IRREPARABLY DAMAGE PURCHASER, AND THAT
ONCE SUCH A BREACH HAS OCCURRED, THERE MAY BE NO ACCURATE WAY OF DETERMINING THE
AMOUNT OF DAMAGE OR LOSS SUFFERED BY PURCHASER.
SELLER AND MARK THEREFORE AGREE
THAT, NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, THE
TERMS OF THIS SECTION 7.8 MAY BE ENFORCED THROUGH PRELIMINARY OR FINAL
INJUNCTIVE RELIEF OR OTHER EQUITABLE REMEDY WITHOUT HAVING TO PROVE IRREPARABLE
INJURY AND WITHOUT THE NECESSITY FOR A BOND OR OTHER SECURITY.
(E)
SELLER AND MARK ACKNOWLEDGE THAT THE TYPE
AND PERIODS OF RESTRICTION IMPOSED IN THIS SECTION 7.8 ARE FAIR AND REASONABLE
AND ARE REASONABLY REQUIRED FOR THE PROTECTION OF TRAFFIX AND PURCHASER AND THE
GOODWILL, BUSINESS AND ASSETS OF TRAFFIX AND PURCHASER.
IF ANY OF THE
PROVISIONS OF THIS SECTION 7.8 RELATING TO TIME, GEOGRAPHICAL AREA, SERVICES,
PRODUCTS, DEVICES AND/OR INFORMATION ARE DEEMED BY A COURT OF COMPETENT
JURISDICTION TO BE OVERLY BROAD OR FOR ANY OTHER REASON UNENFORCEABLE, THE
PARTIES AGREE THAT SUCH RESTRICTIONS HEREIN AS TO TIME, GEOGRAPHICAL AREA,
SERVICES, PRODUCTS, DEVICES AND/OR INFORMATION SHALL BE REDUCED TO SUCH TIME,
GEOGRAPHICAL AREA, SERVICES, PRODUCTS, DEVICES AND/OR INFORMATION AS SUCH COURT
SHALL HOLD TO BE REASONABLE AND LEGALLY ENFORCEABLE.
IN ADDITION, IF ANY COURT
DETERMINES THAT ANY OF THE RESTRICTIVE COVENANTS CONTAINED IN THIS SECTION 7.8,
OR ANY PART THEREOF, IS INVALID OR UNENFORCEABLE, THE REMAINDER OF THE
RESTRICTIVE COVENANTS SHALL NOT THEREBY BE AFFECTED AND SHALL BE GIVEN FULL
EFFECT WITHOUT REGARD TO THE INVALID PORTIONS.
7.9
Key Employee Agreements.
At or promptly after the Closing, NEWCO shall enter into employment agreements
with Philip Colacioppo and Joseph Frevola (collectively, the "Key Employees")
pursuant to the employment agreements annexed hereto as Schedule 7.9 (the "Key
Employee Agreements").
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7.10
Payment of Excluded Liabilities.
Seller's Shareholder and Seller shall pay, perform and discharge when due all of
the Excluded Liabilities, and Seller's Shareholder shall take all action
necessary or convenient to ensure that Seller fulfills its obligations under
this Section 7.10.
7.11
Purchase Price Allocation.
The parties shall work together in good faith to determine promptly after
Closing the allocation of the Purchase Price (such allocation, the "Purchase
Price Allocation") among the Acquired Assets.
The Purchase Price Allocation
shall be made in a manner consistent with Section 1060 of the Code.
Each of the
parties hereto shall not, and shall not permit any of its Affiliates to, take a
position (except as required pursuant to any Order) on any Tax Return or before
any Governmental Authority charged with the collection of any Tax, or in any
judicial proceeding, that is in any way inconsistent with the Purchase Price
Allocation determined in accordance with this Section 7.11.
Any state or local
sales tax or other transfer tax due with respect to the transfer of the Acquired
Assets conveyed to the Purchaser shall be paid by Seller.
8.
SURVIVAL OF REPRESENTATIONS;
INDEMNITIES.
8.1
Survival of Representations and Warranties
of Seller and the Seller's Shareholders.
The representations and warranties and covenants of Seller and