A PERSON OR ENTITY MEANS ANY PERSON OR
ENTITY CONTROLLED BY, CONTROLLING OR UNDER COMMON CONTROL WITH SUCH
PERSON OR ENTITY, OR ANY MEMBER OF THE IMMEDIATE FAMILY, INCLUDING PARENTS,
SPOUSE, CHILDREN OR SIBLINGS, OF A PERSON, PROVIDED, HOWEVER, THAT SELLER AND
THE COMPANY SHALL NOT BE CONSIDERED AN AFFILIATE OF EACH OTHER.
(B)
GEOGRAPHIC EXTENT OF COVENANT.
THE OBLIGATIONS OF SELLER UNDER
SECTION 1(A) SHALL APPLY IN ANY STATE IN WHICH THE COMPANY IS LOCATED, OPERATES,
PROVIDES OR INTENTS TO PROVIDE PRODUCTS OR SERVICES OR DOES BUSINESS IN ON THE
DATE HEREOF.
SELLER HEREBY ACKNOWLEDGES THAT THE GEOGRAPHIC BOUNDARIES, SCOPE
OF PROHIBITED ACTIVITIES AND THE TIME DURATION OF THE PROVISIONS OF THIS
SECTION 1 ARE REASONABLE AND ARE NO BROADER THAN ARE NECESSARY TO PROTECT THE
LEGITIMATE BUSINESS INTERESTS OF THE BUYER INCLUDING, WITHOUT LIMITATION, THE
ABILITY OF THE BUYER TO REALIZE THE BENEFIT OF ITS BARGAIN AND ENJOY THE
GOODWILL OF THE COMPANY.
(C)
LIMITATION ON COVENANT.
OWNERSHIP BY SELLER, AS A PASSIVE
INVESTMENT, OF LESS THAN 3% OF THE OUTSTANDING SHARES OF CAPITAL STOCK OF ANY
CORPORATION LISTED ON A NATIONAL SECURITIES EXCHANGE OR PUBLICLY TRADED ON ANY
NATIONALLY RECOGNIZED OVER-THE-COUNTER MARKET SHALL NOT CONSTITUTE A BREACH OF
THIS SECTION 1.
(D)
INDIRECT COMPETITION.
SELLER FURTHER AGREES THAT DURING THE TERM
OF THIS AGREEMENT SELLER WILL NOT, DIRECTLY OR INDIRECTLY, ASSIST OR ENCOURAGE
ANY OTHER PERSON IN CARRYING OUT, DIRECTLY OR INDIRECTLY, ANY ACTIVITY THAT
WOULD BE PROHIBITED BY THE FOREGOING PROVISIONS OF THIS SECTION 1 IF SUCH
ACTIVITY WERE CARRIED OUT BY SELLER, EITHER DIRECTLY OR INDIRECTLY.
IN
PARTICULAR, SELLER AGREES THAT SELLER WILL NOT, DIRECTLY OR INDIRECTLY, INDUCE
ANY EMPLOYEE OF THE BUYER, ITS AFFILIATES OR THE COMPANY TO CARRY OUT, DIRECTLY
OR INDIRECTLY, ANY SUCH ACTIVITY.
(E)
NONCOMPETE PERIOD UNDER THE EMPLOYMENT AGREEMENT.
THE BUYER AND
SELLER HAVE ENTERED INTO A CERTAIN EMPLOYMENT AGREEMENT (THE "EMPLOYMENT
AGREEMENT"), DATED APRIL 23, 2004, WHICH EMPLOYMENT AGREEMENT CONTAINS SEPARATE
NONCOMPETE PROVISIONS.
THE PARTIES HERETO AGREE THAT, SHOULD THE NONCOMPETE
PROVISIONS OF THIS AGREEMENT AND OF THE EMPLOYMENT AGREEMENT EVER BE
SIMULTANEOUSLY APPLICABLE TO SELLER, THE PERIOD DURING WHICH SELLER SHALL BE
RESTRICTED FROM COMPETING WITH THE BUYER, ITS AFFILIATES AND THE COMPANY SHALL
BE THE LATER TO EXPIRE OF (I) THE RESTRICTED PERIOD OR (II) THE PERIOD DURING
WHICH SELLER IS RESTRICTED FROM COMPETING UNDER THE EMPLOYMENT AGREEMENT.
2.
NONSOLICITATION.
DURING THE RESTRICTED PERIOD, SELLER SHALL NOT,
DIRECTLY OR INDIRECTLY, THROUGH AN AFFILIATE OR OTHERWISE, EITHER FOR SELLER'S
OWN BENEFIT OR FOR THE BENEFIT OF ANY OTHER PERSON, FIRM, CORPORATION,
GOVERNMENTAL OR PRIVATE ENTITY, OR ANY OTHER ENTITY OF ANY KIND, WITHOUT THE
PRIOR WRITTEN CONSENT OF THE BUYER, WHICH CONSENT MAY BE WITHHELD BY THE BUYER
IN ITS SOLE DISCRETION, (I) SOLICIT, OR ATTEMPT TO SOLICIT ANY OFFICER,
DIRECTOR, EMPLOYEE, CONSULTANT, CONTRACTOR, AGENT, LESSOR, LESSEE, LICENSOR,
LICENSEE, SUPPLIER OF THE BUYER, ITS AFFILIATES OR THE COMPANY, TO TERMINATE,
ALTER OR LESSEN THAT PARTY'S AFFILIATION WITH THE BUYER, ITS AFFILIATES OR THE
COMPANY, OR TO VIOLATE