CONSENT OF THE
BUYER, DIRECTLY OR INDIRECTLY, OWN AN INTEREST IN, MANAGE, OPERATE, JOIN,
CONTROL, LEND MONEY OR RENDER FINANCIAL OR OTHER ASSISTANCE TO OR PARTICIPATE IN
OR BE CONNECTED WITH, AS AN OFFICER, EMPLOYEE, PARTNER, STOCKHOLDER, CONSULTANT
OR OTHERWISE, ANY PERSON ENGAGED IN DEVELOPING, MANUFACTURING, PRODUCING,
MARKETING OR SUPPLYING PRODUCTS OR SERVICES, OR ENGAGED IN OTHER ACTIVITIES, OF
THE KIND DEVELOPED, MANUFACTURED, PRODUCED, MARKETED, SUPPLIED OR CONDUCTED BY
BUYER, GISH OR THEIR RESPECTIVE SUCCESSORS (INCLUDING PRODUCTS AND SERVICES THAT
ARE ACTIVELY BEING CONSIDERED BY SUCH ENTITIES) PRIOR TO THE CLOSING OR DURING
THE RESTRICTED PERIOD; PROVIDED, HOWEVER, THAT FOR THE PURPOSES OF THIS
SECTION 12.1, (I) THE SALE BY SELLER OR ITS AFFILIATES TO ANY PERSON, INCLUDING
ANY PERSON ENGAGED IN COMPETITION WITH GISH, BUYER OR ANY AFFILIATE OF BUYER, OF
MATERIALS FOR ANY PURPOSE (EXCLUSIVE OF ANY MATERIAL CONTAINING ANY OF THE GBS
FAMILY OF HEPARIN AND/OR NON-HEPARIN COATINGS), AND (II) THE OWNERSHIP OF
SECURITIES HAVING NO MORE THAN ONE PERCENT OF THE OUTSTANDING VOTING POWER OF
ANY
62
COMPETITOR WHICH ARE LISTED ON ANY NATIONAL SECURITIES EXCHANGE SHALL NOT BE
DEEMED TO BE IN VIOLATION OF THIS SECTION 12.1 AS LONG AS (WITH RESPECT TO THE
EXCEPTION STATED IN CLAUSE (II)), THE PERSON OWNING SUCH SECURITIES HAS NO OTHER
CONNECTION OR RELATIONSHIP WITH SUCH COMPETITOR.
(B)
AS A SEPARATE AND INDEPENDENT COVENANT, THE SELLER AGREES WITH THE
BUYER THAT, DURING THE RESTRICTED PERIOD, SELLER AND ITS AFFILIATES WILL NOT IN
ANY WAY, DIRECTLY OR INDIRECTLY, FOR THE PURPOSE OF CONDUCTING OR ENGAGING IN
ANY BUSINESS THAT MANUFACTURES, PRODUCES OR SUPPLIES PRODUCTS OR SERVICES OF THE
KIND MANUFACTURED, PRODUCED OR SUPPLIED BY GISH (OR ITS RESPECTIVE SUCCESSORS)
PRIOR TO THE CLOSING OR DURING THE RESTRICTED PERIOD, CALL UPON, SOLICIT, ADVISE
OR OTHERWISE DO, OR ATTEMPT TO DO, BUSINESS WITH ANY CUSTOMERS OF GISH WITH WHOM
GISH HAD ANY DEALINGS DURING ANY PART OF A TWO YEAR PERIOD PRIOR TO CLOSING OR
DURING THE RESTRICTED PERIOD OR TAKE AWAY OR INTERFERE OR ATTEMPT TO INTERFERE
WITH ANY CUSTOM, TRADE, BUSINESS OR PATRONAGE OF GISH (OR ITS SUCCESSORS), OR
INTERFERE WITH OR ATTEMPT TO INTERFERE WITH THE OFFICERS, EMPLOYEES,
REPRESENTATIVES OR AGENTS OF EITHER BUYER OR GISH (OR THEIR RESPECTIVE
SUCCESSORS), OR INDUCE OR ATTEMPT TO INDUCE ANY OF THEM TO LEAVE THE EMPLOY OF
BUYER OR GISH OR VIOLATE THE TERMS OF THEIR CONTRACTS, OR ANY EMPLOYMENT
ARRANGEMENTS, WITH BUYER OR GISH; PROVIDED, HOWEVER, THAT THE FOREGOING WILL NOT
PROHIBIT A GENERAL SOLICITATION TO THE PUBLIC OF GENERAL ADVERTISING.
(C)
THE RESTRICTED PERIOD FOR SELLER AND ITS AFFILIATES SHALL BE
EXTENDED BY THE LENGTH OF ANY PERIOD DURING WHICH SUCH SELLER OR SUCH AFFILIATE
IS IN BREACH OF THE TERMS OF THIS SECTION 12.1.
(D)
IF, AT THE TIME OF ENFORCEMENT OF THIS SECTION 12.1, A COURT SHALL
HOLD THAT THE DURATION, SCOPE, AREA OR OTHER RESTRICTIONS STATED HEREIN ARE
UNREASONABLE UNDER CIRCUMSTANCES THEN EXISTING, EACH OF SELLER AND BUYER AGREE
THAT IT IS THE INTENTION OF THE