FAHNESTOCK VINER HOLDINGS INC
EXHIBIT 10.3 NON-COMPETITION AGREEMENT
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EXHIBIT 10.3
FAHNESTOCK VINER HOLDINGS INC.
FORM 8-K DATED JANUARY 17, 2003
NON-COMPETITION AGREEMENT

<p><a name="ReturnHereAfterFooterUpdate"></a>THIS <b>NON-COMPETITION
AGREEMENT</b> is made as of the 9th day of December 2002.</p>

<p><b>BY:</b> <b>CIBC WORLD MARKETS CORP.</b>, a Delaware
Corporation (&quot;CIBCWM&quot;)</p>

<blockquote>
    <blockquote>
        <blockquote>
            <p>and</p>
        </blockquote>
    </blockquote>
</blockquote>

<p><b>CANADIAN IMPERIAL BANK OF COMMERCE</b>, a bank under the
laws of Canada</p>

<p><b>IN FAVOUR OF: VINER FINANCE INC.</b>, a corporation
incorporated under the laws of Delaware</p>

<blockquote>
    <blockquote>
        <blockquote>
            <p>and</p>
        </blockquote>
    </blockquote>
</blockquote>

<p><b>FAHNESTOCK &amp; CO. INC.</b>, a corporation incorporated
under the laws of New York</p>

<p>(collectively referred to herein as, the
&quot;Purchaser&quot;)</p>

<blockquote>
    <blockquote>
        <blockquote>
            <blockquote>
                <blockquote>
                    <blockquote>
                        <blockquote>
                            <p>RECITALS:</p>
                        </blockquote>
                    </blockquote>
                </blockquote>
            </blockquote>
        </blockquote>
    </blockquote>
    <p>A. Pursuant to the Asset Purchase Agreement, the Purchaser
    has agreed to purchase certain of the property and assets
    used primarily in the Brokerage Business, as currently
    conducted by CIBCWM in the U.S.;</p>
    <p>B. The obligations of the Purchaser under the Asset
    Purchase Agreement are subject to the condition that CIBCWM
    execute and deliver this Non-Competition Agreement;</p>
    <p>C. The Purchaser acknowledges that, in addition to the
    Brokerage Business, CIBCWM currently carries on in the U.S.
    (independently and in conjunction with other subsidiaries and
    affiliates of Canadian Imperial Bank of Commerce (Canadian
    Imperial Bank of Commerce and its subsidiaries and
    affiliates, including CIBCWM, are collectively referred to
    herein as, &quot;CIBC&quot;) a merchant banking business, and
    a full service investment banking and securities business
    serving institutional and other non-retail market segments;</p>
    <p>D. CIBC acknowledges that at the closing of the
    transaction, CIBC will cease to carry on in the U.S. the
    Brokerage Business and that the re-establishment of such a
    business by CIBC within a reasonable period of time following
    closing of the transaction contemplated in the Asset Purchase
    Agreement would diminish the value of the Brokerage Business
    to the Purchaser; and</p>
    <p>E. This Agreement is intended to recognize the
    Purchaser&#146;s interest in CIBC not re-establishing a
    Brokerage Business in the U.S. within a reasonable period of
    time, and the interest of CIBC in being free to continue to
    carry on its other existing businesses in U.S. and elsewhere.</p>
</blockquote>

<p>NOW THEREFORE in consideration of the foregoing and other good
and valuable consideration given by the Purchaser to CIBC, CIBC
agrees with the Purchaser as follows:</p>

