's affiliates, subsidiaries, or successors;

(c) otherwise interfere with, or attempt to interfere with, the employment relationship between the Buyer (or any of its affiliates, subsidiaries, or successors) and any Transferred Employee; or

(d) assist, facilitate, or encourage any other Person in taking any of the actions described in clauses (a), (b), or (c) above with respect to any Transferred Employee.

The Parties acknowledge that the non-solicitation covenant set forth in this Section 3.1 covers the approximately one hundred eighty-six (186) Transferred Employees identified on the Schedule of Transferred Employees, and that this restriction is reasonable and necessary to protect the Buyer's legitimate business interest in maintaining the stability, continuity, and productivity of its workforce following the closing of the transactions contemplated by the Purchase Agreement.

Section 3.2 Exceptions to Employee Non-Solicitation. Notwithstanding Section 3.1, the following shall not constitute a violation of the employee non-solicitation covenant:

(a) General Solicitations. The placement of general advertisements or postings for employment opportunities through newspapers, trade publications, Internet job boards, social media platforms (including Westmark Health IT general postings), or the engagement of recruiting or search firms conducting general searches, in each case that are not specifically directed at or targeted toward any Transferred Employee, even if a Transferred Employee responds to or applies for a position in response to such general solicitation.

(b) Previously Terminated Employees. The solicitation or hiring of any individual who was a Transferred Employee but whose employment with the Buyer (or any of its affiliates) was terminated by the Buyer (or such affiliate) without the involvement, inducement, encouragement, or assistance of the Restricted Party, and who has not been employed by the Buyer (or any of its affiliates) for a period of at least six (6) months prior to the date of such solicitation or hiring by the Restricted Party.

(c) Unsolicited Contacts. The hiring of any individual who was a Transferred Employee and who contacts the Restricted Party on his or her own initiative without any direct or indirect solicitation, recruitment, inducement, or encouragement by the Restricted Party, provided that such individual responds to a general solicitation of the type described in clause (a) above and is not specifically targeted by the Restricted Party.

ARTICLE IV — NON-SOLICITATION OF CUSTOMERS

Section 4.1 Customer Non-Solicitation Covenant. During the Restricted Period, the Restricted Party shall not, directly or indirectly, whether individually or in concert with any other Person, and whether on his own behalf or on behalf of any other Person:

(a) solicit, divert, or take away, or attempt to solicit, divert, or take away, any Customer, or any prospective customer of the Business, for the purpose of providing products or services that are competitive with the Business or that are of the type offered by the Business;

(b) induce, encourage, or attempt to induce or encourage any Customer to reduce, terminate, cancel, fail to renew, or otherwise adversely modify its business relationship with the Buyer (or any of its affiliates, subsidiaries, or successors);

(c) otherwise interfere with, or attempt to interfere with, the business relationship between the Buyer (or any of its affiliates, subsidiaries, or successors) and any Customer; or

(d) assist, facilitate, or encourage any other Person in taking any of the actions described in clauses (a), (b), or (c) above with respect to any Customer.

The Parties acknowledge that the customer non-solicitation covenant set forth in this Section 4.1 encompasses the twenty-three (23) customer contracts being assigned to the Buyer under the Purchase Agreement, as identified on Schedule C hereto, as well as all other Customers of the Business during the applicable twenty-four (24)-month look-back period preceding the Closing Date. The Parties further acknowledge that the Restricted Party's personal relationships with such Customers and knowledge of their purchasing patterns, preferences, and contractual terms constitute a valuable component of the goodwill being acquired by the Buyer, and that this restriction is reasonable and necessary to protect the Buyer's legitimate business interests.

Section 4.2 Non-Interference with Suppliers and Vendors. During the Restricted Period, the Restricted Party shall not, directly or indirectly, whether individually or in concert with any other Person, and whether on his own behalf or on behalf of any other Person:

(a) solicit, induce, or encourage, or attempt to solicit, induce, or encourage, any material supplier, vendor, service provider, or other business partner of the Business to terminate, cancel, fail to renew, or adversely modify its relationship, agreement, or arrangement with the Buyer (or any of its affiliates, subsidiaries, or successors);

(b) otherwise interfere with, or attempt to interfere with, the business relationship between the Buyer (or any of its affiliates, subsidiaries, or successors) and any such supplier, vendor, service provider, or other business partner; or

(c) take any action intended to, or that could reasonably be expected to, disrupt or impair the supply chain, manufacturing operations, or distribution capabilities of the Business.

ARTICLE V — CONFIDENTIALITY

Section 5.1 Confidentiality Obligations. The Restricted Party shall not, during or after the Restricted Period, directly or indirectly, use for his own benefit, or disclose, reveal, communicate, publish, or make available to any Person, any Confidential Information, except as expressly permitted by this Agreement or as authorized in writing by the Buyer. The Restricted Party acknowledges that the Confidential Information constitutes valuable, special, and unique assets of the Business and the Acquired Assets, the unauthorized use or disclosure of which would cause substantial and irreparable harm to the Buyer. With respect to Confidential Information that constitutes a "trade secret" under the Ohio Uniform Trade Secrets Act, the Defend Trade Secrets Act of 2016 (18 U.S.C. § 1836 et seq.), or any other applicable law (including without limitation all proprietary product formulations for the CleanLeaf and PureHaven product lines), the confidentiality obligations of this Section 5.1 shall continue in perpetuity for so long as such information retains its status as a trade secret. With respect to all other Confidential Information, the confidentiality obligations of this Section 5.1 shall continue for a period co-terminous with the Restricted Period, unless such information constitutes a trade secret under applicable law, in which case the perpetual obligation shall apply.

Section 5.2 Exceptions. The obligations of the Restricted Party under Section 5.1 shall not apply to Confidential Information that:

(a) is or becomes generally available to the public or within the relevant industry other than as a result of a disclosure by the Restricted Party or any of his representatives, agents, or affiliates in violation of this Agreement;

(b) was or becomes available to the Restricted Party on a non-confidential basis from a source other than the Business, the Seller, or the Buyer, provided that such source is not known by the Restricted Party to be bound by a confidentiality agreement with, or a legal, fiduciary, or other obligation of confidentiality to, the Buyer, the Seller, or any of their respective affiliates with respect to such information;

(c) is independently developed by the Restricted Party without the use of, reference to, or reliance upon any Confidential Information, as demonstrated by the Restricted Party's contemporaneous written records; or

(d) is required to be disclosed by applicable law, regulation, governmental order, subpoena, civil investigative demand, or other legal process; provided, however, that the Restricted Party shall (i) provide the Buyer with prompt written notice of such requirement prior to any such disclosure (to the extent legally permissible), (ii) cooperate with the Buyer, at the Buyer's expense, in seeking a protective order or other appropriate remedy to prevent or limit such disclosure, and (iii) disclose only that portion of the Confidential Information that is legally required to be disclosed.

Section 5.3 Defend Trade Secrets Act Notice. Pursuant to the Defend Trade Secrets Act of 2016 (18 U.S.C. § 1833(b)), the Restricted Party is hereby notified that an individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law, or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.

Section 5.4 Return of Materials. Upon the Closing Date, or at any time thereafter upon the Buyer's written request, the Restricted Party shall promptly return to the Buyer (or, at the Buyer's written direction, destroy) all documents, files, records, materials, notes, memoranda, reports, analyses, compilations, data, correspondence, electronic files, digital media, and all other tangible and intangible items in any form or medium that contain, reflect, or are derived from any Confidential Information, including all copies, reproductions, summaries, excerpts, and derivatives thereof in the Restricted Party's possession, custody, or control. The Restricted Party shall certify in writing to the Buyer his compliance with this Section 5.4 within ten (10) business days following the Closing Date or the Buyer's request, as applicable. Notwithstanding the foregoing, the Restricted Party may retain one (1) copy of this Agreement and any documents required to be retained pursuant to applicable law or regulation, subject to the continuing confidentiality obligations of this Article V.

