Confidential treatment requested for redacted portion; redacted portion
has been filed separately with the Securities and Exchange Commission.
34
(II) ATTEMPT TO DO ANY OF THE FOREGOING; PROVIDED, HOWEVER, THAT NOTHING HEREIN
SHALL PREVENT ANY BUYER OR ANY OF ITS AFFILIATES FROM (A) ENGAGING IN GENERAL
MEDIA ADVERTISING OR SOLICITATION THAT MAY BE TARGETED TO A PARTICULAR
GEOGRAPHIC OR TECHNICAL AREA BUT THAT IS NOT TARGETED TOWARD TRANSFERRING
EMPLOYEES OR (B) WITHIN 60 DAYS OF CLOSING, OFFERING EMPLOYMENT TO THOSE
BUSINESS EMPLOYEES SET FORTH IN SCHEDULE 5.10(B) OF THE SELLER DISCLOSURE
SCHEDULES AND, IF AND UPON SUCH PERSON'S ACCEPTANCE, EMPLOYING SUCH PERSON(S).
(C)
EACH OF THE SELLERS ACKNOWLEDGES AND AGREES
THAT ITS COMPLIANCE WITH THE COVENANTS CONTAINED IN THIS SECTION 5.10 HEREOF IS
NECESSARY TO PROTECT THE VALUE OF THE ONGOING BUSINESS AND ASSETS (INCLUDING THE
GOODWILL) AND OTHER PROPRIETARY INTERESTS BEING ACQUIRED PURSUANT TO THIS
AGREEMENT.
EACH OF THE SELLERS FURTHER ACKNOWLEDGES AND AGREES THAT A BREACH OF
THE COVENANTS IN THIS SECTION 5.10 WILL RESULT IN IRREPARABLE AND CONTINUING
DAMAGE TO THE BUYERS FOR WHICH THERE WILL BE NO ADEQUATE REMEDY AT LAW, AND
AGREES THAT IN THE EVENT OF ANY BREACH OR THREATENED BREACH OF SUCH COVENANTS,
THE BUYERS SHALL BE ENTITLED TO INTERIM RELIEF IN THE FORM OF A TEMPORARY
RESTRAINING ORDER, PRELIMINARY INJUNCTION OR INJUNCTION AND TO HAVE SUCH
COVENANTS SPECIFICALLY ENFORCED BY ANY COURT HAVING EQUITY JURISDICTION IN
ADDITION TO SUCH OTHER AND FURTHER RELIEF AS MAY BE PROPER.
(D)
SUBJECT TO SECTION 5.10(A)(I), IT IS THE
INTENTION OF THE PARTIES HERETO THAT THE SCOPE AND EFFECT OF THE COVENANTS
CONTAINED IN THIS SECTION 5.10 SHALL BE AS BROAD IN TIME AND GEOGRAPHY, AND IN
ALL OTHER RESPECTS, AS IS PERMITTED PURSUANT TO APPLICABLE LAW.
THE PROVISIONS
OF THIS SECTION 5.10 ARE SEVERABLE AND INDEPENDENT AND SHALL BE INTERPRETED AND
APPLIED CONSISTENTLY WITH REQUIREMENTS OF REASONABLENESS AND EQUITY.
IF ANY
PROVISION OF THIS SECTION 5.10 SHALL BE HELD TO RESTRICT COMPETITION TO A
GREATER DEGREE THAN IS PERMITTED BY APPLICABLE LAW OR TO BE INVALID OR OTHERWISE
UNENFORCEABLE, IN WHOLE OR IN PART, SUCH TERM OR PROVISION SHALL BE ADJUSTED
RATHER THAN VOIDED, AND THE REMAINDER OF THE PROVISIONS, OR ENFORCEABLE PARTS
THEREOF, SHALL NOT BE AFFECTED THEREBY, AND SHALL REMAIN IN FULL FORCE AND
EFFECT TO THE MAXIMUM EXTENT POSSIBLE.
Section 5.11
Public Announcements.
The Sellers and the
Buyers shall consult with each other before issuing, and provide each other the
opportunity to review and comment upon, any press release or other public
statement with respect to the transactions contemplated hereby, and shall not
issue any such press release or make any such public statement prior to such
consultation, except as may be required by applicable Law or any securities
exchange regulation, in which case the party proposing to issue such publication
or press release shall make reasonable efforts to consult in good faith with the
other party or parties before issuing any such publication or press release and
shall provide a