AWARD OF MONEY DAMAGES WOULD BE INADEQUATE FOR ANY BREACH OF THIS SECTION
8.11(A), INCLUDING, WITHOUT LIMITATION, A FAILURE TO COMPLY WITH ANY OF THE
PROVISIONS OF SCHEDULE 8.11(A) HEREOF, AND SUCH BREACH WOULD CAUSE THE
STOCKHOLDER IRREPARABLE HARM, PARENT AGREES THAT, IN THE EVENT OF A BREACH OF
THIS SECTION 8.11(A) INCLUDING, WITHOUT LIMITATION, FAILURE TO COMPLY WITH THE
PROVISIONS OF SCHEDULE 8.11(A) HEREOF, THE STOCKHOLDER WILL BE ENTITLED, WITHOUT
THE REQUIREMENT OF POSTING A BOND OR OTHER SECURITY, TO EQUITABLE RELIEF,
INCLUDING, WITHOUT LIMITATION, SPECIFIC PERFORMANCE, PROVIDED THAT SUCH REMEDIES
WILL NOT BE THE EXCLUSIVE REMEDY FOR ANY BREACH BUT WILL BE IN ADDITION TO ANY
OTHER REMEDIES AVAILABLE UNDER THIS AGREEMENT.
(B)
FROM AND AFTER THE CLOSING UNTIL THE EXPIRATION OR TERMINATION OF
THE ADDITIONAL ESCROW DEPOSIT PERIOD, PARENT SHALL PAY AND DISCHARGE ALL OF ITS
MATERIAL OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS AS
THEY BECOME DUE AND PAYABLE BEFORE THE SAME SHALL BECOME DELINQUENT AND SHALL
CAUSE THE SURVIVING CORPORATION TO PAY THE COMPANY'S LIABILITIES, PAYABLES OR
OTHER INDEBTEDNESS IN ACCORDANCE WITH THE COMPANY'S USUAL AND CUSTOMARY
PRACTICES AND PARENT SHALL NOT (AND SHALL CAUSE ITS SUBSIDIARIES NOT TO) TAKE
ANY OF THE ACTIONS SET FORTH ON EXHIBIT B.
8.12
ADDITIONAL POST-CLOSING COVENANTS.
FROM AND AFTER THE CLOSING,
PARENT SHALL NOT (AND SHALL CAUSE THE SURVIVING CORPORATION NOT TO) (I) ENTER
INTO, ENGAGE IN OR CONSUMMATE A SALE OF THE COMPANY, EXCEPT AS PROVIDED IN
SECTION 3.4(D) OR (II) CONDUCT, OR PERMIT ANY PERSON TO CONDUCT, ANY INVASIVE
TESTING, PHASE II SAMPLING, INVESTIGATION OR EVALUATION OF THE GROUNDWATER, SOIL
OR OTHER ENVIRONMENTAL MEDIA AT OR RELATING TO THE REAL PROPERTY FOLLOWING THE
CLOSING, UNLESS AND TO THE EXTENT SUCH SAMPLING, INVESTIGATION OR EVALUATION IS
REQUIRED PURSUANT TO APPLICABLE ENVIRONMENTAL LAW.
60
8.13
COVENANT NOT TO COMPETE.
(A)
IN CONSIDERATION OF THE PROMISES
CONTAINED HEREIN AND THE MERGER CONSIDERATION TO BE RECEIVED HEREUNDER, THE
STOCKHOLDER SHALL NOT, DURING THE NON-COMPETITION PERIOD (AS DEFINED HEREIN):
(I) DIRECTLY OR INDIRECTLY ENGAGE, WHETHER OR NOT SUCH ENGAGEMENT SHALL BE AS A
MEMBER, PARTNER, STOCKHOLDER, AFFILIATE OR OTHER PARTICIPANT, IN ANY COMPETITIVE
BUSINESS (AS DEFINED HEREIN), OR REPRESENT IN ANY WAY ANY COMPETITIVE BUSINESS,
WHETHER OR NOT SUCH ENGAGEMENT OR REPRESENTATION SHALL BE FOR PROFIT,
(II) KNOWINGLY OR INTENTIONALLY INTERFERE WITH, DISRUPT OR ATTEMPT TO DISRUPT
THE RELATIONSHIP, CONTRACTUAL OR OTHERWISE, BETWEEN THE SURVIVING CORPORATION
AND ANY CUSTOMER, SUPPLIER, EMPLOYEE OR CONSULTANT OF THE SURVIVING CORPORATION
WITH RESPECT TO THE BUSINESS, (III) INDUCE ANY EMPLOYEE OF THE SURVIVING
CORPORATION TO TERMINATE HIS OR HER EMPLOYMENT WITH THE SURVIVING CORPORATION OR
TO ENGAGE IN ANY COMPETITIVE BUSINESS IN ANY MANNER DESCRIBED IN THE FOREGOING
CLAUSE (I), OR (IV) AFFIRMATIVELY ASSIST ANY OTHER PERSON OR ENTITY TO ENGAGE IN
ANY COMPETITIVE BUSINESS IN ANY MANNER DESCRIBED IN THE FOREGOING CLAUSE (I).
NOTWITHSTANDING THE PROVISIONS OF THIS SECTION 8.13 OR ANY OTHER PROVISION OF
THIS AGREEMENT, NOTHING CONTAINED HEREIN SHALL BE DEEMED TO PROHIBIT, LIMIT OR
OTHERWISE RESTRICT THE STOCKHOLDER