This excerpt taken from the PRVT 8-K filed Jan 23, 2009.
9. PRE-CLOSING AND POST-CLOSING COVENANTS
(a) Each of the Parties shall use reasonable commercial efforts to cause such Partys representations and warranties to be true on and as of the Closing Date; and to perform such Partys covenants hereunder; and to cause the conditions to any others performance of its obligations hereunder to occur in a timely manner.
(b) In case at any time prior to or after the Closing any further action is necessary to carry out the purposes of this Agreement, each of the Parties will take such further action (including the execution and delivery of such further instruments and documents) as any other Party reasonably may request, all at the sole cost and expense of the requesting Party (unless the requesting Party is entitled to indemnification therefor under Section 10 below). Sellers acknowledge and agree that, from and after the Closing, Buyer will be entitled to possession of all documents, books, records, agreements, and financial data relating to the Subsidiaries. Buyer shall have the right, prior to the Closing, to access books, records, documents, employees and clients as may be necessary, in Buyers sole discretion, to enable Buyer to conduct its pre-closing due diligence examination of the Subsidiaries. Buyer and the Subsidiaries agree that Sellers shall have the right following the Closing to have reasonable access to such documents, books, records and financial data for the purpose of concluding their involvement in the business of the Subsidiaries prior to the Closing Date, to comply with or enforce their rights and obligations under this Agreement and applicable securities, Tax, employment or other laws and regulations, and to defend themselves in any litigation.
9.2 Litigation Support. In the event and for so long as any Party actively is contesting or defending against any third party action, suit, proceeding, hearing, investigation, charge, complaint, claim or demand in connection with (a) any transaction contemplated under this Agreement or (b) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction on or prior to the Closing Date involving a Subsidiary or the transactions contemplated hereby, each of the other Parties will reasonably cooperate with the contesting or defending Party and his, her or its
counsel in the contest or defense, reasonably make available his, her or its personnel, and provide such testimony and access to his, her or its books and records, as shall be reasonably necessary in connection with the contest or defense, all at the sole cost and expense of the contesting or defending Party (unless the contesting or defending Party is entitled to indemnification with respect thereto under Article 10 below).
9.3 Restrictive Covenants. Sellers acknowledge and agree that substantial and valuable assets which belong to the Subsidiaries include the trade names, Confidential Information, relationships with Clients and Suppliers and prospective Clients and Suppliers, and goodwill of the Subsidiaries, and that the relationships which the Subsidiaries have with their employees and Clients and Suppliers are significant business relationships necessary for the Subsidiaries to continue to operate their business. Sellers further acknowledge and agree that, following the Closing, such Sellers will continue to have access to the aforesaid assets and relationships by virtue of continued employment with a Subsidiary following the Closing. Sellers further acknowledge and agree that each of Buyer and the Subsidiaries have a reasonable, necessary and legitimate business interest in protecting the aforesaid assets and relationships and businesses, that the covenants set forth below are reasonable and necessary in order to protect these legitimate business interests, and that the covenants set forth below are a material inducement for Buyer to enter into the transactions contemplated by this Agreement. In addition, Sellers acknowledge and agree that monetary damages will not be an adequate remedy for any material breach of any of their covenants contained in this Section 9.3, and that irreparable injury may result to Buyer and the Subsidiaries or their successors in interest, in the event of any such material breach. (Reference is made to Section 10.6 hereof relating to the rights of Buyer and the Subsidiaries and their successors to equitable relief for breaches of this Section 9.3.) Accordingly, each Seller individually agrees to the following restrictions which are specifically applicable to such Seller, effective as of the Closing Date:
(a) Each Seller will not use, or grant to any Person the right to use at any time, the Trademarks or Domain Names used or held by a Subsidiary, or any similar names, juxtapositions or derivations thereof, without the prior written consent of Buyer.
(b) Each Seller will not, directly or indirectly, use, or willfully disclose to any Person, any Confidential Information of the Subsidiaries or Buyer (provided, in the latter case, such Seller became familiar with such Confidential Information during his or her employment with the Subsidiary), except (A) in the Ordinary Course of Business on behalf of the Subsidiary or Buyer, as the case may be, (B) with the prior written consent of the Subsidiary or Buyer, as the case may be, or (C) to the extent necessary to comply with law or the valid order of a court of competent jurisdiction, in which event such Seller shall notify Buyer as promptly as practicable (and, if possible, prior to the making of such disclosure). In addition, such Seller will use reasonable efforts to prevent any such prohibited use or disclosure by any other employee of the Subsidiary.
(c) Each Seller will not, directly or indirectly, solicit the provision of any Companies Business from, or provide, accept any offer to provide, or otherwise induce the termination or non-renewal of any Companies Business to, any Client or Supplier or prospective Client or Supplier of a Subsidiary or Buyer (provided, in the latter case, that such Seller had substantial contact or became familiar with such Client or Supplier or prospective Client or Supplier during his or her employment with the Subsidiary), except in the Ordinary Course of Business on behalf of the Subsidiary or Buyer. The restrictions contained in this subsection (c) shall terminate three (3) years after the Closing Date. For purposes of this subsection (c), a Persons status as a Client or Supplier or prospective Client or Supplier shall be determined as of the the date of the activity restricted by this subsection (c).
(d) Each Seller hereby agrees to refrain from Carrying on a Business, directly or indirectly, which provides any Companies Business (as conducted as of the Closing Date) within the Restricted Territory. The restrictions contained in this subsection (d) shall terminate co-extensively with the termination periods specified in subsection (c). The term Carrying on a Business shall mean to engage in any such business as a sole proprietor, partner, member of a limited liability company, officer, director, employee, stockholder or similar capacity. It is expressly agreed that the foregoing is not intended to restrict or prohibit, and shall not restrict or prohibit, the ownership by such Seller of stock or other securities of a publicly-held corporation in which he or she does not possess beneficial ownership of more than 5% of the voting stock of such corporation or participate in any management or advisory capacity. For purposes of this subsection (d) only, the term Companies Business shall not include web-developing and system integrating services for e-Commerce systems outside of the market for adult entertainment products.
(e) Each Seller will not, directly or indirectly, solicit any other employee, consultant or independent contractor of a Subsidiary or Buyer, or otherwise induce any employee, consultant or independent contractor to terminate his or her relationship, or to breach an employment agreement, with Buyer, a Subsidiary or any Affiliate. The restrictions contained in this subsection (e) shall terminate after the later of three years after the Closing Date or three years from the termination of such Sellers employment with Buyer, a Subsidiary or any Affiliate.
(f) For the avoidance of doubt, each Seller acknowledges that if such Seller engages (directly or indirectly) in any conduct which violates this Section 9.3, such conduct shall constitute a breach of this Agreement regardless of whether such conduct constitutes a violation of his or her Employment Agreement.
9.4 Third Party Consents. The Parties will use reasonable efforts to obtain as promptly as possible after the Closing Date any third party written approval or consent to this Agreement and the transactions contemplated hereunder where such approval or other consent is either (i) required to be obtained at or prior to Closing but waived, or (ii) required to be obtained after Closing.
9.5 Discharge of Certain Obligations. Effective as of the Closing Date Sellers shall have caused the Subsidiaries to have paid or otherwise satisfied in full all transaction costs incurred by the Subsidiaries in connection with the transactions contemplated by this Agreement, including without limitation the fees of any representatives, agents, professional advisors, brokers or other intermediaries, other than up to $75,000 of legal fees payable by Buyer under Section 9.11, or fees to the Subsidiaries auditors to the extent that Buyer has failed to make payments required to be made by it under Section 9.9(c) of this Agreement.