Common use of Certain Acknowledgements Clause in Contracts

Certain Acknowledgements. (a) Seller acknowledges and agrees that Buyer may be irreparably harmed if Seller or its subsidiaries or controlled Affiliates in any other manner breach the covenants contained in this Section 11 (the “Restrictive Covenants”) and that any such breach would result in a substantial loss of goodwill by Buyer. Seller further acknowledges and agrees that the Restrictive Covenants and agreements set forth in this Section 11 were a material inducement to Buyer to enter into this Agreement and to perform its obligations hereunder, and that Buyer would not obtain the full benefit of the bargain set forth in this Agreement as specifically negotiated by the parties hereto if Seller breached the provisions of this Section 11. Seller acknowledges that the restrictions set forth in this Section 11 are reasonable and necessary to protect the goodwill of the Business being purchased by Buyer hereunder. If, at the time of enforcement of the Restrictive Covenants, a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by applicable Legal Requirements. (b) If either Seller or a subsidiary or controlled Affiliate of Seller breaches, or threatens to commit a breach of, any of the Restrictive Covenants, Buyer shall have the following rights and remedies, each of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to Buyer at law or in equity: (i) the right and remedy to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction, it being agreed that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to Buyer and that money damages would not provide an adequate remedy; and (ii) the right and remedy to require Seller or such subsidiary or controlled Affiliate to account for and pay over to Buyer any profits, monies, accruals, increments or other benefits derived or received by such Person as the result of any transactions constituting a breach of the Restrictive Covenants.

Certain Acknowledgements. (a) The parties hereto have determined that it is essential to realizing the value of the Acquired Assets, including the Goodwill, acquired pursuant to this Agreement, that Buyer obtain the agreements of Seller and the Stockholders (together, the “Restricted Persons” and each, a “Restricted Person”) set forth in this Agreement, including undertakings of each Restricted Person to protect certain Business Proprietary Information and Confidential Records and not to engage in the solicitation of certain personnel or Customers and of certain Restricted Persons not to engage in certain competitive activities, and as to certain other matters, all as provided in this Agreement. Accordingly, Buyer has required that the covenants and agreements contained in this Article X be delivered in this Agreement as a condition to Buyer’s willingness to enter into the transactions contemplated by this Agreement, and each Restricted Person has agreed to do so. (b) Each Restricted Person acknowledges and agrees that it is fair, reasonable and necessary, for the protection of the value of the business, operations, prestige, reputation and goodwill of the Business and of the Acquired Assets to be sold by Seller and purchased by Buyer may be irreparably harmed if Seller or its subsidiaries or controlled Affiliates in any other manner breach hereunder, that each Restricted Person make the agreements and covenants contained in this Section 11 Agreement applicable to such Restricted Person. (the “Restrictive Covenants”c) and that any such breach would result in a substantial loss of goodwill by Buyer. Seller further Each Restricted Person acknowledges and agrees that the Restrictive Covenants and agreements set forth in this Section 11 were a material inducement to Buyer to enter into this Agreement and to perform its obligations hereunder, and that Buyer would not obtain consummate the full benefit transactions contemplated by this Agreement without the assurance that each Restricted Person will not engage in any of the bargain activities prohibited by Sections 10.3, 10.4 and 10.5 applicable to such Restricted Person for the periods set forth in this Agreement as specifically negotiated by the parties hereto if Seller breached therein. Each Stockholder understands that the provisions of this Section 11. Seller Sections 10.3, 10.4 and 10.5, as may be applicable, may limit such Stockholder’s ability to earn a livelihood in a business similar to the Business, but nevertheless agrees and hereby acknowledges that the consideration provided under this Agreement is sufficient to justify the restrictions contained in such provisions. Each Restricted Person agrees to restrict such Restricted Person’s actions as provided for in Sections 10.3, 10.4 and 10.5. Each Restricted Person further acknowledges that the scope and duration of the restrictions set forth in this Section 11 Sections 10.3, 10.4 and 10.5 are reasonable and necessary to protect the goodwill in light of the Business being purchased by Buyer hereunder. If, at the time of enforcement specific nature and duration of the Restrictive Covenantstransactions contemplated by this Agreement and the payments made under this Agreement to Seller, a court shall hold of which the Stockholders are the sole stockholders. In consideration thereof, and in light of each such Stockholder’s education, skills and abilities, each Stockholder agrees not to assert in any forum that the durationprovisions of Sections 10.3, scope 10.4 and 10.5 applicable to such Stockholder prevent such Stockholder from earning a living or area restrictions stated herein otherwise are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope void or area reasonable under such circumstances shall unenforceable or should be substituted for the stated duration, scope held void or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by applicable Legal Requirementsunenforceable. (b) If either Seller or a subsidiary or controlled Affiliate of Seller breaches, or threatens to commit a breach of, any of the Restrictive Covenants, Buyer shall have the following rights and remedies, each of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to Buyer at law or in equity: (i) the right and remedy to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction, it being agreed that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to Buyer and that money damages would not provide an adequate remedy; and (ii) the right and remedy to require Seller or such subsidiary or controlled Affiliate to account for and pay over to Buyer any profits, monies, accruals, increments or other benefits derived or received by such Person as the result of any transactions constituting a breach of the Restrictive Covenants.

