of any of the
Warranties being untrue or misleading or being breached, the Sellers jointly and
severally undertake with the Purchaser that they shall, at the direction of the
Purchaser, pay to the Purchaser or (in the case of liability to another person
which has not been discharged) the person to whom the liability has been
incurred the amount necessary to put the Purchaser and/or the Company into the
position they or it would have been in if the Warranty had not been untrue,
misleading or breached, together with all costs and expenses incurred by the
Purchaser and/or the Company as a result of the Warranty being untrue,
misleading or breached (collectively, the "Damages"). The Purchaser shall be
entitled to reduce the amount of any Earn Out Payment by the amount of any
Damages.
Any liability of the Sellers under this Agreement shall be joint and
several.
10.
NON-COMPETITION; NON-SOLICITATION AND CONFIDENTIALITY COMMITMENT
10.1
TO ASSURE THE PURCHASER THE FULL BENEFIT OF THE BUSINESS, KNOW-HOW
AND GOODWILL OF THE COMPANY, EACH OF THE SELLERS SEVERALLY UNDERTAKES AND
COVENANTS TO THE PURCHASER BY WAY OF FURTHER CONSIDERATION FOR THE OBLIGATIONS
OF THE PURCHASER UNDER THIS AGREEMENT, AS SEPARATE AND INDEPENDENT AGREEMENTS,
THAT HE WILL NOT (WITHOUT THE PURCHASER'S PRIOR WRITTEN CONSENT):
(A)
USE (WHETHER FOR HIS OWN BENEFIT OR FOR THE BENEFIT OF ANY OTHER
PERSON, FIRM, COMPANY OR ORGANISATION) OR DISCLOSE TO ANY PERSON, FIRM, COMPANY
OR ORGANISATION ANY OF THE TRADE SECRETS OR OTHER CONFIDENTIAL INFORMATION OF OR
RELATING TO: (A) THE COMPANY OR THE PREDECESSOR; (B) ANY CUSTOMER OR CLIENT OF
THE COMPANY OR THE PREDECESSOR; (C) ANY PERSON, FIRM, COMPANY OR ORGANISATION
WITH WHOM OR WHICH THE COMPANY IS INVOLVED IN ANY KIND OF BUSINESS VENTURE OR
PARTNERSHIP; OR (D) THE BUSINESS OR PRODUCTIONS OF THE COMPANY OR THE
PREDECESSOR WHICH INFORMATION HE MAY HAVE RECEIVED OR OBTAINED, OR MAY RECEIVE
OR OBTAIN IN THE FUTURE, IN CONFIDENCE WHILE HE WAS A SHAREHOLDER, OR IN THE
EMPLOYMENT, OF THE COMPANY OR THE PREDECESSOR, AND WILL LIKEWISE USE HIS BEST
ENDEAVOURS TO PREVENT THE UNAUTHORISED PUBLICATION
25
OR DISCLOSURE BY ANY THIRD PARTY OF ANY SUCH TRADE SECRETS OR CONFIDENTIAL
INFORMATION;
(B)
FOR THREE YEARS AFTER COMPLETION, IN RELATION TO A BUSINESS WHICH
IS SUBSTANTIALLY THE SAME AS OR IN COMPETITION WITH THE BUSINESS OF THE COMPANY
IMMEDIATELY PRIOR TO COMPLETION, EITHER ON HIS OWN ACCOUNT OR FOR ANY OTHER
PERSON, FOR THE PURPOSE OF OBTAINING BUSINESS, ORDERS OR CUSTOM, DIRECTLY OR
INDIRECTLY, SOLICIT OR ENDEAVOUR TO ENTICE AWAY FROM THE COMPANY ANY BUSINESS,
ORDER OR CUSTOM OF ANY PERSON WHO, TO THE SELLER'S KNOWLEDGE, IS AS AT
COMPLETION, OR HAS DURING THE ONE YEAR IMMEDIATELY PRECEDING COMPLETION BEEN, A
CLIENT OR CUSTOMER OF THE COMPANY OR THE PREDECESSOR AND EITHER: (I) WITH WHOM
HE HAS HAD CONTACT OR DEALINGS DURING THE COURSE OF HIS SHAREHOLDING OF, OR
EMPLOYMENT WITH, THE COMPANY OR THE PREDECESSOR DURING THE ONE-YEAR PERIOD
IMMEDIATELY PRECEDING COMPLETION; OR (II) ABOUT WHOM AT