THE COMPANY'S INDUSTRY OTHER THAN AS A RESULT OF EXECUTIVE'S PROHIBITED
DISCLOSURE; (II) INFORMATION WHICH COMES TO EXECUTIVE FROM A BONA FIDE THIRD
PARTY SOURCE SO LONG AS SUCH SOURCE WAS NOT, TO EXECUTIVE'S KNOWLEDGE,
PROHIBITED FROM PROVIDING SUCH INFORMATION TO EXECUTIVE BY ANY CONTRACTUAL,
LEGAL, FIDUCIARY OR OTHER OBLIGATION; AND (III) INFORMATION WHICH WAS KNOWN TO
EXECUTIVE BEFORE SUCH INFORMATION WAS OBTAINED FROM THE COMPANY.
THE FOREGOING
PROVISION SHALL NOT BE DEEMED TO SUPERSEDE OR LIMIT ANY OTHER AGREEMENT BETWEEN
EXECUTIVE AND THE COMPANY RELATING TO CONFIDENTIAL INFORMATION OF THE COMPANY,
BUT SHALL BE DEEMED TO BE IN ADDITION TO THE PROVISIONS THEREOF.
TO THE EXTENT
THERE ARISES ANY IRRECONCILABLE CONFLICT BETWEEN THIS AGREEMENT AND ANY SUCH
OTHER AGREEMENT, THE PROVISIONS OF THE OTHER AGREEMENT SHALL CONTROL.
5
6.
NON-COMPETE; NON-SOLICITATION.
(A)
EXECUTIVE ACKNOWLEDGES THAT IN THE COURSE OF HIS EMPLOYMENT WITH
THE COMPANY HE WILL BECOME FAMILIAR WITH THE COMPANY'S TRADE SECRETS AND WITH
OTHER CONFIDENTIAL INFORMATION CONCERNING THE COMPANY AND THAT HIS SERVICES WILL
BE OF SPECIAL, UNIQUE AND EXTRAORDINARY VALUE TO THE COMPANY.
THEREFORE,
EXECUTIVE AGREES THAT:
(I) DURING THE EMPLOYMENT PERIOD AND FOR A PERIOD OF
TWELVE (12) MONTHS THEREAFTER (THE "NONCOMPETE PERIOD"), HE SHALL NOT, DIRECTLY
OR INDIRECTLY:
(I) ENGAGE IN ANY COMPETITIVE BUSINESS (AS DEFINED BELOW); (II)
RENDER ANY SERVICES TO ANY COMPETITIVE BUSINESS; OR (III) ACQUIRE A FINANCIAL
INTEREST IN ANY COMPETITIVE BUSINESS.
FOR PURPOSES OF THIS AGREEMENT, THE
PHRASE "ENGAGE IN" SHALL INCLUDE ANY DIRECT OR INDIRECT OWNERSHIP OR PROFIT
PARTICIPATION INTEREST IN SUCH ENTERPRISE, WHETHER AS AN OWNER, STOCKHOLDER,
MEMBER, PARTNER, JOINT VENTURER OF OR OTHERWISE, AND SHALL INCLUDE ANY DIRECT OR
INDIRECT PARTICIPATION IN SUCH ENTERPRISE AS AN EMPLOYEE, CONSULTANT, DIRECTOR,
OFFICER, LICENSOR OF TECHNOLOGY OR OTHERWISE.
"COMPETITIVE BUSINESS" MEANS A
BUSINESS THAT IS ENGAGED, ITSELF OR THROUGH AN AFFILIATE, IN THE PRODUCTION,
SALE, PROVISION OR DISTRIBUTION OF PRODUCTS OR SERVICES, OR RESEARCH OR
DEVELOPMENT INTENDED TO CREATE PRODUCTS OR SERVICES, COMPETITIVE WITH THE
COMPANY'S:
(I)
HIGH-SHEAR PROCESSING EQUIPMENT USED TO: (A) PRODUCE SUB-MICRON
AND NANOSCALE LIQUID AND SOLID PARTICLES IN EMULSIONS AND DISPERSIONS FOR THE
BIOTECH, PHARMACEUTICAL, CHEMICAL/COATINGS, PERSONAL CARE/COSMETICS AND FOOD
INDUSTRIES, AND (B) PERFORM CELL DISRUPTION (LYSIS), OR (C) CREATE LIPOSOMAL
ENCAPSULATION OF A VARIETY OF PRODUCTS;
(II)
CHEMICAL REACTOR EQUIPMENT FOR: (A) THE CONTINUOUS PRODUCTION OF
NANOSCALE PRODUCTS THROUGH CHEMICAL REACTION, OR (B) CRYSTALLIZATION PROCESSES
TO PRODUCE DRUG AND OTHER NANOSUSPENSIONS FOR THE PHARMACEUTICAL AND
BIOTECHNOLOGY INDUSTRIES; OR
(III)
FUTURE PRODUCTS, EQUIPMENT OR SERVICES DEVELOPED;
AS SUCH PRODUCTS, EQUIPMENT OR SERVICES EXIST OR ARE CONTEMPLATED DURING
EXECUTIVE'S EMPLOYMENT HEREUNDER.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND SOLELY FOR PURPOSES OF
PROVIDING EXAMPLES, CERTAIN OF THE COMPANIES THAT THE PARTIES AGREE WOULD
CONSTITUTE COMPETITIVE BUSINESSES ARE LISTED IN EXHIBIT D ATTACHED HERETO.
NOTHING HEREIN SHALL PROHIBIT EXECUTIVE FROM BEING A PASSIVE OWNER OF NOT MORE
THAN THREE PERCENT (3%) OF THE OUTSTANDING STOCK OF ANY CLASS OF AN ENTITY WHICH
IS PUBLICLY TRADED, SO LONG AS EXECUTIVE HAS NO ACTIVE PARTICIPATION IN ANY
ASPECT