<p><b>1.</b> <b><u>Definitions</u></b></p>

<blockquote>
    <p>&quot;Asset Management Business&quot; has the meaning
    ascribed to it in the Asset Purchase Agreement. </p>
    <p>&quot;Asset Purchase Agreement&quot; means an agreement
    dated as of December [9], 2002 among Fahnestock Viner
    Holdings Inc., Viner Finance Inc., CIBC and CIBCWM. </p>
    <p>&quot;Brokerage Account&quot; means a Retail Account or a
    Coverage Account. </p>
    <p>&quot;Brokerage Business&quot; has the meaning ascribed to
    it in the Asset Purchase Agreement. </p>
    <p>&quot;Brokerage Closing Date&quot; has the meaning
    ascribed to it in the Asset Purchase Agreement. </p>
    <p>&quot;Brokerage Services&quot; means the type of brokerage
    services provided as part of the Brokerage Business. </p>
    <p>&quot;CIBCWM&quot; means CIBC World Markets Corp. </p>
    <p>&quot;Coverage Account&quot; means an account listed on
    the coverage list attached hereto as Schedule A, which
    Schedule A forms a part of this agreement. </p>
    <p>&quot;New Issues&quot; means the offer or sale of (i)
    newly issued securities or (ii) securities for which the
    offer and sale is registered with the U.S. Securities and
    Exchange Commission.</p>
    <p>&quot;Restricted City&quot; means any city in the U.S. in
    which CIBCWM operated a retail branch that engaged in the
    Brokerage Business as of the Brokerage Closing Date and was
    transferred to Purchaser pursuant to the Asset Purchase
    Agreement. </p>
    <p>&quot;Retail Account&quot; means an account of a Retail
    Client.</p>
    <p>&quot;Retail Branch&quot; means a branch office as such
    term is defined in Rule 3010(g) of the Conduct Rules of the
    National Association of Securities Inc. and includes a branch
    office that is a satellite or independent office.</p>
    <p>&quot;Retail Clients&quot; means (a) a natural person in
    his or her personal capacity, (b) a trust or other entity
    created for the benefit of a natural person in his personal
    capacity and/or his or her immediate family, or (c) a private
    company or other entity controlled by a natural person in his
    or her personal capacity and/or his immediate family, and for
    greater certainty does not include (i) a corporate,
    institutional or government client which is not covered by
    clauses (b) or (c) above, (ii) a client who is an employee of
    CIBCWM or any of its affiliates, or (iii) a client resident
    in the U.S. who established an account prior to the Brokerage
    Closing Date with one of CIBCWM&#146;s affiliates located
    outside of the U.S.</p>
    <p>&quot;Special Products&quot; means one or more of
    derivative products, structured financial products, prime
    brokerage services (except Coverage Accounts) and other
    similar products and services.</p>
    <p>&quot;Subsidiary&quot; has the meaning ascribed to it in
    the Asset Purchase Agreement. </p>
    <p>&quot;U.S.&quot; means the United States of America.</p>
    <p>Capitalized terms not defined in this agreement have the
    meanings ascribed to them in the Asset Purchase Agreement.</p>
</blockquote>

<p><b>2. </b><b><u>Non-Competition</u></b></p>

<blockquote>
    <p>CIBCWM shall not (and will ensure that each of its
    Subsidiaries does not), for the period from the Brokerage
    Closing Date until March 31, 2003, directly or indirectly, in
    any manner whatsoever provide Brokerage Services to any
    Brokerage Account;</p>
    <p>CIBCWM shall not (and will ensure that each of its
    Subsidiaries does not), from the Brokerage Closing Date until
    the earlier of (a) two years after the Brokerage Closing Date
    and (b) the date on which CIBCWM ceases to provide research
    to Purchaser pursuant to the Research Agreement (the
    &quot;Termination Date&quot;), assign sales coverage or
    provide research to any Coverage Account;</p>
    <p>CIBCWM shall not (and will ensure that each of its
    Subsidiaries does not), for a period of three years after the
    Brokerage Closing Date, (i) open a Retail Branch in a
    Restricted City if such Retail Branch carries on a business
    which is the same as or substantially similar to or competes
    with or would compete with the Brokerage Business, nor (ii)
    provide Brokerage Services to any Retail Account.</p>
</blockquote>

