SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO THE EXCHANGE ACT.
THE COVENANTS AND
RESTRICTIONS AGAINST COMPETITION CONTAINED IN THIS SECTION 5.1 (I) SHALL ONLY
APPLY TO SOFTWARE PRODUCTS AND RELATED TECHNOLOGIES AND SERVICES DEVELOPED,
DESIGNED, MANUFACTURED, PROVIDED AND/OR SOLD FOR THE HOSPITALITY AND
MANUFACTURING SOFTWARE MARKETS AND (II) SHALL NOT, FOR THE AVOIDANCE OF DOUBT,
RESTRICT THE EXECUTIVE FROM, DIRECTLY OR INDIRECTLY OWNING, MANAGING, OPERATING,
CONTROLLING, OR PARTICIPATING IN THE OWNERSHIP, MANAGEMENT, OPERATION OR CONTROL
OF, OR WORKING FOR OR PROVIDING CONSULTING SERVICES TO, OR PERMITTING THE USE OF
HIS NAME BY OR LENDING MONEY TO BUSINESSES ENGAGED IN OR ACTIVITIES RELATED TO
DEVELOPING, MARKETING, SELLING, LICENSING OR SERVICING SOFTWARE AND RELATED
TECHNOLOGIES FOR SUPPLY CHAIN MANAGEMENT, AND (III) SHALL NOT APPLY TO THE
EXTENT THAT SOFTBRANDS IS IN DEFAULT IN THE PAYMENT OF ANY OBLIGATION OWED TO
THE EXECUTIVE.
Nothing in this Section 5.1 shall limit Executive's fiduciary obligations as a
director after December 31, 2007.
5.2
CONFIDENTIAL INFORMATION.
DURING THE EXECUTIVE TERM AND
THEREAFTER, EXECUTIVE AGREES TO KEEP SECRET AND TO RETAIN IN THE STRICTEST
CONFIDENCE ALL MATERIAL CONFIDENTIAL MATTERS WHICH RELATE TO SOFTBRANDS OR ITS
"AFFILIATE" (AS THAT TERM IS DEFINED IN THE EXCHANGE ACT), INCLUDING, WITHOUT
LIMITATION CUSTOMER LISTS, CLIENT LISTS, TRADE SECRETS, PRICING LISTS, BUSINESS
PLANS, FINANCIAL PROJECTIONS AND REPORTS, BUSINESS STRATEGIES, INTERNAL
OPERATING PROCEDURES, AND OTHER CONFIDENTIAL BUSINESS INFORMATION FROM WHICH
SOFTBRANDS DERIVES AN ECONOMIC OR COMPETITIVE ADVANTAGE, OR FROM WHICH
SOFTBRANDS MIGHT DERIVE SUCH ADVANTAGE IN ITS BUSINESS, LABELED "SECRET" OR
"CONFIDENTIAL" OR SOME SIMILAR TERM, AND NOT TO INTENTIONALLY DISCLOSE ANY SUCH
INFORMATION TO ANYONE OUTSIDE OF SOFTBRANDS, WHETHER DURING OR AFTER THE
EXECUTIVE TERM, EXCEPT IN CONNECTION WITH PURSUING IN GOOD FAITH THE INTERESTS
AND BUSINESS OF SOFTBRANDS.
THE FOREGOING RESTRICTIONS AND OBLIGATIONS UNDER
THIS SECTION 5.2 WILL NOT APPLY (I) TO ANY CONFIDENTIAL INFORMATION THAT IS OR
BECOMES GENERALLY AVAILABLE TO THE PUBLIC OR GENERALLY KNOWN TO PERSONS ENGAGED
IN BUSINESSES SIMILAR TO OR RELATED TO THAT OF SOFTBRANDS, OTHER THAN AS A
RESULT OF A DISCLOSURE BY EXECUTIVE, (II) IF THE EXECUTIVE IS REQUIRED BY LAW TO
MAKE DISCLOSURE, OR (III) TO DISCLOSURE MADE TO ANY DIRECTOR OF SOFTBRANDS.
SOFTBRANDS MAY WAIVE APPLICATION OF THE FOREGOING RESTRICTIONS AND OBLIGATIONS
IN ITS DISCRETION FROM TIME TO TIME.
5.3
NON-SOLICITATION OF CUSTOMERS.
DURING THE EXECUTIVE TERM, THE
EXECUTIVE WILL HAVE ACCESS TO CONFIDENTIAL RECORDS AND DATA PERTAINING TO
SOFTBRANDS' CUSTOMERS, THEIR NEEDS, AND THE RELATIONSHIP BETWEEN SOFTBRANDS AND
ITS CUSTOMERS.
SUCH INFORMATION IS CONSIDERED SECRET AND IS DISCLOSED DURING
THE EXECUTIVE TERM IN CONFIDENCE.
ACCORDINGLY, THROUGH DECEMBER 31, 2007,
EXECUTIVE AND ANY ENTITY CONTROLLED BY HIM OR WITH WHICH HE IS ASSOCIATED (AS
THE TERMS "CONTROL" AND "ASSOCIATE" ARE DEFINED IN THE EXCHANGE ACT) SHALL NOT,
DIRECTLY OR INDIRECTLY (I) SOLICIT FOR A COMPETITIVE PURPOSE, INTERFERE WITH,
INDUCE OR ENTICE AWAY ANY PERSON OR ENTITY THAT IS OR WAS A CLIENT, CUSTOMER OR
AGENT OF SOFTBRANDS OR ITS AFFILIATES (AS THE TERM "AFFILIATE" IS DEFINED IN THE
EXCHANGE ACT) OR (II) IN