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continually bid against each other for contracts with
supermarkets and other retailers. Lynch also testified that a
major reason Harmony Foods acquired Washington Chocolate was to
consolidate the industry and eliminate competition. With this in
mind, it is very clear that the $500,000 allocated to the
noncompete clause was intended for that purpose and not as
payment for the assets of Washington Chocolate.
Petitioner became an employee of Harmony Foods after he sold
Washington Chocolate, and subsequently an employee of Glico.
Lynch testified that he intended to work with petitioner after
Washington Chocolate was sold to Harmony Foods. The purpose of
petitioner's employment with Harmony Foods was to assist in
distributing some of Harmony Foods' products to petitioner's
customers, and some of petitioner's products to Harmony Foods'
customers. Lynch testified that petitioner's presence after the
sale of Washington Chocolate helped with the transition of
customers. The commission payments petitioner received pursuant
to paragraph 4.B of the employment agreement were in connection
with his status as an at-will employee and his assistance with
the customer transition. Paragraph 4.B provided that the
commissions were based on a percentage of net sales, and that
petitioner was entitled to the commissions whether or not he was
responsible for generating the sales. The minimum and maximum
aggregate commissions payable for the 7-year period pursuant to
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