<p><b>3. </b><b><u>Exceptions</u></b></p>

<p>Notwithstanding section 2, nothing shall prevent:</p>

<blockquote>
    <p>3.1 CIBC from providing Brokerage Services to any Coverage
    Account if such Brokerage Services constitute trading in
    response to an electronic bid or offer, or are Brokerage
    Services provided in connection with New Issues, or
    constitute the provision of Special Products;</p>
    <p>3.2 CIBC from effecting a merger, amalgamation or other
    business combination transaction in which CIBC is a
    constituent corporation to such merger, amalgamation or other
    business combination transaction (&quot;Parent Bank
    Merger&quot;) with a Person who has a business in the U.S.
    that is the same as or substantially similar to or which
    competes with or would compete with the Brokerage Business,
    provided that (i) CIBCWM does not own the Trademarks at the
    time of the Parent Bank Merger or, (ii) in the event that
    CIBCWM owns or has the contingent right to acquire the
    Trademarks at the time of the Parent Bank Merger, CIBCWM
    permanently transfers the Trademarks to Purchaser;</p>
    <p>3.3 CIBC (or any of its subsidiaries) from effecting an
    acquisition, merger, business combination or similar
    transaction other than a Parent Bank Merger
    (&quot;Merger&quot;) with a Person (&quot;Target&quot;) whose
    business, directly or indirectly, derives 25% or less of its
    total revenues during the 12 month period prior to the time
    the Merger is announced from business in the U.S. that is the
    same as or substantially similar to or which competes with or
    would compete with the Brokerage Business; <i>provided,
    however,</i> that following the Merger, CIBCWM or the
    resulting Person from the Merger shall not open a new Retail
    Branch that carries on a business that is the same as or
    substantially similar to or which competes with or would
    compete with the Brokerage Business in a Restricted City
    until the expiration of three years from the Brokerage
    Closing Date, except: (i) in a Restricted City in which
    Target had a Retail Branch prior to the announcement of the
    Merger or (ii) in the event that CIBCWM owns or has the right
    to acquire the Trademarks at the time of the Merger, in
    Restricted City in which Target had a Retail Branch for a
    period of one year prior to the announcement of the Merger </p>
    <p>3.4 CIBCWM and its affiliates from effecting or
    recommending transactions, either as principal or as agent on
    behalf of third parties, in the ordinary course of the
    business of CIBCWM and its affiliates, in, relating to or
    involving:</p>
    <blockquote>
        <blockquote>
            <p>(a) (i) securities of companies engaged in
            businesses competitive with the Brokerage Business,
            including transactions in which CIBCWM or its
            affiliates are acting as an investment banking
            organization providing advisory services, or (ii) the
            provision of investment banking services to
            investment advisors, mutual funds, investment
            companies, or broker/dealers or services as an
            underwriter or placement agent of securities, or
            market maker, specialist, arbitrageur or block
            positioner in such securities, and</p>
            <p>financial assets and liabilities and the related
            factoring and servicing operations of CIBCWM and its
            affiliates, including, without limitation,
            transactions involving deposit account, commercial
            and consumer loans, commercial and residential
            mortgages, government-backed or government-insured
            asset-related securities, accounts receivables and
            other evidences of indebtedness;</p>
        </blockquote>
    </blockquote>
    <p>3.5. CIBCWM or any of its affiliates from engaging in a
    strategic transaction (other than a Parent Bank Merger or
    Merger, as defined in Section 3.2 and Section 3.3,
    respectively) with any Person, provided that CIBCWM and its
    affiliates: (i) do not provide or make available to such
    business any intellectual property or other CIBCWM
    proprietary information which is the subject matter of the
    Asset Purchase Agreement, (ii) do not engage in marketing or
    promotion in respect of any business in the U.S. that is the
    same as or substantially similar to or which competes with or
    would compete with the Brokerage Business and (iii) do not
    otherwise participate in the management or operation of any
    business in the U.S. that is the same as or substantially
    similar to or which competes with or would compete with the
    Brokerage Business;</p>
    <p>3.6. CIBCWM or any of its affiliates from providing
    execution or Brokerage Services directly related to employee
    stock option plan service contracts through accounts, which
    may include accounts for this purpose only for corporate
    clients and employees within the U.S.;</p>
    <p>3.7. CIBCWM or any of its affiliates from completing
    existing OTC derivative transactions; or</p>
    <p>3.8 CIBCWM or any of its affiliates from providing
    Brokerage services to their employees, including, but not
    limited to, Retained Employee Customer Accounts (as defined
    in the Asset Purchase Agreement).</p>
</blockquote>

<p><b>4. </b><b><u>Non-Solicitation</u></b></p>

<p>CIBC agrees that for a period of three years from and after
the Brokerage Closing Date, without the prior written consent of
Purchaser, CIBC shall not, (A) directly or indirectly or through
an intermediary, solicit, induce or encourage any broker, manager
or executive of Purchaser or its Affiliates, to terminate such
person&#146;s employment relationship with Purchaser or its
Affiliates, as the case may be; <u>provided</u>, that the
foregoing shall not apply to (i) general solicitations through
general advertising, general internet postings or other similar
non-targeted advertising of employees by CIBC and (ii)
solicitations conducted by an entity that is acquired by or
merged with CIBC or its Affiliates so long as such solicitations
were conducted prior to the date of such acquisition or merger
and (B) employ, directly or indirectly, any broker, manager or
executive of Purchaser or its Affiliates if such broker, manager
or executive is indebted to Purchaser or its Affiliates pursuant
to Purchaser&#146;s broker retention programs or pursuant to the
Broker Loans (as defined in the Asset Purchase Agreement)
assigned by CIBC to Purchaser pursuant to the Loan Assignment
Agreement (as defined in the Asset Purchase Agreement).</p>

