MOERBEEK, JAMES WISENER, DAVID RODRIGUE, AND
CHERYL L. CLARY SHALL RESIGN, IN WRITING, FROM ALL POSITIONS HELD BY HIM AS AN
OFFICER, DIRECTOR, EMPLOYEE, CONSULTANT AND/OR INDEPENDENT CONTRACTOR OF THE
COMPANY, EFFECTIVE AS OF THE CLOSING DATE.
SECTION 5.6
FURTHER ASSURANCES.
SELLER AND
PURCHASER EACH AGREE THAT FROM TIME TO TIME AFTER THE CLOSING DATE, THEY WILL
EXECUTE AND DELIVER, AND WILL CAUSE THEIR RESPECTIVE AFFILIATES TO EXECUTE AND
DELIVER SUCH FURTHER DOCUMENTS AND INSTRUMENTS, AND TAKE, AND CAUSE THEIR
RESPECTIVE AFFILIATES TO TAKE SUCH OTHER ACTION, AS MAY BE REASONABLY NECESSARY
TO CARRY OUT THE PURPOSES AND INTENTS OF THIS AGREEMENT.
SECTION 5.7
RESTRICTIVE COVENANTS. SELLER AND
PURCHASER COVENANT AND AGREE AS FOLLOWS:
(A)
STATEMENT OF ENFORCEABILITY.
SELLER
ACKNOWLEDGES THAT THIS SECTION 5.7 IS ENTERED INTO IN CONJUNCTION WITH THE SALE
OF A GOING CONCERN BUSINESS AND IS FULLY ENFORCEABLE AS WRITTEN UNDER TEX. BUS.
COMM. CODE §15.50 AND OTHER APPLICABLE LAWS.
SELLER FURTHER ACKNOWLEDGES THAT
THE PROVISIONS IN THIS SECTION 5.7 ARE CONDITIONS PRECEDENT AND MATERIAL
INDUCEMENTS TO PURCHASER ENTERING INTO THIS AGREEMENT AND CONSUMMATING THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(B)
NONCOMPETITION COVENANT.
SELLER AGREES THAT,
DURING THE RESTRICTED PERIOD, IT WILL NOT, AND WILL NOT PERMIT ANY OTHER SELLER
RESTRICTED PERSON, TO, FOR ITSELF OR ANY OTHER PERSON, ENGAGE IN ANY RESTRICTED
ACTIVITY ANYWHERE IN THE RESTRICTED TERRITORY, EXCEPT ON BEHALF OF THE COMPANY
IN PROVIDING ANY TRANSITION SERVICES AGREED UPON IN WRITING BY THE PARTIES IN
CONNECTION WITH THIS AGREEMENT.
(C)
NONSOLICITATION COVENANT.
SELLER AGREES THAT,
DURING THE RESTRICTED PERIOD (EXCEPT FOR EMPLOYMENT ADVERTISEMENTS WHICH ARE
PLACED IN NEWSPAPERS OR OTHER PERIODICALS OF GENERAL CIRCULATION), IT WILL NOT,
AND WILL NOT PERMIT ANY OTHER SELLER RESTRICTED PERSON, FOR ITSELF OR ANY OTHER
PERSON, TO DIRECTLY OR INDIRECTLY, INDUCE OR ATTEMPT TO INDUCE ANY PERSON KNOWN
TO SELLER TO BE EMPLOYED BY THE PURCHASER GROUP IN A MANAGERIAL OR SUPERVISORY
CAPACITY TO LEAVE THE EMPLOY OF THE PURCHASER GROUP, EXCEPT, IN EACH CASE, IF
SUCH PERSON FIRST SOLICITS ANY SELLER RESTRICTED PERSON.
(D)
MUTUAL NONDISPARAGEMENT COVENANT. NEITHER ANY OF
THE SELLER RESTRICTED PERSONS, ON THE ONE HAND, NOR THE PURCHASER GROUP, ON THE
OTHER HAND, WILL, OR ENCOURAGE ANY OF THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS,
OFFICERS, EMPLOYEES, OR AGENTS TO, AT ANY TIME DURING OR AFTER THE RESTRICTED
PERIOD, DISPARAGE THE OTHER PARTY OR ANY OF ITS SHAREHOLDERS, DIRECTORS,
OFFICERS, EMPLOYEES, AGENT, SUBSIDIARIES, OR AFFILIATES.
(E)
REMEDIES.
(I)
INJUNCTIVE REMEDY.
SELLER ACKNOWLEDGES
THAT THE FOREGOING RESTRICTIONS IN THIS SECTION 5.7 (THE "RESTRICTIONS"),
INCLUDING THOSE RELATING TO GEOGRAPHIC AREA,
32
DURATION AND SCOPE OF ACTIVITY, IN VIEW OF THE NATURE OF THE BUSINESS IN WHICH
THE PURCHASER GROUP HAS BEEN, IS AND WILL BE ENGAGED, ARE REASONABLE AND
NECESSARY IN ORDER TO PROTECT THE GOODWILL AND OTHER LEGITIMATE BUSINESS
INTERESTS OF THE PURCHASER GROUP, AND THAT ANY VIOLATION THEREOF WOULD RESULT IN
IMMEDIATE AND IRREPARABLE INJURY TO THE PURCHASER GROUP, AND SELLER, THEREFORE,
FURTHER ACKNOWLEDGES THAT, IN THE EVENT IT VIOLATES, OR THREATENS TO VIOLATE,
ANY OF