SELLER IS ACQUIRED AFTER THE
CLOSING DATE BY A PERSON (THE "ACQUIROR") THE BUSINESS ACTIVITIES OF ACQUIROR ON
THE DATE ACQUIROR ACQUIRES SELLER (INCLUDING ANY ACTIVITIES THAT COMPETE WITH
THE BUSINESS AS IT EXISTS ON THE CLOSING DATE) SHALL NOT BE DEEMED A VIOLATION
OF THE PROVISIONS OF THIS SECTION 5.04 NOTWITHSTANDING THE FACT THAT THE
COMBINED ENTITY OF ACQUIROR AND SELLER WILL CONTINUE TO ENGAGE IN SUCH BUSINESS
ACTIVITIES.
(C)
IF ANY PROVISION CONTAINED IN THIS SECTION SHALL FOR ANY REASON BE
HELD INVALID, ILLEGAL OR UNENFORCEABLE IN ANY RESPECT, SUCH INVALIDITY,
ILLEGALITY OR UNENFORCEABILITY SHALL NOT AFFECT ANY OTHER PROVISIONS OF THIS
SECTION, BUT THIS SECTION SHALL BE CONSTRUED AS IF SUCH INVALID, ILLEGAL OR
UNENFORCEABLE PROVISION HAD NEVER BEEN CONTAINED HEREIN. IT IS THE INTENTION OF
THE PARTIES THAT IF ANY OF THE RESTRICTIONS OR COVENANTS CONTAINED HEREIN IS
HELD TO COVER A GEOGRAPHIC AREA OR TO BE FOR A LENGTH OF TIME WHICH IS NOT
PERMITTED BY APPLICABLE LAW, OR IN ANY WAY CONSTRUED TO BE TOO BROAD OR TO ANY
EXTENT INVALID, SUCH PROVISION SHALL NOT BE CONSTRUED TO BE NULL, VOID AND OF NO
EFFECT, BUT TO THE EXTENT SUCH PROVISION WOULD BE VALID OR ENFORCEABLE UNDER
APPLICABLE LAW, A COURT OF COMPETENT JURISDICTION SHALL CONSTRUE AND INTERPRET
OR REFORM THIS SECTION TO PROVIDE FOR A COVENANT HAVING THE MAXIMUM ENFORCEABLE
GEOGRAPHIC AREA, TIME PERIOD AND OTHER PROVISIONS (NOT GREATER THAN THOSE
CONTAINED HEREIN) AS SHALL BE VALID AND ENFORCEABLE UNDER SUCH APPLICABLE LAW.
SELLER ACKNOWLEDGES THAT BUYER WOULD BE IRREPARABLY HARMED BY ANY BREACH OF THIS
SECTION AND THAT THERE WOULD BE NO ADEQUATE REMEDY AT LAW OR IN DAMAGES TO
COMPENSATE BUYER FOR ANY SUCH BREACH. SELLER AGREES THAT BUYER SHALL BE ENTITLED
TO INJUNCTIVE RELIEF REQUIRING SPECIFIC PERFORMANCE BY SELLER OF THIS SECTION,
AND SELLER CONSENTS TO THE ENTRY THEREOF.
5.05
TRADEMARKS; TRADENAMES. AS SOON AS PRACTICABLE AFTER THE CLOSING
DATE, SELLER SHALL ELIMINATE THE USE OF ALL OF THE TRADEMARKS, TRADENAMES,
SERVICE MARKS AND SERVICE NAMES USED IN THE BUSINESS, IN ANY OF THEIR FORMS OR
SPELLINGS, ON ALL ADVERTISING, STATIONERY, BUSINESS CARDS, CHECKS, PURCHASE
ORDERS AND ACKNOWLEDGMENTS, CUSTOMER AGREEMENTS AND OTHER CONTRACTS AND BUSINESS
DOCUMENTS. SELLER SHALL GRANT BUYER THE RIGHT TO USE THE CLEARSTORY NAME, AS
DESCRIBED IN THE TRADEMARK LICENSE AGREEMENT AT EXHIBIT B.
5.06
INFORMATION STATEMENT.
(A)
THE SELLER HAS PREPARED AN INFORMATION STATEMENT (THE "INFORMATION
STATEMENT") IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY IN A FORM
REASONABLY ACCEPTABLE TO BUYER. THE SELLER SHALL FILE THE INFORMATION STATEMENT
WITH THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") AS A PRELIMINARY
INFORMATION STATEMENT WITHIN ONE BUSINESS DAY AFTER THE DATE HEREOF IN
ACCORDANCE WITH RULE 14C-2 OF THE SECURITIES EXCHANGE ACT OF 1934. THE
INFORMATION STATEMENT SHALL INCLUDE THE RECOMMENDATION OF THE SELLER'S BOARD OF
DIRECTORS IN FAVOR OF APPROVAL AND ADOPTION OF THIS ASSET PURCHASE AGREEMENT.
26
(B)
SELLER SHALL NOTIFY BUYER PROMPTLY AFTER THE RECEIPT OF ANY
COMMENTS OF THE COMMISSION ON, OR OF ANY