ARTICLE VI — INTELLECTUAL PROPERTY NON-USE

Section 6.1 No Use of Acquired intellectual Property. The Restricted Party shall not, at any time during or after the Restricted Period, directly or indirectly:

(a) use, adopt, display, or exploit any trademark, service mark, trade name, brand name, logo, trade dress, slogan, domain name, social media handle, or other identifier that is identical to, or confusingly similar to, "CleanLeaf," "PureHaven," or any other trademark, service mark, trade name, or other intellectual property included in the Acquired Assets;

(b) apply to register, or cause or permit any other Person to apply to register, any trademark, service mark, trade name, domain name, or other identifier that is identical to, or confusingly similar to, any intellectual property included in the Acquired Assets, in any jurisdiction;

(c) challenge, contest, or assist any other Person in challenging or contesting the validity, enforceability, or ownership of any intellectual property included in the Acquired Assets or transferred to the Buyer pursuant to the Purchase Agreement or the intellectual Property Assignment Agreement; or

(d) represent, suggest, or imply to any Person that the Restricted Party retains any right, title, interest, license, or other authorization in or to any intellectual property included in the Acquired Assets.

The obligations of the Restricted Party under this Section 6.1 are in addition to, and shall not limit, the terms and conditions of the intellectual Property Assignment Agreement executed concurrently herewith at closing, and all other agreements regarding intellectual property executed in connection with the transactions contemplated by the Purchase Agreement.

ARTICLE VII — ENFORCEMENT AND REMEDIES

Section 7.1 Acknowledgment of Irreparable Harm. The Restricted Party acknowledges and agrees that the covenants and obligations contained in Articles II, III, IV, V, and VI of this Agreement are of a special, unique, and extraordinary character, and that a breach or threatened breach of any such covenant or obligation would cause the Buyer irreparable injury and damage for which monetary damages alone would be an inadequate and insufficient remedy. The Restricted Party further acknowledges that it would be impossible to measure in money the damages that would be suffered by the Buyer in the event of a breach or threatened breach of any such covenant or obligation.

Section 7.2 Injunctive Relief. In the event of a breach or threatened breach of any covenant or obligation contained in this Agreement, the Buyer shall be entitled to seek and obtain, from any court of competent jurisdiction, temporary restraining orders, preliminary injunctions, permanent injunctions, specific performance, and any other equitable relief as may be necessary or appropriate to restrain, prevent, or remedy such breach or threatened breach, in addition to any and all other remedies available to the Buyer at law or in equity. The Restricted Party hereby consents to the entry of any such injunctive or other equitable relief and agrees not to oppose the granting of such relief on the grounds that there exists an adequate remedy at law. The Buyer shall not be required to prove actual damages or post any bond, surety, or other security as a condition to obtaining any such injunctive or other equitable relief, and the Restricted Party hereby waives any requirement that the Buyer post any such bond, surety, or other security. The exercise of any rights under this Section 7.2 shall not constitute an election of remedies and shall not preclude the Buyer from pursuing any other remedies available at law or in equity, including the recovery of monetary damages.

Section 7.3 Extension of Restricted Period. If the Restricted Party violates any of the restrictive covenants set forth in Article II, Article III, Article IV, or Article VI of this Agreement, the Restricted Period applicable to such covenant shall be automatically extended by a period of time equal to the duration of such violation, commencing from the date on which such violation began and ending on the date on which such violation is finally cured, restrained, or enjoined by a court of competent jurisdiction, so that the Buyer shall receive the full benefit of the four (4)-year Restricted Period with respect to each such covenant. Any such extension shall be in addition to, and shall not limit, any other remedy available to the Buyer under this Agreement or at law or in equity.

Section 7.4 Accounting of Profits. In the event of any breach of any covenant or obligation contained in this Agreement, the Buyer shall be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration, benefits, or other monies or consideration realized or received by the Restricted Party, directly or indirectly, as a result of, arising out of, or in connection with such breach. Such accounting and repayment obligation shall be in addition to, and shall not limit, any other remedy available to the Buyer under this Agreement or at law or in equity, including without limitation injunctive relief and the recovery of monetary damages.

ARTICLE VIII — JUDICIAL MODIFICATION / BLUE PENCIL

Section 8.1 Severability and Reformation. If any provision of this Agreement, or any portion thereof, is found by a court of competent jurisdiction or an arbitral tribunal to be invalid, illegal, or unenforceable for any reason, including without limitation because such provision is deemed to be excessive in duration, geographic scope, or scope of restricted activity, such provision shall not be rendered void but shall instead be modified, amended, and reformed by such court or tribunal to the minimum extent necessary to render such provision valid, legal, and enforceable, while preserving to the maximum extent possible the original intent of the Parties and the economic benefits intended to be conferred upon the Buyer by such provision. The Parties expressly authorize any court of competent jurisdiction to reform, revise, or "blue pencil" any provision of this Agreement that is found to be overly broad or unenforceable, including by reducing the duration, geographic scope, or scope of restricted activity, to the extent necessary to render such provision enforceable, and the Parties agree to be bound by such reformed provision. In the event that any court declines to reform or modify any provision pursuant to this Section 8.1, such provision shall be severed from this Agreement, and the remaining provisions shall remain in full force and effect.

Section 8.2 Independence of Covenants. Each of the restrictive covenants set forth in Articles II, III, IV, V, and VI of this Agreement constitutes a separate, independent, and severable covenant and obligation. The invalidity, illegality, or unenforceability of any one covenant or provision shall not affect, impair, or render unenforceable any other covenant or provision of this Agreement, and each such covenant and provision shall be enforced to the fullest extent permitted by applicable law. The existence of any claim, demand, or cause of action by the Restricted Party against the Buyer, whether arising from this Agreement, the Purchase Agreement, or otherwise, shall not constitute a defense to the enforcement by the Buyer of any restrictive covenant contained in this Agreement.

ARTICLE IX — REPRESENTATIONS AND WARRANTIES OF RESTRICTED PARTY

The Restricted Party hereby represents and warrants to the Buyer as follows:

Section 9.1 Authority and Capacity. The Restricted Party has full legal capacity and authority to execute, deliver, and perform this Agreement and to carry out his obligations hereunder. This Agreement has been duly executed and delivered by the Restricted Party and constitutes the legal, valid, and binding obligation of the Restricted Party, enforceable against the Restricted Party in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity.

Section 9.2 No Conflicts. The execution, delivery, and performance of this Agreement by the Restricted Party do not and will not (a) conflict with, violate, or result in a breach of any agreement, contract, instrument, or understanding, whether written or oral, to which the Restricted Party is a party or by which the Restricted Party is bound; (b) violate any order, judgment, decree, writ, injunction, or ruling of any court, governmental authority, or arbitral tribunal applicable to the Restricted Party; or (c) violate any applicable law, statute, rule, or regulation.

Section 9.3 Reasonableness. The Restricted Party represents and acknowledges that he has carefully reviewed the terms, conditions, and restrictions of this Agreement, and that the restrictive covenants contained herein are reasonable and necessary in scope, duration, and geographic reach to protect the legitimate business interests of the Buyer in the Acquired Assets, including without limitation the goodwill, customer relationships, employee relationships, trade secrets, and other Confidential Information being acquired by the Buyer. The Restricted Party further represents and acknowledges that he has had a full and adequate opportunity to consult with independent legal counsel of his own choosing, namely the law firm of Caldwell, Pruitt & Shaw LLP, regarding the terms, conditions, and enforceability of this Agreement prior to its execution, and that he has either obtained such counsel or voluntarily elected not to do so.

Section 9.4 Adequate Consideration. The Restricted Party acknowledges and agrees that the consideration provided under the Purchase Agreement, including a material portion of the Ninety-Five Million Dollar ($95,000,000) Purchase Price payable thereunder, constitutes adequate, sufficient, and valuable consideration for the covenants, obligations, and restrictions contained in this Agreement. The Restricted Party further acknowledges that the benefits he will derive from the consummation of the transactions contemplated by the Purchase Agreement, both directly as the sole shareholder of the Seller and otherwise, are substantial and exceed the limitations imposed upon him by the restrictive covenants set forth herein.

ARTICLE X — GENERAL PROVISIONS

Section 10.1 Governing Law. This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law rules, provisions, or principles (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. The governing law provision set forth in this Section 10.1 is consistent with, and intended to complement, the governing law provision set forth in the Purchase Agreement.

