THREE YEARS AFTER THE
CLOSING, SELLER AND ITS AFFILIATES WILL KEEP CONFIDENTIAL ALL OF THE
CONFIDENTIAL INFORMATION, AND REFRAIN FROM USING OR DISCLOSING ANY OF THE
CONFIDENTIAL INFORMATION, EXCEPT TO THE EXTENT REASONABLY REQUIRED IN CONNECTION
WITH THE PERFORMANCE OF ANY OF ITS DUTIES OR ENFORCEMENT OF ANY OF ITS RIGHTS
UNDER THIS AGREEMENT OR THE TRANSITION SERVICES AGREEMENT.
(C)
SELLER AGREES THAT THE PROVISIONS AND
RESTRICTIONS CONTAINED IN SECTION 11.6(B) HEREOF ARE NECESSARY TO PROTECT THE
LEGITIMATE CONTINUING INTERESTS OF BUYER IN ACQUIRING THE BUSINESS AND ENTERING
INTO THIS AGREEMENT, THAT AGREEMENTS CONTAINED IN SECTION 11.6(B) HAVE BEEN
SPECIFICALLY BARGAINED FOR, THAT ANY VIOLATION OR BREACH OF SUCH PROVISIONS AND
RESTRICTIONS WILL RESULT IN IRREPARABLE INJURY TO BUYER FOR WHICH A REMEDY AT
LAW MAY BE INADEQUATE AND THAT, IN ADDITION TO ANY RELIEF AT LAW WHICH MAY BE
AVAILABLE TO BUYER FOR SUCH VIOLATION OR BREACH AND REGARDLESS OF ANY OTHER
PROVISION CONTAINED IN THIS AGREEMENT, BUYER WILL BE ENTITLED TO INJUNCTIVE AND
OTHER EQUITABLE RELIEF RESTRAINING SUCH VIOLATION OR BREACH (WITHOUT ANY
REQUIREMENT THAT BUYER PROVIDE ANY BOND OR OTHER SECURITY IF SUCH INJUNCTION OR
OTHER RELIEF IS AWARDED AFTER AN EVIDENTIARY HEARING AT WHICH SELLER HAS THE
OPPORTUNITY TO BE PRESENT AND HEARD).
(D)
NOTWITHSTANDING THE FOREGOING, IF SELLER IS
REQUESTED OR REQUIRED (IN CONNECTION WITH ANY PROCEEDING, INTERROGATORY,
SUBPOENA, CIVIL INVESTIGATIVE DEMAND OR SIMILAR PROCESS) TO DISCLOSE ANY
CONFIDENTIAL INFORMATION, SELLER SHALL NOTIFY BUYER PROMPTLY OF THE REQUEST OR
REQUIREMENT SO THAT BUYER MAY SEEK AN APPROPRIATE PROTECTIVE ORDER OR WAIVE
COMPLIANCE WITH THE PROVISIONS OF SECTION 11.6(B).
IF, IN THE ABSENCE OF A
PROTECTIVE ORDER OR THE RECEIPT OF A WAIVER HEREUNDER, SELLER IS, ON THE ADVICE
OF COUNSEL, COMPELLED TO DISCLOSE ANY CONFIDENTIAL INFORMATION TO ANY TRIBUNAL,
SELLER MAY DISCLOSE THE CONFIDENTIAL INFORMATION TO THE TRIBUNAL; PROVIDED,
HOWEVER, THAT SELLER WILL USE ITS BEST EFFORTS TO OBTAIN, AT THE REQUEST AND
EXPENSE OF BUYER, AN ORDER OR OTHER ASSURANCE THAT CONFIDENTIAL TREATMENT WILL
BE ACCORDED TO SUCH PORTION OF THE CONFIDENTIAL INFORMATION REQUIRED TO BE
DISCLOSED AS BUYER DESIGNATES.
(E)
EFFECTIVE UPON THE CLOSING, SELLER SHALL
ASSIGN TO BUYER ALL OF SELLER'S RIGHT, TITLE AND INTEREST IN AND TO ANY
CONFIDENTIALITY AGREEMENTS TO WHICH SELLER OR ANY OF ITS AGENTS IS A PARTY
RELATING TO THE CONFIDENTIALITY OF INFORMATION OF THE BUSINESS OR THE HIRING OF
EMPLOYEES OF COMPANY.
45
11.7
NONCOMPETE; NONSOLICIT.
(A)
AS AN INDUCEMENT FOR BUYER TO ENTER INTO
THIS AGREEMENT AND AS ADDITIONAL CONSIDERATION FOR THE CONSIDERATION TO BE PAID
TO SELLER UNDER THIS AGREEMENT, FOR A PERIOD OF THREE YEARS FROM THE CLOSING
DATE, SELLER WILL NOT DIRECTLY OR INDIRECTLY ENGAGE IN, ACQUIRE, OWN OR HOLD A
BUSINESS ANYWHERE IN THE UNITED STATES, CANADA OR MEXICO THAT ENGAGES IN THE
BUSINESS IN COMPETITION WITH COMPANY (THE "SELLER RESTRICTED BUSINESS"),
INCLUDING AS A PROPRIETOR, PRINCIPAL, AGENT, PARTNER, OFFICER, DIRECTOR,
STOCKHOLDER, EMPLOYEE, MEMBER OF ANY ASSOCIATION, CONSULTANT OR OTHERWISE.
FOR
THE AVOIDANCE OF DOUBT, IT IS AGREED THAT KENTUCKY