SUCH EFFORTS HAVE BEEN AND
WILL BE FUNDED BY THE COMPANY AND MR. ERVIN HAS BEEN AND WILL BE FAIRLY
COMPENSATED AND REIMBURSED FOR SUCH EFFORTS.
MR. ERVIN ACKNOWLEDGES THAT ALL
GOODWILL DEVELOPED BY MR. ERVIN RELATIVE TO THE COMPANY'S CUSTOMERS, VENDORS AND
EMPLOYEES IS THE SOLE AND EXCLUSIVE PROPERTY OF THE COMPANY AND IS NOT PERSONAL
TO MR. ERVIN.
ACCORDINGLY, IN ORDER TO AFFORD THE COMPANY REASONABLE PROTECTION
OF SUCH GOODWILL, FOR A PERIOD COMMENCING ON THE SEPARATION DATE AND CONTINUING
UNTIL MARCH 31, 2012, MR. ERVIN SHALL NOT ENGAGE OR BECOME INTERESTED, DIRECTLY
OR INDIRECTLY, AS OWNER, EMPLOYEE, PARTNER, THROUGH STOCK OWNERSHIP (EXCEPT THE
OWNERSHIP OF LESS THAN 1% OF THE OUTSTANDING SECURITIES OF A CORPORATION
PUBLICLY TRADED AND LISTED ON A NATIONAL SECURITIES EXCHANGE), INVESTMENT OF
CAPITAL, LENDING OF MONEY OR PROPERTY, RENDERING OF SERVICES, OR OTHERWISE,
WHETHER ALONE OR IN ASSOCIATION WITH OTHERS, IN THE OPERATION OF ANY BUSINESS OR
ENTERPRISE IN ANY WAY COMPETITIVE TO ANY BUSINESS PRESENTLY OR HEREAFTER
CONDUCTED BY THE COMPANY OR ANY AFFILIATE ANYWHERE IN THE WORLD.
WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, MR. ERVIN SHALL NOT, DIRECTLY OR
INDIRECTLY: (I) SOLICIT OR ACCEPT ORDERS FOR PRODUCTS OR SERVICES COMPETITIVE TO
THOSE SOLD OR OTHERWISE PROVIDED BY THE COMPANY OR ANY AFFILIATE FROM ANY PERSON
WHO IS THEN A CUSTOMER OR PROSPECTIVE CUSTOMER OF THE COMPANY OR ANY AFFILIATE
OR WHO WAS A CUSTOMER OF THE COMPANY OR ANY AFFILIATE DURING THE PRECEDING FIVE
(5) YEARS; (II) INDUCE OR ATTEMPT TO INDUCE ANY SUCH CUSTOMER TO REDUCE ITS
PURCHASE OF PRODUCTS OR SERVICES FROM THE COMPANY OR ANY AFFILIATE;
(III) SOLICIT ANY EMPLOYEE OR CONTRACTOR OF THE COMPANY OR ANY AFFILIATE TO
LEAVE THE EMPLOY OR SERVICE OF THE COMPANY OR ANY AFFILIATE; (IV) INDUCE ANY
EMPLOYEE OR CONTRACTOR OR FORMER EMPLOYEE OR CONTRACTOR OF THE COMPANY OR ANY
AFFILIATE TO BREACH ANY AGREEMENT WITH THE COMPANY OR ANY AFFILIATE; OR
(V) SOLICIT OR INDUCE ANY VENDOR OF THE COMPANY OR ANY AFFILIATE TO TERMINATE OR
MODIFY ITS RELATIONSHIP WITH THE COMPANY OR ANY AFFILIATE.
(B)
MR. ERVIN
ACKNOWLEDGES THAT THE COMPANY AND ITS AFFILIATES HAVE DEVOTED AND WILL CONTINUE
TO DEVOTE SUBSTANTIAL SUMS OF MONEY AND EFFORT IN DEVELOPING, ACQUIRING AND
MAINTAINING CERTAIN CONFIDENTIAL INFORMATION (AS HEREAFTER DEFINED).
MR. ERVIN
HAS ACQUIRED AND WILL CONTINUE TO ACQUIRE KNOWLEDGE OF SUCH CONFIDENTIAL
INFORMATION, WHICH MR. ERVIN ACKNOWLEDGES IS VALUABLE PROPERTY OF THE COMPANY
AND ITS AFFILIATES.
EXCEPT AS REQUIRED IN THE COURSE OF HIS ENGAGEMENT AS A
CONSULTANT TO THE COMPANY, DURING THE CONSULTING TERM AND AT ALL TIMES
THEREAFTER, MR. ERVIN WILL NOT, DIRECTLY OR INDIRECTLY, DISCLOSE TO OTHERS OR
PERMIT SUCH DISCLOSURE, OR MAKE USE OF OR PERMIT THE USE OF FOR HIS OWN BENEFIT
OR THE BENEFIT OF OTHERS, ANY
5
CONFIDENTIAL INFORMATION, WITHOUT PRIOR WRITTEN CONSENT OF THE COMPANY.
MR. ERVIN WILL RETAIN SUCH CONFIDENTIAL INFORMATION IN TRUST IN A FIDUCIARY
CAPACITY FOR THE SOLE BENEFIT OF THE COMPANY.
"CONFIDENTIAL INFORMATION" AS
USED IN THIS