FOR WHICH THE OTHER MAY HAVE A
LIABILITY UNDER THIS SECTION 8.13 OR AS A MATTER OF LAW; AND (V) FURNISH THE
OTHER WITH COPIES OF ALL CORRESPONDENCE RECEIVED FROM ANY GOVERNMENTAL OR
REGULATORY AUTHORITY IN CONNECTION WITH ANY TAX AUDIT OR INFORMATION REQUEST
WITH RESPECT TO ANY SUCH TAXABLE PERIOD.
(D)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE
OBLIGATIONS OF THE PARTIES SET FORTH IN THIS SECTION 8.13 SHALL BE UNCONDITIONAL
AND ABSOLUTE AND SHALL REMAIN IN EFFECT WITHOUT LIMITATION AS TO TIME.
**Portions of the Exhibit have been omitted and have been filed separately
pursuant to an application for confidential treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act
of 1934, as amended.
37
SECTION 8.14
COVENANT NOT TO COMPETE OR SOLICIT BUSINESS.
(A)
IN FURTHERANCE OF THE SALE OF THE PURCHASED ASSETS AND THE
BUSINESS TO BUYER HEREUNDER BY VIRTUE OF THE TRANSACTIONS CONTEMPLATED HEREBY
AND MORE EFFECTIVELY TO PROTECT THE VALUE AND GOODWILL OF THE PURCHASED ASSETS
AND THE BUSINESS SO SOLD, SELLER COVENANTS AND AGREES THAT, FOR A PERIOD ENDING
ON THE THIRD ANNIVERSARY OF THE CLOSING DATE, NEITHER SELLER NOR ANY OF ITS
AFFILIATES WILL:
(I)
DIRECTLY OR INDIRECTLY (WHETHER AS PRINCIPAL, AGENT, INDEPENDENT
CONTRACTOR, PARTNER OR OTHERWISE) OWN, MANAGE, OPERATE, CONTROL, PARTICIPATE IN,
PERFORM SERVICES FOR, SELL MATERIALS TO, OR OTHERWISE CARRY ON, A BUSINESS
SIMILAR TO OR COMPETITIVE WITH THE BUSINESS AS CONDUCTED AT THE CLOSING DATE
(INCLUDING DEVELOPING, MARKETING, LICENSING, SELLING OR DISTRIBUTING ANY
EXTENDED RELEASE CYCLOBENZAPRINE PRODUCT) ANYWHERE IN THE TERRITORY (IT BEING
UNDERSTOOD BY THE PARTIES HERETO THAT THE BUSINESS IS NOT LIMITED TO ANY
PARTICULAR REGION OF THE TERRITORY AND THAT THE BUSINESS MAY BE ENGAGED IN
EFFECTIVELY FROM ANY LOCATION IN THE TERRITORY); OR
(II)
INDUCE OR ATTEMPT TO PERSUADE ANY DISTRIBUTOR, AGENT, SUPPLIER OR
CUSTOMER OF THE BUSINESS TO TERMINATE SUCH DISTRIBUTOR, AGENCY OR BUSINESS
RELATIONSHIP IN ORDER TO ENTER INTO ANY SUCH RELATIONSHIP ON BEHALF OF ANY OTHER
BUSINESS ORGANIZATION IN COMPETITION WITH THE BUSINESS;
PROVIDED, HOWEVER, THAT NOTHING SET FORTH IN THIS SECTION 8.14 SHALL PROHIBIT
SELLER OR ITS AFFILIATES FROM OWNING NOT IN EXCESS OF 5% IN THE AGGREGATE OF ANY
CLASS OF CAPITAL STOCK OF ANY CORPORATION IF SUCH STOCK IS PUBLICLY TRADED AND
LISTED ON ANY NATIONAL OR REGIONAL STOCK EXCHANGE.
SELLER ALSO COVENANTS AND
AGREES THAT FROM AND AFTER THE CLOSING DATE IT WILL NOT, NOR WILL IT PERMIT ANY
OF ITS AFFILIATES TO, DIVULGE OR MAKE USE OF ANY TRADE SECRETS OR OTHER
CONFIDENTIAL INFORMATION OF THE BUSINESS OTHER THAN TO DISCLOSE SUCH SECRETS AND
INFORMATION TO BUYER OR ITS AFFILIATES.
(B)
IF SELLER OR ANY AFFILIATE OF SELLER VIOLATES ANY OF ITS
OBLIGATIONS UNDER THIS SECTION 8.14, BUYER MAY PROCEED AGAINST IT IN LAW OR IN
EQUITY FOR SUCH DAMAGES OR OTHER RELIEF AS A COURT MAY DEEM APPROPRIATE.
SELLER
ACKNOWLEDGES THAT A VIOLATION OF THIS SECTION 8.14 MAY CAUSE BUYER IRREPARABLE
HARM WHICH MAY NOT