NOT
CONTACT CLIENTS, CHARTERERS, CUSTOMERS OR SUPPLIERS OF SIRIUS WITHOUT THE PRIOR
CONSENT OF WAYNE SUNDBERG (WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD OR
DELAYED).
SIRIUS AND THE SELLER PARTIES WILL FURNISH TO BUYER SUCH FINANCIAL
AND OPERATING DATA AND OTHER INFORMATION AS BUYER MAY REASONABLY REQUEST;
PROVIDED, HOWEVER, THAT THE CONFIDENTIALITY OF ANY DATA OR INFORMATION SO
ACQUIRED SHALL BE MAINTAINED BY BUYER AND ITS REPRESENTATIVES IN ACCORDANCE WITH
THE TERMS OF PARAGRAPH 10 OF THE LETTER OF INTENT DATED JANUARY 25, 2007 BETWEEN
K-SEA OPERATING PARTNERSHIP L.P. AND THE SELLER PARTIES.
SECTION 6.4
TERMINATION OF GUARANTEES AND SETTLEMENT OF INTERCOMPANY AMOUNTS.
THE SELLER PARTIES SHALL CAUSE ANY INTERCOMPANY TRANSACTIONS DESCRIBED IN
SCHEDULE 4.12(F) TO BE TERMINATED OR SETTLED AT OR PRIOR TO THE CLOSING AT NO
COST TO SIRIUS OR TO BUYER.
SECTION 6.5
COVENANT AGAINST COMPETITION.
(A)
AS AN ESSENTIAL CONSIDERATION FOR THE OBLIGATIONS OF BUYER AND THE
PARTNERSHIP UNDER THIS AGREEMENT, EACH SELLER PARTY HEREBY AGREES AND COVENANTS
THAT, EXCEPT ON BEHALF OF THE BUYER OR ITS AFFILIATES, FOR A PERIOD OF THREE
YEARS FOLLOWING THE CLOSING DATE:
(I)
NEITHER THE SELLER PARTY NOR ANY AFFILIATE THEREOF SHALL, FOR
WHATEVER REASON AND WITH OR WITHOUT CAUSE, EITHER INDIVIDUALLY OR IN PARTNERSHIP
OR JOINTLY OR IN CONJUNCTION WITH ANY PERSON OR PERSONS AS PRINCIPAL, AGENT,
EMPLOYEE, SHAREHOLDER (OTHER THAN HOLDING COMMON UNITS OR SHARES OF OTHER
COMPANIES LISTED ON A UNITED STATES STOCK EXCHANGE OR AUTOMATED QUOTATION SYSTEM
THAT DO NOT EXCEED ONE (1%) PERCENT OF THE OUTSTANDING SHARES SO LISTED), OWNER,
INVESTOR, PARTNER OR IN ANY OTHER MANNER WHATSOEVER, DIRECTLY OR INDIRECTLY,
ENGAGE IN ANY MANNER IN THE RESTRICTED BUSINESSES IN THE RESTRICTED TRADES; AND
(II)
NEITHER THE SELLER PARTY NOR ANY AFFILIATE THEREOF SHALL,
DIRECTLY OR INDIRECTLY, (A) INDUCE OR ATTEMPT TO INDUCE ANY CUSTOMER TO CEASE
DOING BUSINESS WITH BUYER OR ANY OF ITS AFFILIATES, (B) INTERFERE WITH THE
RELATIONSHIP BETWEEN ANY CUSTOMER AND BUYER OR ANY OF ITS AFFILIATES OR (C)
SOLICIT RESTRICTED BUSINESS FROM, OR PROVIDE SUCH SERVICES TO, ANY OF THE
CUSTOMERS OR ACCOUNTS OF BUYER OR ANY OF ITS AFFILIATES.
(B)
IF BUYER BELIEVES THAT ANY SELLER PARTY OR ANY AFFILIATE OF THE
SELLER PARTY HAS VIOLATED THE PROVISIONS OF THIS SECTION 6.5, BUYER SHALL HAVE
THE RIGHT TO SEEK RELIEF FROM ANY COURT OF COMPETENT JURISDICTION AGAINST SUCH
PARTY.
EACH SELLER PARTY ACKNOWLEDGES THAT MONEY DAMAGES ALONE SHALL NOT
ADEQUATELY COMPENSATE BUYER IN THE EVENT OF A BREACH OF THE COVENANTS OF THIS
SECTION 6.5.
THEREFORE, EACH SELLER PARTY AGREES THAT IN ADDITION TO ALL
REMEDIES AVAILABLE AT LAW, IN EQUITY OR UNDER THIS AGREEMENT, BUYER SHALL BE
ENTITLED TO INJUNCTIVE RELIEF FOR THE ENFORCEMENT OF THIS COVENANT.
(C)
EACH SELLER PARTY AGREES THAT THE COVENANTS IN THIS SECTION 6.5
ARE REASONABLE WITH RESPECT TO THEIR DURATION, SCOPE AND GEOGRAPHICAL AREA.
37
(D)
THE COVENANTS IN THIS SECTION 6.5 ARE SEVERABLE AND SEPARATE, AND
THE UNENFORCEABILITY OF ANY SPECIFIC COVENANT IN THIS SECTION 6.5 IS NOT
INTENDED BY