identities, customer profiles,
customer preferences, partner or investor identities, employees, suppliers,
project designs, project methods, advertising programs, advertising techniques,
target markets, servicing methods, equipment, programs, strategies and
information, market analyses, profit margins, pricing information, cost
structure, past, current or future marketing strategies, or any other
proprietary information used by the Company or its affiliates; provided however,
that
5
Confidential Information shall not include any information which is in the
public domain or becomes known in the industry through no wrongful act on the
part of Executive.
Executive acknowledges that the Confidential Information is
vital, sensitive, confidential and proprietary to the Company and that he is
under a contractual and common law duty to not disclose the Confidential
Information to any third party at any time.
Executive acknowledges and agrees
that his non-disclosure obligation applies to all Confidential Information of
Prophet and the Company, no matter when he obtained knowledge of or access to
such Confidential Information.
7.
NON-COMPETITION.
IN
CONSIDERATION OF THE SUBSTANTIAL PURCHASE PRICE BEING PAID BY THE COMPANY FOR
PROPHET, PROPHET'S BUSINESS AND CUSTOMER GOODWILL, AND THE SUBSTANTIAL
CONSIDERATION BEING PAID TO EXECUTIVE FOR HIS SHARES OF COMMON STOCK, AND IN
ORDER TO PROTECT THE COMPANY'S LEGITIMATE BUSINESS INTERESTS IN ITS CONFIDENTIAL
INFORMATION (AS DEFINED HEREIN) (INCLUDING TRADE SECRETS) AND THE VALUE AND
GOODWILL OF THE COMPANY'S OR PROPHET'S BUSINESS, AND TO REDUCE THE LIKELIHOOD OF
IRREPARABLE DAMAGE WHICH WOULD OCCUR IN THE EVENT SUCH INFORMATION IS PROVIDED
TO OR USED BY A COMPETITOR OF THE COMPANY OR PROPHET, EXECUTIVE AGREES FOR SO
LONG AS HE IS AN EMPLOYEE OF THE COMPANY OR AN AFFILIATE THEREOF, AND FOR AN
ADDITIONAL PERIOD THEREAFTER UNTIL THE LATER OF
TWO YEARS FROM THE CLOSING OF
THE SPA OR ONE YEAR FROM THE END OF THE EMPLOYMENT PERIOD (THE "NONCOMPETITION
TERM"), NOT TO, DIRECTLY OR INDIRECTLY, EITHER THROUGH ANY FORM OF OWNERSHIP OR
AS AN INDIVIDUAL, DIRECTOR, OFFICER, PRINCIPAL, AGENT, EMPLOYEE, EMPLOYER,
ADVISER, CONSULTANT, SHAREHOLDER (OTHER THAN PASSIVE INVESTMENTS IN PUBLIC
COMPANIES BY EXECUTIVE RESULTING IN LESS THAN 2% OWNERSHIP OF EACH SUCH
COMPANY), PARTNER, OR IN ANY OTHER INDIVIDUAL OR REPRESENTATIVE CAPACITY
WHATSOEVER, EITHER FOR HIS OWN BENEFIT OR FOR THE BENEFIT OF ANY PERSON OR
ENTITY, WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY (WHICH CONSENT MAY BE
WITHHELD IN ITS REASONABLE DISCRETION), ENGAGE IN ANY MANNER IN THE BUSINESS, AS
DEFINED BELOW, IN THE UNITED STATES OF AMERICA OR ANY OTHER LOCATION WHERE
EITHER THE COMPANY OR PROPHET HAS CONDUCTED OR CURRENTLY IS CONDUCTING BUSINESS
AS OF THE DATE OF THIS AGREEMENT OR CONDUCTS BUSINESS DURING THE EMPLOYMENT
PERIOD OR THE NONCOMPETITION TERM.
FOR PURPOSES OF THIS AGREEMENT, "BUSINESS"
MEANS (I) ONLINE INVESTOR ANALYTICAL TOOLS AND (II) INVESTOR EDUCATION
INDUSTRIES (WHETHER OR NOT ONLINE).
ANY SUCH ACTS DURING THE EMPLOYMENT PERIOD
AND/OR THE NONCOMPETITION TERM SHALL BE CONSIDERED BREACHES AND VIOLATIONS OF
THIS AGREEMENT.
EXECUTIVE HEREBY ACKNOWLEDGES THAT THE GEOGRAPHIC BOUNDARIES, SCOPE OF
PROHIBITED ACTIVITIES AND THE TIME DURATION OF THE PROVISIONS OF THIS SECTION 7
ARE REASONABLE