TO BE PAID HEREUNDER IN
CONNECTION WITH THE TRANSACTION AND THE GOODWILL OF SELLER'S TABLE
43
GAMES BUSINESS SOLD AND LICENSED IN CONNECTION THEREWITH, SELLER AGREES THAT FOR
A PERIOD OF SEVEN (7) YEARS FOLLOWING THE CLOSING DATE, SELLER SHALL NOT, AND
SHALL CAUSE ANY OF SUCH PERSON'S AFFILIATES NOT TO, DIRECTLY OR INDIRECTLY,
EITHER FOR ITSELF, HIMSELF OR HERSELF OR THROUGH ANY OTHER PERSON, ENGAGE IN,
PARTICIPATE IN, OR PERMIT SUCH PERSON'S NAME TO BE USED BY ANY ENTERPRISE
ENGAGING IN THE TYPES OF ACTIVITIES PERFORMED BY OR OTHERWISE COMPETE IN OR WITH
THE TABLE GAMES BUSINESS AND/OR ANY RELATED DESIGNING, LICENSING, LEASING,
DEVELOPING, MANUFACTURING, PACKAGING, MARKETING, DISTRIBUTING OR SELLING OF
THOSE SERVICES AND PRODUCTS THAT CONSTITUTE THE TABLE GAMES BUSINESS, ANYWHERE
IN THE WORLD (THE "SELLER'S NON-COMPETE AGREEMENT") (IT BEING UNDERSTOOD AND
AGREED THAT NOTHING HEREIN WILL PREVENT SELLER, SUBJECT TO ANY APPLICABLE TERMS
AND CONDITIONS OF THIS AGREEMENT OR ANY RELATED AGREEMENT, FROM ENGAGING IN
SYSTEM SALES AND LICENSES, EXCEPT AS SET FORTH BELOW). NOTWITHSTANDING THE
FOREGOING, ONLY WITH RESPECT TO ANY THIRD PARTY ACQUIRER, SELLER'S NON-COMPETE
AGREEMENT SHALL LAST: (X) RESPECTING ANY FELT OR PROGRESSIVE TABLE GAMES, FOR A
PERIOD EQUAL TO THE GREATER OF FOUR (4) YEARS FROM THE CLOSING DATE OR THREE (3)
YEARS OF THE DATE OF CLOSING OF ANY SUCH ACQUISITION OF SELLER, BUT IN NEITHER
EVENT LONGER THAN SIX (6) YEARS FOLLOWING THE CLOSING DATE AND (Y) RESPECTING
ANY ELECTRONIC TABLE GAME, THERE SHALL BE NO COVENANT NOT TO COMPETE; FURTHER
PROVIDED THAT, SUCH THIRD PARTY ACQUIRER CAN CONTINUE ITS EXISTING BONA FIDE
TABLE GAME BUSINESS IN THE SAME FORM, SCOPE AND MANNER AS EXISTED SIX (6) MONTHS
PRIOR TO THE DATE OF CLOSING OF ANY ACQUISITION OF SELLER, PROVIDED THAT AT THE
TIME OF ANY SUCH ACQUISITION AND THEREAFTER, SUCH ACQUIRER DOES NOT AND IS NOT
INFRINGING ANY OF THE TABLE GAMES INTELLECTUAL PROPERTY OR ANY OF BUYER'S OTHER
INTELLECTUAL PROPERTY AND DOES NOT CHALLENGE (AND IS NOT CHALLENGING) THE
ENFORCEABILITY OF ANY OF THE TABLE GAMES INTELLECTUAL PROPERTY OR BUYER'S OTHER
INTELLECTUAL PROPERTY.
FOR PURPOSES OF THIS AGREEMENT, THE TERM "PARTICIPATE"
INCLUDES ANY DIRECT OR INDIRECT INTEREST IN ANY ENTERPRISE, WHETHER AS A
STOCKHOLDER, MEMBER, PARTNER, JOINT VENTURER, FRANCHISOR, FRANCHISEE, EXECUTIVE,
CONSULTANT OR OTHERWISE (OTHER THAN BY OWNERSHIP OF LESS THAN TEN PERCENT (10%)
OF THE STOCK OF A PUBLICLY HELD CORPORATION) OR RENDERING ANY DIRECT OR INDIRECT
SERVICE OR ASSISTANCE TO ANY PERSON.
SELLER AGREES THAT THE SELLER'S
NON-COMPETE AGREEMENT IS REASONABLY DESIGNED TO PROTECT BUYER'S SUBSTANTIAL
INVESTMENT AND IS REASONABLE WITH RESPECT TO ITS DURATION, GEOGRAPHICAL AREA AND
SCOPE.
IF ANY PROVISION OF THIS SECTION 7.9(A) VIOLATES ANY LAW, SELLER SHALL
NOT BE LIABLE FOR ANY LOSS SUFFERED BY BUYER, EXCEPT TO THE EXTENT THAT ANY SUCH
LOSS IS CAUSED BY THE CONDUCT OF SELLER.
(B)
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY AND IN
ADDITION TO AND AS SEPARATE LIMITATIONS, RESTRICTIONS AND OBLIGATIONS ON SELLER
AND ANY ACQUIRER AS THOSE CONTAINED IN SECTION 7.9(A), NEITHER