TO THE STRADDLE PERIOD WILL BE TAKEN INTO ACCOUNT AND ANY CHANGE IN THE
AMOUNT OF SUCH TAXES SHALL BE PRORATED BETWEEN BUYER AND SELLERS AS SET FORTH IN
THE NEXT
37
SENTENCE.
ALL SUCH PRORATIONS SHALL BE ALLOCATED SO THAT ITEMS RELATING TO THE
PORTION OF A STRADDLE PERIOD ENDING ON OR PRIOR TO THE CLOSING DATE SHALL BE
ALLOCATED TO THE SELLERS BASED UPON THE NUMBER OF DAYS IN THE STRADDLE PERIOD ON
OR PRIOR TO THE CLOSING DATE AND ITEMS RELATED TO THE PORTION OF A STRADDLE
PERIOD BEGINNING ON OR AFTER THE CLOSING DATE SHALL BE ALLOCATED TO BUYER BASED
UPON THE NUMBER OF DAYS IN THE STRADDLE PERIOD FROM AND AFTER THE CLOSING DATE.
THE AMOUNT OF ALL SUCH PRORATIONS THAT MUST BE PAID IN ORDER TO CONVEY THE
PURCHASED ASSETS TO BUYER FREE AND CLEAR OF ALL ENCUMBRANCES OTHER THAN
PERMITTED ENCUMBRANCES HAVE BEEN CALCULATED AND SHALL BE PAID ON THE CLOSING
DATE; ALL OTHER PRORATIONS SHALL BE CALCULATED AND PAID AS SOON AS PRACTICABLE
THEREAFTER.
(C)
THE SELLERS AND BUYER SHALL (AND SHALL CAUSE THEIR RESPECTIVE AFFILIATES
TO) COOPERATE FULLY WITH EACH OTHER AND MAKE AVAILABLE OR CAUSE TO BE MADE
AVAILABLE TO EACH OTHER FOR CONSULTATION, INSPECTION AND COPYING (AT SUCH OTHER
PARTY'S EXPENSE) IN A TIMELY FASHION SUCH PERSONNEL, TAX DATA, RELEVANT TAX
RETURNS OR PORTIONS THEREOF AND FILINGS, FILES, BOOKS, RECORDS, DOCUMENTS,
FINANCIAL, TECHNICAL AND OPERATING DATA, COMPUTER RECORDS AND OTHER INFORMATION
AS MAY BE REASONABLY REQUESTED, INCLUDING, WITHOUT LIMITATION, (A) FOR THE
PREPARATION BY SUCH OTHER PARTY OF ANY TAX RETURNS OR (B) IN CONNECTION WITH ANY
TAX AUDIT OR PROCEEDING INCLUDING ONE PARTY (OR AN AFFILIATE THEREOF) TO THE
EXTENT SUCH TAX AUDIT OR PROCEEDING RELATES TO OR ARISES FROM THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
7.3
Noncompetition and Nonsolicitation.
(A)
FOR A PERIOD OF FIVE (5) YEARS FROM THE DATE OF THIS AGREEMENT, NEITHER
SELLER NOR MFFB SHALL, AND MFFB SHALL CAUSE EACH OF ITS AFFILIATES NOT TO,
DIRECTLY OR INDIRECTLY, ON ITS OWN BEHALF, AS AN AGENT OF, ON BEHALF OF OR IN
CONJUNCTION WITH, OR AS A MEMBER, PARTNER OR SHAREHOLDER OF, ANY OTHER FIRM,
CORPORATION OR OTHER ENTITY OR PERSON:
(I)
OWN, OPERATE OR CONTROL, OR PARTICIPATE IN THE OWNERSHIP,
OPERATION OR CONTROL OF, OR HAVE ANY FINANCIAL INTEREST IN, ANY PRETZEL-RELATED
FRANCHISE BUSINESS THAT IS SUBSTANTIALLY SIMILAR TO THE PRETZEL FRANCHISE
SEGMENT OF THE BUSINESSES AND WHICH TARGETS A SUBSTANTIALLY SIMILAR DEMOGRAPHIC
CUSTOMER BASE, IF ANY OR ALL SUCH ACTIVITIES COMPRISE FIVE PERCENT (5%) OR MORE
OF THE BUSINESS' GROSS SALES, PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT
RESTRICT MFFB OR EITHER SELLER OR ANY OF THEIR AFFILIATES FROM OWNING UP TO FIVE
(5%) PERCENT OF THE OUTSTANDING VOTING SECURITIES OF ANY COMPANY WHICH IS LISTED
ON ANY RECOGNIZED PUBLIC STOCK EXCHANGE, TRADED ON NASDAQ OR OVER-THE-COUNTER;
OR
(II)
INDUCE ANY FORMER EMPLOYEE, LICENSEE, INDEPENDENT CONTRACTOR,
MANUFACTURER, SUPPLIER OR FRANCHISEE OF EITHER SELLER WITH RESPECT TO THE
BUSINESSES, TO TERMINATE HIS OR