Section 10.2 Jurisdiction and Venue. Each Party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the Supreme Court of the State of New York, County of New York, and the United States District Court for the Southern District of New York, in each case sitting in the Borough of Manhattan, City and State of New York, for purposes of any action, suit, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, and each Party hereby irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, (a) any objection that it may now or hereafter have to the laying of venue in any such court, (b) any claim that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum, and (c) any right to remove any such action, suit, or proceeding to any other court. Each Party agrees that a final, non-appealable judgment in any such action, suit, or proceeding shall be conclusive and may be enforced in any other jurisdiction by suit on the judgment or in any other manner provided by applicable law. Each Party further agrees that service of process in any such action, suit, or proceeding may be made by delivering a copy thereof in accordance with the notice provisions set forth in Section 10.7 of this Agreement.

Section 10.3 Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, COUNTERCLAIM, OR CROSS-CLAIM ARISING OUT OF, OR IN ANY WAY RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT ACTION, SUIT, OR PROCEEDING. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION, SUIT, OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 10.3.

Section 10.4 Entire Agreement. This Agreement, together with the Purchase Agreement, the intellectual Property Assignment Agreement, the Transition Services Agreement (if any), and the other transaction documents executed and delivered in connection with the transactions contemplated by the Purchase Agreement, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, warranties, commitments, offers, agreements, contracts, and understandings, whether written or oral, between the Parties with respect to the subject matter hereof.

Section 10.5 Amendment and Waiver. No amendment, modification, supplement, or restatement of any provision of this Agreement shall be effective unless made in writing and signed by both Parties. No waiver of any provision of this Agreement shall be effective unless made in writing and signed by the Party against whom enforcement of such waiver is sought. No failure or delay by any Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law or in equity.

Section 10.6 Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, the Parties and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns. The Buyer may assign this Agreement, in whole or in part, without the prior written consent of the Restricted Party, to (a) any affiliate of the Buyer, (b) any successor in interest to all or substantially all of the Acquired Assets, whether by merger, consolidation, sale of assets, or otherwise, or (c) Lakepoint Capital Partners, LP or any fund or vehicle managed or controlled by Lakepoint Capital Partners, LP. The Restricted Party may not assign this Agreement or delegate any of his obligations hereunder without the prior written consent of the Buyer, and any attempted assignment or delegation without such consent shall be null and void and of no force or effect.

Section 10.7 Notices. All notices, requests, demands, consents, waivers, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered in person, (b) on the date sent, if sent by email (with confirmation of receipt) prior to 5:00 p.m. Eastern Time on a business day, or on the next business day if sent after 5:00 p.m. Eastern Time or on a non-business day, (c) one (1) business day after being sent by nationally recognized overnight courier (with tracking and signature confirmation), or (d) three (3) business days after being deposited in the United States mail, first class, registered or certified, return receipt requested, postage prepaid, addressed as follows:

If to the Buyer:

Meridian Consumer Brands LLC 440 Park Avenue South, 18th Floor New York, NY 10016

Attention: Diana Ressler, General Counsel

Email: d.ressler@meridiancb.com

With a copy to (which shall not constitute notice):

Calderwood & Harkness LLP 599 Lexington Avenue, 36th Floor New York, NY 10022

Attention: Sandra Tung

Email: stung@calderwoodharkness.com

If to the Restricted Party:

Malcolm Greer c/o Briarwood Home Essentials, Inc. 1175 Creekside Drive, Suite 400 Columbus, OH 43215

Email: m.greer@briarwoodhome.com

With a copy to (which shall not constitute notice):

Caldwell, Pruitt & Shaw LLP 41 South High Street, Suite 2800 Columbus, OH 43215

Attention: Rachel Underwood

Email: runderwood@cpslaw.com

Either Party may change its address for notice purposes by giving notice to the other Party in accordance with this Section 10.7.

Section 10.8 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by facsimile, portable document format (.pdf), or other electronic transmission shall be as effective as delivery of an original executed counterpart.

Section 10.9 Construction. The headings and captions used in this Agreement are for convenience of reference only and shall not affect the meaning, interpretation, or construction of any provision of this Agreement. The word "or" is not exclusive. The words "herein," "hereof," "hereunder," and words of similar import refer to this Agreement as a whole and not to any particular section, article, or other subdivision. References to any "Section" or "Article" refer to the corresponding section or article of this Agreement. The word "including" (and all variations thereof) means "including without limitation." The use of the singular shall include the plural and vice versa, and the use of any gender shall include all genders. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any provision to be drafted.

Section 10.10 No Third-Party Beneficiaries. Except as expressly provided in this Section 10.10, this Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, remedy, or claim of any nature whatsoever under or by reason of this Agreement; provided, however, that Lakepoint Capital Partners, LP, a Delaware limited partnership, in its capacity as the Buyer's private equity sponsor, shall be an express third-party beneficiary of this Agreement and shall be entitled to enforce the terms hereof as if it were a party hereto.

Section 10.11 Attorneys' Fees and Costs. In any action, suit, or proceeding to enforce this Agreement, to obtain a declaration of the rights of the Parties under this Agreement, or otherwise arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover from the non-prevailing Party its reasonable attorneys' fees, costs, and expenses (including fees, costs, and expenses of expert witnesses, consultants, and other professionals), in addition to any other relief to which such prevailing Party may be entitled. For purposes of this Section 10.11, the "prevailing Party" shall mean the Party that achieves a substantially favorable result on the material issues in dispute, as determined by the court.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the Parties have executed this Non-Competition and Non-Solicitation Agreement as of the date first written above.

RESTRICTED PARTY:

________________________________________

Malcolm Greer, individually

Date: ________

BUYER:

MERIDIAN CONSUMER BRANDS LLC

By: ________

Name: Gareth Holloway

Title: CEO & Managing Member

Date: ________

SCHEDULE A

DESCRIPTION OF THE BUSINESS

The "Business" as used in the Agreement refers to the development, manufacture, marketing, distribution, and sale of consumer home cleaning products and consumer personal care products under the CleanLeaf and PureHaven brands, as more particularly described below:

CleanLeaf Product Line (Home Cleaning Products). The CleanLeaf brand comprises a line of eco-friendly home cleaning products, including multi-surface cleaners, glass and window cleaners, bathroom cleaners, kitchen degreasers, floor cleaners, laundry detergents, dishwasher detergents, and related cleaning accessories. The CleanLeaf product line is marketed and sold to retail consumers through mass-market retailers, grocery chains, natural and specialty retailers, and direct-to-consumer e-commerce channels. CleanLeaf products are formulated using plant-based, biodegradable ingredients and are marketed as environmentally responsible alternatives to conventional chemical-based cleaning products.

PureHaven Product Line (Personal Care Products). The PureHaven brand comprises a line of consumer personal care products, including hand soaps, body washes, shampoos, conditioners, hand and body lotions, and related personal care items. PureHaven products are formulated with natural and organic ingredients and are marketed as clean, sustainable personal care options. The PureHaven product line is marketed and sold through mass-market retailers, natural and specialty retailers, and direct-to-consumer e-commerce channels.

Active SKUs. As of the date of the Purchase Agreement, the Business includes approximately one hundred forty-two (142) active stock keeping units (SKUs) across the CleanLeaf and PureHaven product lines.

Manufacturing Facility. Products of the Business are manufactured at the Seller's manufacturing facility located at 2800 Industrial Parkway, Marysville, Ohio 43040 (the "Manufacturing Facility"). The Manufacturing Facility is included in the Acquired Assets.

Distribution Center. Products of the Business are warehoused and distributed from the Seller's distribution center located at 500 Commerce Boulevard, West Jefferson, Ohio 43162 (the "Distribution Center"). The Distribution Center is included in the Acquired Assets.

Revenue. The Business generated revenue of approximately Sixty-Eight Million Dollars ($68,000,000) for the fiscal year ended December 31, 2021.

Exclusions. The Business expressly excludes the Commercial Janitorial Services Division of the Seller, which provides commercial janitorial products and services to institutional and industrial customers and which is being retained by the Seller pursuant to the terms of the Purchase Agreement.

SCHEDULE B

TRANSFERRED EMPLOYEES

The Transferred Employees are the approximately one hundred eighty-six (186) employees of Briarwood Home Essentials, Inc. who are receiving and accepting offers of employment from Meridian Consumer Brands LLC (or an affiliate thereof) in connection with the consummation of the transactions contemplated by the Purchase Agreement. The complete list of Transferred Employees, including names, positions, departments, hire dates, and base compensation, is set forth on the Schedule of Transferred Employees attached as Exhibit D to the Purchase Agreement, which is incorporated herein by reference.

