Thanks for writing back...good to hear from you again!
I am glad to answer your additional questions in the order presented. After you rate my answers, please feel free to post any further questions directly to my attention, if desired, by simply typing in the text box "Ask Your Question" here: LawHelpNow
"AA. When the sale was agree Navis (the buyer) verbally told PMS that the company would be sold within 5 years or at worst 6 years. We are already in the 6th year and they are now saying that it may take another few years. This is as you can imagine very frustrating for PMS who wants to get on with his life. Is there a time limit that can be relied upon?" No, unfortunately the law doesn't provide a strict time table in this regard. Meaning, the law doesn't say "X" amount of time is alright, while "Y" amount of time is impermissible. Without a written agreement stipulating such, a reviewing Court would apply a "reasonable under the circumstances" standard. It's rather much a guessing game, frankly, which was the Judge would like rule. Only through formal litigation could the issue be pushed.
"BB. Can PMS design and make furniture for his own use? i.e. not sell it so that he could work on a new collection and display it but that non of the pieces are available for sale? In other words is 'compete' essential?" This is, again, a bit of a gray area, to be honest. A reviewing Court would apply what might be called (my words) a "substance over form" analysis. In other words, were the modifications made to the furniture "substantial" or merely a "sham". If they were truly different items, that is one thing. But, if it's an attempt to circumvent the non-compete agreement by tinkering with a few superficial things, it won't pass muster. And again, each case is decided on its own merits, so it's very difficult (actually impossible) to speak much in terms of absolutes.
"BB.A At what point would you expect the line to be drawn, can PMS paint and or sculpt? or design and retail product that is not made by T&A?" That's an excellent question, and it provides some further detail to the discussion supra. The key word is "similar", as found in 8.1(a) under "Restrictive Covenants. This language covers "design, manufacture, supply or sale", and it's quite well and broadly drafted to be cover just as much territory as possible. Perhaps the best illustration I can give would be to imagine two items being placed before a Judge. He or she will look at each item, most likely guided by expert testimony, and determine whether item "A" (let's say from PMS) is or is not "similar" to item "B" (from T&A). Again, it all comes down to the facts and the arguments made. One could say that a Ford is "similar" to a Chevrolet. Then again, each one is readily identifiable upon a quick glance (to those who know cars), and car owners loyal to each camp would certainly argue against my statement concerning similarity.
"BB.B. Q. What can PMS not do?" In all candor, the contractual language is strongly drafted in favor of PMS. There is perhaps a hint of restriction down in 8.2, but as far as enumerating certain acts from which PMS must refrain, the agreement is silent in that regard. It focuses on "Protective Covenants", further up a bit in 8 and onward, which serves to protect PMS and restrain its competitors, whether present or potential (future).
"CC. Do Navis have to prove loss or just prove that PMS in breaking the agreement? What does be in competition with mean. Does PMS have to effect their sales?" On this point the law is more precise, thankfully. Technically, Navis simply has to prove a breach. However, that can amount to a rather hollow "moral victory". Here's a common example. Say I own a house and you trespass across my front lawn. No visible damage, just walked a few steps across my grass, but I didn't like it, so I sue you. I have videotape evidence, and you have no viable affirmative defense. So, I win. Yes, you are liable for wrongfully stepping on my lawn. However, my likely damages? Perhaps one dollar, what we call "nominal damages". So, I "win", but I'm out thousands in litigation costs, not to mention my time and hassle. In the real world, and especially in the business context, there's really no case, practically speaking, without substantial monetary damages to justify pursuing litigation.
"DD. Once the company is sold and PMS gets paid (he had already departed from the company and is only kept informed indirectly) you agree the instrument looses its teeth. However would it be possible for Navis to sell the company reinforcing this clause in anyway or for the new owner to be able to claim damages from PMS." Yes, provided the succession takes place after the date of termination of the agreement, this is a possible outcome. It would come down to a matter of the successor company in interest making its determination of the risks versus rewards of filing suit. I will say, however, that while theoretically possible, whether it's feasible can be another matter altogether. It's difficult to properly prove up a case as the original party in interest, and it only gets more difficult further down the line in time.
Thank you for allowing for to serve you. It's truly been a pleasure!