SUPPLIER, LICENSOR,
LICENSEE OR FRANCHISEE (INCLUDING BY MAKING ANY NEGATIVE STATEMENTS OR
COMMUNICATIONS TO SUCH CUSTOMER, SUPPLIER, LICENSOR, LICENSEE OR FRANCHISEE
ABOUT THE RESTRICTED BUSINESS OF BUYER OR SUCH AFFILIATES) WITH THE GOAL OF
DISRUPTING SUCH RESTRICTED BUSINESS RELATED RELATIONSHIP;
(III)
DURING THE RESTRICTED PERIOD, SELLER AND ITS AFFILIATES SHALL
NOT, DIRECTLY OR INDIRECTLY THROUGH ANOTHER ENTITY, SOLICIT, INDUCE OR CONSPIRE
WITH OR ATTEMPT TO SOLICIT, INDUCE OR CONSPIRE WITH ANY EMPLOYEE OR OFFICER OF
BUYER OR ANY OF ITS AFFILIATES TO LEAVE THE EMPLOY OF BUYER OR ANY OF ITS
AFFILIATES, OR TO COMPETE IN THE RESTRICTED BUSINESS AGAINST THE BUYER OR ANY OF
ITS AFFILIATES OR INTERFERE WITH THE EMPLOYMENT RELATIONSHIP BETWEEN BUYER OR
ANY OF ITS AFFILIATES AND ANY EMPLOYEE OR OFFICER OF BUYER OR SUCH AFFILIATE(S)
IN ANY WAY THAT IS ADVERSE TO SUCH EMPLOYMENT RELATIONSHIP;
(IV)
DURING THE RESTRICTED PERIOD, SELLER AND ITS AFFILIATES SHALL NOT
DIVERT OR ATTEMPT TO DIVERT ANY OR ALL OF THE RESTRICTED BUSINESS OF BUYER'S OR
ANY OF BUYER'S AFFILIATE'S CUSTOMERS OR SUPPLIERS FROM BUYER OR ITS AFFILIATES
IN VIOLATION OF THIS AGREEMENT OR APPLICABLE LAW (INCLUDING ANY APPLICABLE TRADE
SECRETS LAW).
(V)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, SELLER AND ITS AFFILIATES SHALL BE ENTITLED TO SELL, AND SHALL NOT BE
RESTRICTED IN ANY WAY FROM SELLING, TO ANY PERSON AND WHETHER IN THE RESTRICTED
TERRITORIES OR OTHERWISE:
(A)
NON-FRAGRANCED CANDLES AND NON-CANDLE PRODUCTS UNDER THE BRAND
NAMES STERNO®, AMBRIA® OR HANDY FUEL®;
(B)
CANDLES AND CANDLE-RELATED PRODUCTS TO CUSTOMERS OTHER THAN
WAL-MART WHERE SUCH CANDLES AND CANDLE-RELATED PRODUCTS DO NOT CONSTITUTE MORE
THAN
22
10% OF THE AGGREGATE SALES BY SELLER AND/OR ITS AFFILIATES TO CUSTOMERS OTHER
THAN WAL-MART; AND
(C)
CANDLES AND CANDLE PRODUCTS SOLD TO CUSTOMERS OTHER THAN WAL-MART
UNDER THE BRAND NAME COLONIAL CANDLETM OR ANY RELATED BRAND NAME.
(VI)
THE COVENANTS IN THIS SECTION 6(C) ARE SEVERABLE AND SEPARATE, AND
THE UNENFORCEABILITY OF ANY SPECIFIC COVENANT IN THIS SECTION 6(C) IS NOT
INTENDED BY ANY PARTY TO, AND SHALL NOT, AFFECT THE PROVISIONS OF ANY OTHER
COVENANT IN THIS SECTION 6(C).
IF ANY COURT OF COMPETENT JURISDICTION SHALL
DETERMINE THAT THE SCOPE, TIME, OR TERRITORIAL RESTRICTIONS SET FORTH IN THIS
SECTION 6(C) ARE UNREASONABLE AS APPLIED TO SELLER, THE PARTIES ACKNOWLEDGE
THEIR MUTUAL INTENTION AND AGREEMENT THAT THOSE RESTRICTIONS BE ENFORCED TO THE
FULLEST EXTENT THE COURT DEEMS REASONABLE, AND THAT THEY THEREBY SHALL BE
REFORMED TO THAT EXTENT AS APPLIED TO SELLER.
(VII)
ALL OF THE COVENANTS IN THIS SECTION 6(C) ARE INTENDED BY EACH
PARTY HERETO TO BE, AND SHALL BE CONSTRUED AS, AN AGREEMENT INDEPENDENT OF ANY
OTHER PROVISION IN THIS AGREEMENT AND THE EXISTENCE OF ANY CLAIM OR CAUSE OF
ACTION OF SELLER AGAINST BUYER, WHETHER PREDICATED ON THIS AGREEMENT OR
OTHERWISE, SHALL NOT CONSTITUTE A DEFENSE TO THE ENFORCEMENT BY BUYER OF ANY
COVENANT IN THIS SECTION 6(C).
IT IS SPECIFICALLY AGREED THAT THE TIME PERIODS
SPECIFIED IN SECTION 6(C)(I) SHALL BE COMPUTED BY EXCLUDING