The categories of Transferred Employees include, without limitation, employees in the following departments and functions of the Business:

• Manufacturing and production (Marysville, OH facility)

• Warehousing and distribution (West Jefferson, OH facility)

• Quality assurance and quality control

• Research and development / product formulation

• Sales and business development

• Marketing and brand management

• Customer service

• Supply chain and procurement

• Finance and accounting (to the extent dedicated to the Business)

• Human resources (to the extent dedicated to the Business)

• Information technology (to the extent dedicated to the Business)

• Regulatory and compliance

For the avoidance of doubt, the Transferred Employees do not include employees of the Seller's Commercial Janitorial Services Division or any corporate-level employees of the Seller who are not primarily dedicated to the Business and who are being retained by the Seller.

SCHEDULE C

CUSTOMERS

The Customers subject to the non-solicitation covenant in Article IV of this Agreement include, without limitation, the twenty-three (23) customers whose contracts are being assigned to Meridian Consumer Brands LLC under the Purchase Agreement. A complete list of such customer contracts, including counterparty names, contract dates, expiration dates, and summary terms, is set forth on the Schedule of Assigned Contracts attached as Exhibit E to the Purchase Agreement, which is incorporated herein by reference.

In addition, the customer non-solicitation covenant covers all other Persons who were customers of the Business at any time during the twenty-four (24)-month period immediately preceding the Closing Date, whether or not such Persons are parties to written contracts being assigned to the Buyer. The Seller has separately provided to the Buyer a comprehensive customer list identifying all Customers of the Business during the applicable look-back period, which list is maintained as a confidential schedule to the Purchase Agreement.

The Parties acknowledge that the assigned customer contracts represent key commercial relationships of the Business, including relationships with major national retailers, regional grocery chains, natural and specialty retailers, and e-commerce platforms, and that the Restricted Party's personal relationships with the principals, buyers, and key decision-makers of such Customers constitute a material component of the goodwill being acquired by the Buyer.

