any
telephone and facsimile numbers and lines of the Business which cannot be
conveyed to Buyers under Section 2.1 to cause those numbers to be forwarded to
the applicable Buyer's location, at such Buyer's expense.
10.11
Ordinary Course. During the period from the date of
this Agreement through the Effective Time, Sellers will continue to operate the
Business in the Ordinary Course, including maintaining the Purchased Assets,
performing all obligations under its contracts, agreements and leases,
maintaining its relationship with customers, patients and vendors, and
compliance with all applicable Laws.
ARTICLE 11
RESTRICTIVE COVENANTS
11.1
Restrictions on Sellers' Competitive Activities.
(A)
SELLERS AGREE THAT, AFTER THE CLOSING,
BUYER WILL BE ENTITLED TO THE GOODWILL AND GOING CONCERN VALUE OF SELLERS'
BUSINESS OF PROVIDING SYNAGIS AND TO BE ENTITLED TO PROTECT AND PRESERVE THE
SAME TO THE MAXIMUM EXTENT PERMITTED BY LAW. SELLERS ALSO ACKNOWLEDGE THAT THEIR
MANAGEMENT CONTRIBUTIONS TO SELLERS' BUSINESS OF PROVIDING SYNAGIS HAVE BEEN
UNIQUELY VALUABLE AND INVOLVE PROPRIETARY INFORMATION THAT WOULD BE
COMPETITIVELY UNFAIR TO USE OR TO MAKE AVAILABLE TO ANY COMPETITOR PROVIDING
SYNAGIS. FOR THESE AND OTHER REASONS AND AS AN INDUCEMENT TO BUYER TO ENTER INTO
THIS AGREEMENT, SELLERS AGREE THAT, FOR A PERIOD OF THREE (3) YEARS AFTER THE
CLOSING DATE (SUCH PERIOD TO BE EXTENDED BY THE DURATION OF ANY PERIOD OF
VIOLATION OF, OR ANY PERIOD OF LITIGATION TO ENFORCE, THE COVENANTS HEREIN),
NEITHER SELLERS NOR ANY OF THEIR AFFILIATES WILL, DIRECTLY OR INDIRECTLY, FOR
THEIR OWN BENEFIT OR AS AGENT FOR ANOTHER, (I) CARRY ON OR PARTICIPATE IN THE
OWNERSHIP, MANAGEMENT OR CONTROL OF ANY OTHER PRESENT OR FUTURE BUSINESS
ENTERPRISE THAT COMPETES IN THE TERRITORY WITH BUYER IN THE ACTIVITIES OF
PROVIDING SYNAGIS IN THE TERRITORY, OR (II) HIRE, ENGAGE, EMPLOY OR INTERFERE
WITH OR ATTEMPT TO HIRE, ENGAGE, EMPLOY OR INTERFERE WITH ANY EMPLOYEES,
REPRESENTATIVES OR AGENTS OF BUYERS OR ANY AFFILIATE OF BUYERS ENGAGED IN
PROVIDING SYNAGIS IN THE TERRITORY.
(B)
NOTHING CONTAINED HEREIN SHALL LIMIT: (I)
THE RIGHT OF ANY SELLER OR ITS AFFILIATES, AS AN INVESTOR, TO HOLD AND MAKE
INVESTMENTS IN SECURITIES OF ANY CORPORATION OR LIMITED PARTNERSHIP THAT IS
REGISTERED ON A NATIONAL SECURITIES EXCHANGE OR ADMITTED TO TRADING PRIVILEGES
THEREON OR ACTIVELY TRADED IN A GENERALLY RECOGNIZED OVER THE COUNTER MARKET,
PROVIDED SUCH SELLER'S AND ITS AFFILIATES' EQUITY INTEREST THEREIN (IN THE
AGGREGATE) DOES NOT EXCEED 3% OF THE OUTSTANDING SHARES OR INTERESTS IN SUCH
CORPORATION OR PARTNERSHIP THAT IS A COMPETING
19
BUSINESS; (II) THE RIGHT OF SELLERS AND THEIR AFFILIATES TO BE ACQUIRED BY,
THROUGH MERGER, CONSOLIDATION, MEMBER SUBSTITUTION OR OTHERWISE, AN EXISTING (AS
OF THE CLOSING DATE) ENTITY WHICH ALREADY COMPETES OR THAT OWNS OR CONTROLS AN
ENTITY WHICH ALREADY COMPETES WITH BUYER IN THE ACTIVITIES OF PROVIDING SYNAGIS
IN THE TERRITORY AT THE TIME OF SUCH ACQUISITION; (III) THE RIGHT OF SELLERS AND
THEIR AFFILIATES TO OPERATE THEIR INFUSION BUSINESS AND INJECTABLE DRUG BUSINESS
WHICH IS INCIDENTAL TO THEIR INFUSION BUSINESS (OTHER THAN SYNAGIS) IN THE
TERRITORY;