<p><b>5. </b><b><u>Acknowledgements and Agreements</u></b></p>

<blockquote>
    <p>CIBCWM acknowledges and agrees that:</p>
    <p>5.1. the covenants contained herein are intended to ensure
    that the Purchaser receives the full benefit of the goodwill
    of the Brokerage Business; and</p>
    <p>5.2 Purchaser is relying on the acknowledgements and
    agreements contained herein in connection with its purchase
    of the Brokerage Business.</p>
</blockquote>

<p><b>6. </b><b><u>Invalidity of Provisions</u></b></p>

<p>Each of the provisions contained in this agreement is distinct
and severable and a declaration of invalidity or unenforceability
of any such provision or part thereof by a court of competent
jurisdiction shall not affect the validity or enforceability of
any other provisions hereof. To the extent permitted by
applicable law, the parties waive any provision of law that
renders any provision of this agreement invalid or unenforceable
in any respect.</p>

<p><b>7. </b><b><u>Remedies</u></b></p>

<p>CIBCWM acknowledges that a breach or threatened breach by
CIBCWM or any of its affiliates of any provision of this
agreement could result in the Purchaser suffering irreparable
harm which cannot be calculated or fully or adequately
compensated by recovery of damages alone. Accordingly, CIBCWM
agrees that, in addition to any other relief to which the
Purchaser may become entitled, the Purchaser shall be entitled to
seek interim and permanent injunctive relief, specific
performance and other equitable remedies.</p>

<p>CIBCWM expressly acknowledges that this agreement is
reasonable and valid in all respects and irrevocably waives (and
irrevocably agrees not to raise) as a defense any issue of
reasonableness (including the reasonableness of the territory or
the duration and scope of this agreement) in any proceeding to
enforce any provision of this agreement.</p>

<p>CIBCWM shall, at its own expense, take all lawful actions,
including legal proceedings, to prevent or stop any violation,
contravention or breach of this agreement. In the absence of such
action by CIBCWM, the Purchaser may take such action in its own
name or otherwise.</p>

<p>CIBCWM shall immediately notify the Purchaser of any
violation, contravention or breach of this agreement as soon as
it becomes aware of any such event.</p>

<p><b>8. </b><b><u>Amendment</u></b></p>

<p>No modifications, amendment or waiver of any of the provisions
of this agreement shall be effective unless made with the prior
written consent of the parties hereto.</p>

<p><b>9. </b><b><u>Enurement</u></b></p>

<p>This agreement shall enure to the benefit of the Purchaser,
its successors and assigns, and shall be binding upon CIBC and
its respective successors, and assigns.</p>

<p><b>10. </b><b><u>Waiver</u></b></p>

<p>No waiver of any of the provisions of this agreement shall be
deemed to constitute a waiver of any other provision (whether or
not similar); nor shall waiver be binding unless executed in
writing by the party to be bound by the waiver.</p>

<p>No failure on the part of any party to exercise, and no delay
in exercising any right under this agreement shall operate as a
waiver of such right; nor shall any single or partial exercise of
any such right preclude any other or further exercise of such
right or the exercise of any other right.</p>

<p><b>11. </b><b><u>Governing Law</u></b></p>

<p>This agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to
agreements made and to be performed therein.</p>

<p>IN WITNESS WHEREOF the parties have executed this agreement.</p>

<p><b>CIBC WORLD MARKETS CORP.</b></p>

<p>by:<u> /s/ Michael Capatides </u></p>

<p>Name: Michael Capatides</p>

<p>Title: General Counsel</p>

<p><b>CANADIAN IMPERIAL BANK OF COMMERCE</b></p>

<p>by:<u> /s/ Gerry McCaughey </u></p>

<p>Name: Gerry McCaughey</p>

<p>Title: Senior Executive Vice President</p>

<p><b>VINER FINANCE INC.</b></p>

<p>by:<u> /s/ Elaine Roberts </u></p>

<p>Name: Elaine Roberts</p>

<p>Title: President</p>

<p><b>FAHNESTOCK &amp; CO. INC.</b></p>

<p>by:<u> /s/ A.G. Lowenthal </u></p>

<p>Name: A.G. Lowenthal</p>

<p>Title: CEO and Chairman of the Board</p>
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