NON-COMPETITION AND NON-SOLICITATION AGREEMENT
Draft — Exhibit B to the Asset Purchase Agreement
Prepared by Calderwood & Harkness LLP, 599 Lexington Avenue, 36th Floor, New York, NY 10022 Matter No. 1011-00005
NON-COMPETITION AND NON-SOLICITATION AGREEMENT
This NON-COMPETITION AND NON-SOLICITATION AGREEMENT (this "Agreement") is made and entered into as of __, 2022 (the "Effective Date"), by and between:
MALCOLM GREER, an individual residing in the State of Ohio (the "Restricted Party");
and
MERIDIAN CONSUMER BRANDS LLC, a Delaware limited liability company, with its principal office located at 440 Park Avenue South, 18th Floor, New York, NY 10016 (the "Buyer").
The Restricted Party and the Buyer are each referred to herein as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Buyer and Briarwood Home Essentials, Inc., an Ohio corporation (the "Seller"), have entered into that certain Asset Purchase Agreement, dated as of __, 2022 (the "Purchase Agreement"), pursuant to which, among other things, the Buyer has agreed to acquire from the Seller certain assets constituting the consumer product line of the Seller, including without limitation the "CleanLeaf" branded home cleaning product line and the "PureHaven" branded personal care product line, together with all related inventory, accounts receivable, equipment, intellectual property, customer contracts, and other assets more particularly described in the Purchase Agreement (collectively, the "Acquired Assets"), for a purchase price of Ninety-Five Million Dollars ($95,000,000) (the "Purchase Price"), subject to the terms and conditions set forth in the Purchase Agreement. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Purchase Agreement;
WHEREAS, Malcolm Greer is the President and sole shareholder of Briarwood Home Essentials, Inc. Greer founded Briarwood Home Essentials, Inc. in 2004 and has served continuously as its chief executive officer and principal decision-maker since its inception. By virtue of his ownership and management of the Seller, Greer possesses unique and extensive knowledge of the Acquired Assets and the Business (as defined below), including without limitation trade secrets, proprietary product formulations, customer relationships, supplier relationships, pricing strategies, marketing plans, distribution channels, product development roadmaps, manufacturing processes, and other confidential and competitively sensitive information relating to the CleanLeaf and PureHaven product lines. In addition, approximately one hundred eighty-six (186) employees of the Seller are expected to transfer to the Buyer in connection with the consummation of the transactions contemplated by the Purchase Agreement, and Greer has extensive personal and professional relationships with such employees developed over a period of nearly two decades;
WHEREAS, the execution and delivery of this Agreement by Greer is a condition precedent to the Buyer's obligation to consummate the transactions contemplated by the Purchase Agreement. A material portion of the Purchase Price payable under the Purchase Agreement constitutes valuable and adequate consideration for Greer's covenants and obligations hereunder, and Greer hereby acknowledges the adequacy and sufficiency of such consideration. Greer further acknowledges that the Buyer would not enter into the Purchase Agreement or consummate the transactions contemplated thereby absent Greer's execution and delivery of this Agreement;
WHEREAS, Greer acknowledges and agrees that the restrictive covenants contained in this Agreement are reasonable and necessary to protect the legitimate business interests of the Buyer in the Acquired Assets, including without limitation the goodwill of the Business, customer relationships, employee relationships, trade secrets, and other confidential and proprietary information being acquired by the Buyer. Greer further acknowledges that he has had a full and adequate opportunity to consult with independent legal counsel of his own choosing regarding the terms, conditions, and enforceability of this Agreement, and enters into this Agreement voluntarily and with full knowledge of its terms;
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and agreements set forth herein, the consummation of the transactions contemplated by the Purchase Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each Party, the Parties agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
(a) "Business" means the development, manufacture, formulation, marketing, advertising, promotion, distribution, and sale of consumer home cleaning products and consumer personal care products, including without limitation products of the type currently developed, manufactured, formulated, marketed, advertised, promoted, distributed, or sold, or that were developed, manufactured, formulated, marketed, advertised, promoted, distributed, or sold during the twelve (12)-month period prior to the Closing Date, under or in connection with the CleanLeaf and PureHaven brands or any successor or derivative brands thereof. For the avoidance of doubt, the term "Business" expressly excludes commercial janitorial services and the operations of the Seller's Commercial Janitorial Services Division (the "Retained Business"), which division is not part of the Acquired Assets and is being retained by the Seller pursuant to the terms of the Purchase Agreement.
(b) "Closing Date" means the date of the closing of the transactions contemplated by the Purchase Agreement, as defined in and determined in accordance with the Purchase Agreement.
(c) "Competing Business" means (i) any Person that is engaged in, or (ii) any division, unit, segment, subsidiary, or affiliate of any Person that is engaged in, the Business in the Territory; provided, however, that ownership of not more than two percent (2%) of the outstanding equity securities of any Person whose securities are listed on a national securities exchange or traded on a nationally recognized over-the-counter market shall not, by itself, constitute a Competing Business for purposes of this Agreement.
(d) "Confidential Information" means all non-public, proprietary, or confidential information and materials relating to the Business or the Acquired Assets, whether in written, oral, electronic, visual, or other form, and whether or not marked or designated as "confidential," including without limitation: (i) trade secrets; (ii) proprietary product formulations, compositions, recipes, and specifications (including, without limitation, all formulations for products sold under the CleanLeaf and PureHaven brands); (iii) customer lists, customer contact information, customer purchasing histories, and customer preferences; (iv) supplier and vendor information, including pricing, terms, and sourcing arrangements; (v) pricing data, pricing strategies, discount schedules, and margin information; (vi) marketing strategies, marketing plans, advertising campaigns, and brand positioning; (vii) product development plans, research and development initiatives, and product pipeline information; (viii) financial information, budgets, forecasts, and projections; (ix) technical and manufacturing know-how, processes, methods, and techniques; (x) employee information, compensation data, and organizational structures; (xi) distribution strategies, logistics arrangements, and supply chain information; and (xii) any other information that derives independent economic value from not being generally known to, and not being readily ascertainable by proper means by, other Persons who can obtain economic value from its disclosure or use. Notwithstanding the foregoing, "Confidential Information" shall not include information that: (A) is or becomes generally available to the public other than as a result of a disclosure by the Restricted Party or any of his representatives in violation of this Agreement; (B) was available to the Restricted Party on a non-confidential basis from a source other than the Business, the Seller, or the Buyer, provided that such source is not known by the Restricted Party to be bound by a confidentiality obligation to the Buyer, the Seller, or any of their respective affiliates with respect to such information; (C) is independently developed by the Restricted Party without the use of, or reference to, any Confidential Information; or (D) is required to be disclosed by applicable law, regulation, governmental order, or legal process, subject to compliance with Section 5.2(d) of this Agreement.
(e) "Customer" means any Person who was a customer of the Business, or who purchased products from or through the Business, at any time during the twenty-four (24)-month period immediately preceding the Closing Date, including without limitation the twenty-three (23) customers whose contracts are being assigned to the Buyer under the Purchase Agreement and listed on Schedule C hereto.
(f) "Person" means any individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization, governmental authority or agency, or any other entity of any kind or nature.
(g) "Restricted Period" means the period commencing on the Closing Date and ending on the fourth (4th) anniversary of the Closing Date; provided, however, that the Restricted Period shall be subject to extension pursuant to Section 7.3 of this Agreement in the event of any violation of the restrictive covenants set forth herein.
(h) "Territory" means (i) the United States of America (including all fifty (50) states, the District of Columbia, and all territories and possessions thereof) and (ii) Canada (including all provinces and territories thereof). The Parties acknowledge that the Territory reflects the geographic areas in which the Business has been conducted and products of the Business have been manufactured, distributed, marketed, and sold during the twenty-four (24)-month period prior to the Closing Date, and that the Territory is a reasonable geographic limitation in light of the scope and nature of the Business.
(i) "Transferred Employees" means the approximately one hundred eighty-six (186) employees of the Seller who receive and accept offers of employment from the Buyer (or an affiliate of the Buyer) in connection with the consummation of the transactions contemplated by the Purchase Agreement, as further described in the Purchase Agreement and the Schedule of Transferred Employees attached thereto as Schedule B hereto.
Section 1.2 Interpretation. Unless the context otherwise requires, words importing the singular include the plural and vice versa, words importing gender include all genders, and references to "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation." References to any agreement, document, or instrument shall mean such agreement, document, or instrument as amended, supplemented, or modified from time to time in accordance with its terms.
ARTICLE II — NON-COMPETITION
Section 2.1 Non-Competition Covenant. During the Restricted Period, the Restricted Party shall not, directly or indirectly, whether individually or in concert with any other Person, and whether as a principal, agent, partner, member, manager, officer, director, employee, consultant, advisor, independent contractor, investor, lender, guarantor, or in any other capacity whatsoever:
(a) engage in, own, manage, operate, control, finance, or participate in the ownership, management, operation, control, or financing of any Competing Business in the Territory;
(b) assist, advise, or provide services (whether as an employee, consultant, advisor, or otherwise) to any Person in connection with, or for the benefit of, any Competing Business in the Territory, including without limitation providing strategic, managerial, operational, technical, scientific, marketing, distribution, or financial services;
(c) lend his name, reputation, likeness, endorsement, or personal goodwill for use by, or in connection with, any Competing Business or any products or services offered by a Competing Business; or
(d) plan, prepare, or take any steps in furtherance of any of the activities described in clauses (a), (b), or (c) above.
Section 2.2 Scope Limitation — Consumer Products Only. The Parties acknowledge and agree that the non-competition covenant set forth in Section 2.1 applies solely to consumer home cleaning products and consumer personal care products within the scope of the defined Business and does not restrict the Restricted Party from engaging in, owning, managing, operating, or otherwise participating in any business that is outside the scope of the defined Business. Without limiting the generality of the foregoing, the non-competition covenant does not restrict the Restricted Party from engaging in, owning, managing, operating, or otherwise participating in commercial janitorial services or any other activities constituting the Retained Business, and the Restricted Party expressly retains the right to continue operating, and to participate in the operation of, the Commercial Janitorial Services Division retained by Briarwood Home Essentials, Inc. pursuant to the Purchase Agreement without limitation or restriction of any kind under this Agreement.
Section 2.3 Permitted Activities and Exceptions. Notwithstanding Section 2.1, the following activities shall not constitute a violation of the non-competition covenant:
(a) Passive Investment. The Restricted Party's ownership of not more than two percent (2%) of the outstanding equity securities of any Person whose securities are listed on a national securities exchange or traded on a nationally recognized over-the-counter market, even if such Person is engaged in a Competing Business, so long as the Restricted Party does not otherwise participate in the management, operation, or control of such Person and does not serve as a director, officer, employee, consultant, or advisor thereof.
(b) Retained Business. The Restricted Party's continued involvement with the Commercial Janitorial Services Division of Briarwood Home Essentials, Inc. and any other business of the Seller that does not constitute the Business, provided that such involvement does not serve as a vehicle for, or facilitate, the Restricted Party's engagement in or participation in a Competing Business.
(c) Transition Services. The Restricted Party's provision of transition services or cooperation to the Buyer pursuant to the Transition Services Agreement, if any, executed between the Parties or their respective affiliates in connection with the transactions contemplated by the Purchase Agreement, or as otherwise requested by the Buyer in writing.
ARTICLE III — NON-SOLICITATION OF EMPLOYEES
Section 3.1 Employee Non-Solicitation Covenant. During the Restricted Period, the Restricted Party shall not, directly or indirectly, whether individually or in concert with any other Person, and whether on his own behalf or on behalf of any other Person:
(a) solicit, recruit, hire, or engage, or attempt to solicit, recruit, hire, or engage, any Transferred Employee for employment or engagement as an independent contractor, consultant, or in any other capacity;
(b) induce, encourage, or attempt to induce or encourage any Transferred Employee to terminate, resign from, or otherwise cease his or her employment with the Buyer or any of the Buyer's affiliates, subsidiaries, or successors;
(c) otherwise interfere with, or attempt to interfere with, the employment relationship between the Buyer (or any of its affiliates, subsidiaries, or successors) and any Transferred Employee; or
(d) assist, facilitate, or encourage any other Person in taking any of the actions described in clauses (a), (b), or (c) above with respect to any Transferred Employee.
The Parties acknowledge that the non-solicitation covenant set forth in this Section 3.1 covers the approximately one hundred eighty-six (186) Transferred Employees identified on the Schedule of Transferred Employees, and that this restriction is reasonable and necessary to protect the Buyer's legitimate business interest in maintaining the stability, continuity, and productivity of its workforce following the closing of the transactions contemplated by the Purchase Agreement.
Section 3.2 Exceptions to Employee Non-Solicitation. Notwithstanding Section 3.1, the following shall not constitute a violation of the employee non-solicitation covenant:
(a) General Solicitations. The placement of general advertisements or postings for employment opportunities through newspapers, trade publications, Internet job boards, social media platforms (including Westmark Health IT general postings), or the engagement of recruiting or search firms conducting general searches, in each case that are not specifically directed at or targeted toward any Transferred Employee, even if a Transferred Employee responds to or applies for a position in response to such general solicitation.
(b) Previously Terminated Employees. The solicitation or hiring of any individual who was a Transferred Employee but whose employment with the Buyer (or any of its affiliates) was terminated by the Buyer (or such affiliate) without the involvement, inducement, encouragement, or assistance of the Restricted Party, and who has not been employed by the Buyer (or any of its affiliates) for a period of at least six (6) months prior to the date of such solicitation or hiring by the Restricted Party.
(c) Unsolicited Contacts. The hiring of any individual who was a Transferred Employee and who contacts the Restricted Party on his or her own initiative without any direct or indirect solicitation, recruitment, inducement, or encouragement by the Restricted Party, provided that such individual responds to a general solicitation of the type described in clause (a) above and is not specifically targeted by the Restricted Party.
ARTICLE IV — NON-SOLICITATION OF CUSTOMERS
Section 4.1 Customer Non-Solicitation Covenant. During the Restricted Period, the Restricted Party shall not, directly or indirectly, whether individually or in concert with any other Person, and whether on his own behalf or on behalf of any other Person:
(a) solicit, divert, or take away, or attempt to solicit, divert, or take away, any Customer, or any prospective customer of the Business, for the purpose of providing products or services that are competitive with the Business or that are of the type offered by the Business;
(b) induce, encourage, or attempt to induce or encourage any Customer to reduce, terminate, cancel, fail to renew, or otherwise adversely modify its business relationship with the Buyer (or any of its affiliates, subsidiaries, or successors);
(c) otherwise interfere with, or attempt to interfere with, the business relationship between the Buyer (or any of its affiliates, subsidiaries, or successors) and any Customer; or
(d) assist, facilitate, or encourage any other Person in taking any of the actions described in clauses (a), (b), or (c) above with respect to any Customer.
The Parties acknowledge that the customer non-solicitation covenant set forth in this Section 4.1 encompasses the twenty-three (23) customer contracts being assigned to the Buyer under the Purchase Agreement, as identified on Schedule C hereto, as well as all other Customers of the Business during the applicable twenty-four (24)-month look-back period preceding the Closing Date. The Parties further acknowledge that the Restricted Party's personal relationships with such Customers and knowledge of their purchasing patterns, preferences, and contractual terms constitute a valuable component of the goodwill being acquired by the Buyer, and that this restriction is reasonable and necessary to protect the Buyer's legitimate business interests.
Section 4.2 Non-Interference with Suppliers and Vendors. During the Restricted Period, the Restricted Party shall not, directly or indirectly, whether individually or in concert with any other Person, and whether on his own behalf or on behalf of any other Person:
(a) solicit, induce, or encourage, or attempt to solicit, induce, or encourage, any material supplier, vendor, service provider, or other business partner of the Business to terminate, cancel, fail to renew, or adversely modify its relationship, agreement, or arrangement with the Buyer (or any of its affiliates, subsidiaries, or successors);
(b) otherwise interfere with, or attempt to interfere with, the business relationship between the Buyer (or any of its affiliates, subsidiaries, or successors) and any such supplier, vendor, service provider, or other business partner; or
(c) take any action intended to, or that could reasonably be expected to, disrupt or impair the supply chain, manufacturing operations, or distribution capabilities of the Business.
ARTICLE V — CONFIDENTIALITY
Section 5.1 Confidentiality Obligations. The Restricted Party shall not, during or after the Restricted Period, directly or indirectly, use for his own benefit, or disclose, reveal, communicate, publish, or make available to any Person, any Confidential Information, except as expressly permitted by this Agreement or as authorized in writing by the Buyer. The Restricted Party acknowledges that the Confidential Information constitutes valuable, special, and unique assets of the Business and the Acquired Assets, the unauthorized use or disclosure of which would cause substantial and irreparable harm to the Buyer. With respect to Confidential Information that constitutes a "trade secret" under the Ohio Uniform Trade Secrets Act, the Defend Trade Secrets Act of 2016 (18 U.S.C. § 1836 et seq.), or any other applicable law (including without limitation all proprietary product formulations for the CleanLeaf and PureHaven product lines), the confidentiality obligations of this Section 5.1 shall continue in perpetuity for so long as such information retains its status as a trade secret. With respect to all other Confidential Information, the confidentiality obligations of this Section 5.1 shall continue for a period co-terminous with the Restricted Period, unless such information constitutes a trade secret under applicable law, in which case the perpetual obligation shall apply.
Section 5.2 Exceptions. The obligations of the Restricted Party under Section 5.1 shall not apply to Confidential Information that:
(a) is or becomes generally available to the public or within the relevant industry other than as a result of a disclosure by the Restricted Party or any of his representatives, agents, or affiliates in violation of this Agreement;
(b) was or becomes available to the Restricted Party on a non-confidential basis from a source other than the Business, the Seller, or the Buyer, provided that such source is not known by the Restricted Party to be bound by a confidentiality agreement with, or a legal, fiduciary, or other obligation of confidentiality to, the Buyer, the Seller, or any of their respective affiliates with respect to such information;
(c) is independently developed by the Restricted Party without the use of, reference to, or reliance upon any Confidential Information, as demonstrated by the Restricted Party's contemporaneous written records; or
(d) is required to be disclosed by applicable law, regulation, governmental order, subpoena, civil investigative demand, or other legal process; provided, however, that the Restricted Party shall (i) provide the Buyer with prompt written notice of such requirement prior to any such disclosure (to the extent legally permissible), (ii) cooperate with the Buyer, at the Buyer's expense, in seeking a protective order or other appropriate remedy to prevent or limit such disclosure, and (iii) disclose only that portion of the Confidential Information that is legally required to be disclosed.
Section 5.3 Defend Trade Secrets Act Notice. Pursuant to the Defend Trade Secrets Act of 2016 (18 U.S.C. § 1833(b)), the Restricted Party is hereby notified that an individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law, or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.
Section 5.4 Return of Materials. Upon the Closing Date, or at any time thereafter upon the Buyer's written request, the Restricted Party shall promptly return to the Buyer (or, at the Buyer's written direction, destroy) all documents, files, records, materials, notes, memoranda, reports, analyses, compilations, data, correspondence, electronic files, digital media, and all other tangible and intangible items in any form or medium that contain, reflect, or are derived from any Confidential Information, including all copies, reproductions, summaries, excerpts, and derivatives thereof in the Restricted Party's possession, custody, or control. The Restricted Party shall certify in writing to the Buyer his compliance with this Section 5.4 within ten (10) business days following the Closing Date or the Buyer's request, as applicable. Notwithstanding the foregoing, the Restricted Party may retain one (1) copy of this Agreement and any documents required to be retained pursuant to applicable law or regulation, subject to the continuing confidentiality obligations of this Article V.
ARTICLE VI — INTELLECTUAL PROPERTY NON-USE
Section 6.1 No Use of Acquired intellectual Property. The Restricted Party shall not, at any time during or after the Restricted Period, directly or indirectly:
(a) use, adopt, display, or exploit any trademark, service mark, trade name, brand name, logo, trade dress, slogan, domain name, social media handle, or other identifier that is identical to, or confusingly similar to, "CleanLeaf," "PureHaven," or any other trademark, service mark, trade name, or other intellectual property included in the Acquired Assets;
(b) apply to register, or cause or permit any other Person to apply to register, any trademark, service mark, trade name, domain name, or other identifier that is identical to, or confusingly similar to, any intellectual property included in the Acquired Assets, in any jurisdiction;
(c) challenge, contest, or assist any other Person in challenging or contesting the validity, enforceability, or ownership of any intellectual property included in the Acquired Assets or transferred to the Buyer pursuant to the Purchase Agreement or the intellectual Property Assignment Agreement; or
(d) represent, suggest, or imply to any Person that the Restricted Party retains any right, title, interest, license, or other authorization in or to any intellectual property included in the Acquired Assets.
The obligations of the Restricted Party under this Section 6.1 are in addition to, and shall not limit, the terms and conditions of the intellectual Property Assignment Agreement executed concurrently herewith at closing, and all other agreements regarding intellectual property executed in connection with the transactions contemplated by the Purchase Agreement.
ARTICLE VII — ENFORCEMENT AND REMEDIES
Section 7.1 Acknowledgment of Irreparable Harm. The Restricted Party acknowledges and agrees that the covenants and obligations contained in Articles II, III, IV, V, and VI of this Agreement are of a special, unique, and extraordinary character, and that a breach or threatened breach of any such covenant or obligation would cause the Buyer irreparable injury and damage for which monetary damages alone would be an inadequate and insufficient remedy. The Restricted Party further acknowledges that it would be impossible to measure in money the damages that would be suffered by the Buyer in the event of a breach or threatened breach of any such covenant or obligation.
Section 7.2 Injunctive Relief. In the event of a breach or threatened breach of any covenant or obligation contained in this Agreement, the Buyer shall be entitled to seek and obtain, from any court of competent jurisdiction, temporary restraining orders, preliminary injunctions, permanent injunctions, specific performance, and any other equitable relief as may be necessary or appropriate to restrain, prevent, or remedy such breach or threatened breach, in addition to any and all other remedies available to the Buyer at law or in equity. The Restricted Party hereby consents to the entry of any such injunctive or other equitable relief and agrees not to oppose the granting of such relief on the grounds that there exists an adequate remedy at law. The Buyer shall not be required to prove actual damages or post any bond, surety, or other security as a condition to obtaining any such injunctive or other equitable relief, and the Restricted Party hereby waives any requirement that the Buyer post any such bond, surety, or other security. The exercise of any rights under this Section 7.2 shall not constitute an election of remedies and shall not preclude the Buyer from pursuing any other remedies available at law or in equity, including the recovery of monetary damages.
Section 7.3 Extension of Restricted Period. If the Restricted Party violates any of the restrictive covenants set forth in Article II, Article III, Article IV, or Article VI of this Agreement, the Restricted Period applicable to such covenant shall be automatically extended by a period of time equal to the duration of such violation, commencing from the date on which such violation began and ending on the date on which such violation is finally cured, restrained, or enjoined by a court of competent jurisdiction, so that the Buyer shall receive the full benefit of the four (4)-year Restricted Period with respect to each such covenant. Any such extension shall be in addition to, and shall not limit, any other remedy available to the Buyer under this Agreement or at law or in equity.
Section 7.4 Accounting of Profits. In the event of any breach of any covenant or obligation contained in this Agreement, the Buyer shall be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration, benefits, or other monies or consideration realized or received by the Restricted Party, directly or indirectly, as a result of, arising out of, or in connection with such breach. Such accounting and repayment obligation shall be in addition to, and shall not limit, any other remedy available to the Buyer under this Agreement or at law or in equity, including without limitation injunctive relief and the recovery of monetary damages.
ARTICLE VIII — JUDICIAL MODIFICATION / BLUE PENCIL
Section 8.1 Severability and Reformation. If any provision of this Agreement, or any portion thereof, is found by a court of competent jurisdiction or an arbitral tribunal to be invalid, illegal, or unenforceable for any reason, including without limitation because such provision is deemed to be excessive in duration, geographic scope, or scope of restricted activity, such provision shall not be rendered void but shall instead be modified, amended, and reformed by such court or tribunal to the minimum extent necessary to render such provision valid, legal, and enforceable, while preserving to the maximum extent possible the original intent of the Parties and the economic benefits intended to be conferred upon the Buyer by such provision. The Parties expressly authorize any court of competent jurisdiction to reform, revise, or "blue pencil" any provision of this Agreement that is found to be overly broad or unenforceable, including by reducing the duration, geographic scope, or scope of restricted activity, to the extent necessary to render such provision enforceable, and the Parties agree to be bound by such reformed provision. In the event that any court declines to reform or modify any provision pursuant to this Section 8.1, such provision shall be severed from this Agreement, and the remaining provisions shall remain in full force and effect.
Section 8.2 Independence of Covenants. Each of the restrictive covenants set forth in Articles II, III, IV, V, and VI of this Agreement constitutes a separate, independent, and severable covenant and obligation. The invalidity, illegality, or unenforceability of any one covenant or provision shall not affect, impair, or render unenforceable any other covenant or provision of this Agreement, and each such covenant and provision shall be enforced to the fullest extent permitted by applicable law. The existence of any claim, demand, or cause of action by the Restricted Party against the Buyer, whether arising from this Agreement, the Purchase Agreement, or otherwise, shall not constitute a defense to the enforcement by the Buyer of any restrictive covenant contained in this Agreement.
ARTICLE IX — REPRESENTATIONS AND WARRANTIES OF RESTRICTED PARTY
The Restricted Party hereby represents and warrants to the Buyer as follows:
Section 9.1 Authority and Capacity. The Restricted Party has full legal capacity and authority to execute, deliver, and perform this Agreement and to carry out his obligations hereunder. This Agreement has been duly executed and delivered by the Restricted Party and constitutes the legal, valid, and binding obligation of the Restricted Party, enforceable against the Restricted Party in accordance with its terms, subject only to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity.
Section 9.2 No Conflicts. The execution, delivery, and performance of this Agreement by the Restricted Party do not and will not (a) conflict with, violate, or result in a breach of any agreement, contract, instrument, or understanding, whether written or oral, to which the Restricted Party is a party or by which the Restricted Party is bound; (b) violate any order, judgment, decree, writ, injunction, or ruling of any court, governmental authority, or arbitral tribunal applicable to the Restricted Party; or (c) violate any applicable law, statute, rule, or regulation.
Section 9.3 Reasonableness. The Restricted Party represents and acknowledges that he has carefully reviewed the terms, conditions, and restrictions of this Agreement, and that the restrictive covenants contained herein are reasonable and necessary in scope, duration, and geographic reach to protect the legitimate business interests of the Buyer in the Acquired Assets, including without limitation the goodwill, customer relationships, employee relationships, trade secrets, and other Confidential Information being acquired by the Buyer. The Restricted Party further represents and acknowledges that he has had a full and adequate opportunity to consult with independent legal counsel of his own choosing, namely the law firm of Caldwell, Pruitt & Shaw LLP, regarding the terms, conditions, and enforceability of this Agreement prior to its execution, and that he has either obtained such counsel or voluntarily elected not to do so.
Section 9.4 Adequate Consideration. The Restricted Party acknowledges and agrees that the consideration provided under the Purchase Agreement, including a material portion of the Ninety-Five Million Dollar ($95,000,000) Purchase Price payable thereunder, constitutes adequate, sufficient, and valuable consideration for the covenants, obligations, and restrictions contained in this Agreement. The Restricted Party further acknowledges that the benefits he will derive from the consummation of the transactions contemplated by the Purchase Agreement, both directly as the sole shareholder of the Seller and otherwise, are substantial and exceed the limitations imposed upon him by the restrictive covenants set forth herein.
ARTICLE X — GENERAL PROVISIONS
Section 10.1 Governing Law. This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law rules, provisions, or principles (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. The governing law provision set forth in this Section 10.1 is consistent with, and intended to complement, the governing law provision set forth in the Purchase Agreement.
Section 10.2 Jurisdiction and Venue. Each Party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the Supreme Court of the State of New York, County of New York, and the United States District Court for the Southern District of New York, in each case sitting in the Borough of Manhattan, City and State of New York, for purposes of any action, suit, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, and each Party hereby irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, (a) any objection that it may now or hereafter have to the laying of venue in any such court, (b) any claim that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum, and (c) any right to remove any such action, suit, or proceeding to any other court. Each Party agrees that a final, non-appealable judgment in any such action, suit, or proceeding shall be conclusive and may be enforced in any other jurisdiction by suit on the judgment or in any other manner provided by applicable law. Each Party further agrees that service of process in any such action, suit, or proceeding may be made by delivering a copy thereof in accordance with the notice provisions set forth in Section 10.7 of this Agreement.
Section 10.3 Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, COUNTERCLAIM, OR CROSS-CLAIM ARISING OUT OF, OR IN ANY WAY RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT ACTION, SUIT, OR PROCEEDING. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION, SUIT, OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 10.3.
Section 10.4 Entire Agreement. This Agreement, together with the Purchase Agreement, the intellectual Property Assignment Agreement, the Transition Services Agreement (if any), and the other transaction documents executed and delivered in connection with the transactions contemplated by the Purchase Agreement, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, warranties, commitments, offers, agreements, contracts, and understandings, whether written or oral, between the Parties with respect to the subject matter hereof.
Section 10.5 Amendment and Waiver. No amendment, modification, supplement, or restatement of any provision of this Agreement shall be effective unless made in writing and signed by both Parties. No waiver of any provision of this Agreement shall be effective unless made in writing and signed by the Party against whom enforcement of such waiver is sought. No failure or delay by any Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law or in equity.
Section 10.6 Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, the Parties and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns. The Buyer may assign this Agreement, in whole or in part, without the prior written consent of the Restricted Party, to (a) any affiliate of the Buyer, (b) any successor in interest to all or substantially all of the Acquired Assets, whether by merger, consolidation, sale of assets, or otherwise, or (c) Lakepoint Capital Partners, LP or any fund or vehicle managed or controlled by Lakepoint Capital Partners, LP. The Restricted Party may not assign this Agreement or delegate any of his obligations hereunder without the prior written consent of the Buyer, and any attempted assignment or delegation without such consent shall be null and void and of no force or effect.
Section 10.7 Notices. All notices, requests, demands, consents, waivers, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered in person, (b) on the date sent, if sent by email (with confirmation of receipt) prior to 5:00 p.m. Eastern Time on a business day, or on the next business day if sent after 5:00 p.m. Eastern Time or on a non-business day, (c) one (1) business day after being sent by nationally recognized overnight courier (with tracking and signature confirmation), or (d) three (3) business days after being deposited in the United States mail, first class, registered or certified, return receipt requested, postage prepaid, addressed as follows:
If to the Buyer:
Meridian Consumer Brands LLC 440 Park Avenue South, 18th Floor New York, NY 10016
Attention: Diana Ressler, General Counsel
Email: d.ressler@meridiancb.com
With a copy to (which shall not constitute notice):
Calderwood & Harkness LLP 599 Lexington Avenue, 36th Floor New York, NY 10022
Attention: Sandra Tung
Email: stung@calderwoodharkness.com
If to the Restricted Party:
Malcolm Greer c/o Briarwood Home Essentials, Inc. 1175 Creekside Drive, Suite 400 Columbus, OH 43215
Email: m.greer@briarwoodhome.com
With a copy to (which shall not constitute notice):
Caldwell, Pruitt & Shaw LLP 41 South High Street, Suite 2800 Columbus, OH 43215
Attention: Rachel Underwood
Email: runderwood@cpslaw.com
Either Party may change its address for notice purposes by giving notice to the other Party in accordance with this Section 10.7.
Section 10.8 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by facsimile, portable document format (.pdf), or other electronic transmission shall be as effective as delivery of an original executed counterpart.
Section 10.9 Construction. The headings and captions used in this Agreement are for convenience of reference only and shall not affect the meaning, interpretation, or construction of any provision of this Agreement. The word "or" is not exclusive. The words "herein," "hereof," "hereunder," and words of similar import refer to this Agreement as a whole and not to any particular section, article, or other subdivision. References to any "Section" or "Article" refer to the corresponding section or article of this Agreement. The word "including" (and all variations thereof) means "including without limitation." The use of the singular shall include the plural and vice versa, and the use of any gender shall include all genders. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any provision to be drafted.
Section 10.10 No Third-Party Beneficiaries. Except as expressly provided in this Section 10.10, this Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, remedy, or claim of any nature whatsoever under or by reason of this Agreement; provided, however, that Lakepoint Capital Partners, LP, a Delaware limited partnership, in its capacity as the Buyer's private equity sponsor, shall be an express third-party beneficiary of this Agreement and shall be entitled to enforce the terms hereof as if it were a party hereto.
Section 10.11 Attorneys' Fees and Costs. In any action, suit, or proceeding to enforce this Agreement, to obtain a declaration of the rights of the Parties under this Agreement, or otherwise arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover from the non-prevailing Party its reasonable attorneys' fees, costs, and expenses (including fees, costs, and expenses of expert witnesses, consultants, and other professionals), in addition to any other relief to which such prevailing Party may be entitled. For purposes of this Section 10.11, the "prevailing Party" shall mean the Party that achieves a substantially favorable result on the material issues in dispute, as determined by the court.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties have executed this Non-Competition and Non-Solicitation Agreement as of the date first written above.
RESTRICTED PARTY:
________________________________________
Malcolm Greer, individually
Date: ________
BUYER:
MERIDIAN CONSUMER BRANDS LLC
By: ________
Name: Gareth Holloway
Title: CEO & Managing Member
Date: ________
SCHEDULE A
DESCRIPTION OF THE BUSINESS
The "Business" as used in the Agreement refers to the development, manufacture, marketing, distribution, and sale of consumer home cleaning products and consumer personal care products under the CleanLeaf and PureHaven brands, as more particularly described below:
CleanLeaf Product Line (Home Cleaning Products). The CleanLeaf brand comprises a line of eco-friendly home cleaning products, including multi-surface cleaners, glass and window cleaners, bathroom cleaners, kitchen degreasers, floor cleaners, laundry detergents, dishwasher detergents, and related cleaning accessories. The CleanLeaf product line is marketed and sold to retail consumers through mass-market retailers, grocery chains, natural and specialty retailers, and direct-to-consumer e-commerce channels. CleanLeaf products are formulated using plant-based, biodegradable ingredients and are marketed as environmentally responsible alternatives to conventional chemical-based cleaning products.
PureHaven Product Line (Personal Care Products). The PureHaven brand comprises a line of consumer personal care products, including hand soaps, body washes, shampoos, conditioners, hand and body lotions, and related personal care items. PureHaven products are formulated with natural and organic ingredients and are marketed as clean, sustainable personal care options. The PureHaven product line is marketed and sold through mass-market retailers, natural and specialty retailers, and direct-to-consumer e-commerce channels.
Active SKUs. As of the date of the Purchase Agreement, the Business includes approximately one hundred forty-two (142) active stock keeping units (SKUs) across the CleanLeaf and PureHaven product lines.
Manufacturing Facility. Products of the Business are manufactured at the Seller's manufacturing facility located at 2800 Industrial Parkway, Marysville, Ohio 43040 (the "Manufacturing Facility"). The Manufacturing Facility is included in the Acquired Assets.
Distribution Center. Products of the Business are warehoused and distributed from the Seller's distribution center located at 500 Commerce Boulevard, West Jefferson, Ohio 43162 (the "Distribution Center"). The Distribution Center is included in the Acquired Assets.
Revenue. The Business generated revenue of approximately Sixty-Eight Million Dollars ($68,000,000) for the fiscal year ended December 31, 2021.
Exclusions. The Business expressly excludes the Commercial Janitorial Services Division of the Seller, which provides commercial janitorial products and services to institutional and industrial customers and which is being retained by the Seller pursuant to the terms of the Purchase Agreement.
SCHEDULE B
TRANSFERRED EMPLOYEES
The Transferred Employees are the approximately one hundred eighty-six (186) employees of Briarwood Home Essentials, Inc. who are receiving and accepting offers of employment from Meridian Consumer Brands LLC (or an affiliate thereof) in connection with the consummation of the transactions contemplated by the Purchase Agreement. The complete list of Transferred Employees, including names, positions, departments, hire dates, and base compensation, is set forth on the Schedule of Transferred Employees attached as Exhibit D to the Purchase Agreement, which is incorporated herein by reference.
The categories of Transferred Employees include, without limitation, employees in the following departments and functions of the Business:
•  Manufacturing and production (Marysville, OH facility)
•  Warehousing and distribution (West Jefferson, OH facility)
•  Quality assurance and quality control
•  Research and development / product formulation
•  Sales and business development
•  Marketing and brand management
•  Customer service
•  Supply chain and procurement
•  Finance and accounting (to the extent dedicated to the Business)
•  Human resources (to the extent dedicated to the Business)
•  Information technology (to the extent dedicated to the Business)
•  Regulatory and compliance
For the avoidance of doubt, the Transferred Employees do not include employees of the Seller's Commercial Janitorial Services Division or any corporate-level employees of the Seller who are not primarily dedicated to the Business and who are being retained by the Seller.
SCHEDULE C
CUSTOMERS
The Customers subject to the non-solicitation covenant in Article IV of this Agreement include, without limitation, the twenty-three (23) customers whose contracts are being assigned to Meridian Consumer Brands LLC under the Purchase Agreement. A complete list of such customer contracts, including counterparty names, contract dates, expiration dates, and summary terms, is set forth on the Schedule of Assigned Contracts attached as Exhibit E to the Purchase Agreement, which is incorporated herein by reference.
In addition, the customer non-solicitation covenant covers all other Persons who were customers of the Business at any time during the twenty-four (24)-month period immediately preceding the Closing Date, whether or not such Persons are parties to written contracts being assigned to the Buyer. The Seller has separately provided to the Buyer a comprehensive customer list identifying all Customers of the Business during the applicable look-back period, which list is maintained as a confidential schedule to the Purchase Agreement.
The Parties acknowledge that the assigned customer contracts represent key commercial relationships of the Business, including relationships with major national retailers, regional grocery chains, natural and specialty retailers, and e-commerce platforms, and that the Restricted Party's personal relationships with the principals, buyers, and key decision-makers of such Customers constitute a material component of the goodwill being acquired by the Buyer.

NON-COMPETITION AND NON-SOLICITATION AGREEMENT

NON-COMPETITION AND NON-SOLICITATION AGREEMENT

RECITALS

RESTRICTED PARTY:

MERIDIAN CONSUMER BRANDS LLC

SCHEDULE A

DESCRIPTION OF THE BUSINESS

SCHEDULE B

TRANSFERRED EMPLOYEES

SCHEDULE C

CUSTOMERS

Record

Parties

Dates

Amounts