Certain Acknowledgements. (a) Seller Each of the Borrowers hereby acknowledges and agrees that Buyer (a) no fiduciary, advisory or agency relationship between the Borrowers and the Credit Parties is intended to be or has been created in respect of any of the transactions contemplated by this Agreement or the other Loan Documents, irrespective of whether the Credit Parties have advised or are advising the Borrowers on other matters, and the relationship between the Credit Parties, on the one hand, and the Borrowers, on the other hand, in connection herewith and therewith is solely that of creditor and debtor, (b) the Credit Parties, on the one hand, and the Borrowers, on the other hand, have an arm’s length business relationship that does not directly or indirectly give rise to, nor do the Borrowers rely on, any fiduciary duty to the Borrowers or their affiliates on the part of the Credit Parties, (c) the Borrowers are capable of evaluating and understanding, and the Borrowers understand and accept, the terms, risks and conditions of the transactions contemplated by this Agreement and the other Loan Documents, (d) the Borrowers have been advised that the Credit Parties are engaged in a broad range of transactions that may involve interests that differ from the Borrowers’ interests and that the Credit Parties have no obligation to disclose such interests and transactions to the Borrowers, (e) the Borrowers have consulted their own legal, accounting, regulatory and tax advisors to the extent the Borrowers have deemed appropriate in the negotiation, execution and delivery of this Agreement and the other Loan Documents, (f) each Credit Party has been, is, and will be irreparably harmed if Seller acting solely as a principal and, except as otherwise expressly agreed in writing by it and the relevant parties, has not been, is not, and will not be acting as an advisor, agent or its subsidiaries fiduciary for the Borrowers, any of their affiliates or controlled any other Person, (g) none of the Credit Parties has any obligation to the Borrowers or their Affiliates with respect to the transactions contemplated by this Agreement or the other Loan Documents except those obligations expressly set forth herein or therein or in any other manner breach express writing executed and delivered by such Credit Party and the covenants contained in this Section 11 (the “Restrictive Covenants”) and that Borrowers or any such breach would result in a substantial loss of goodwill Affiliate and (h) no joint venture is created hereby or by Buyer. Seller further acknowledges and agrees that the Restrictive Covenants and agreements set forth in this Section 11 were a material inducement to Buyer to enter into this Agreement and to perform its obligations hereunder, and that Buyer would not obtain the full benefit other Loan Documents or otherwise exists by virtue of the bargain set forth in this Agreement as specifically negotiated by transactions contemplated hereby among the parties hereto if Seller breached Credit Parties or among the provisions Borrowers and the Credit Parties. For purposes of this Section 11. Seller acknowledges that the restrictions set forth in this Section 11 are reasonable and necessary to protect the goodwill 11.17, “Credit Party” means each of the Business being purchased by Buyer hereunder. If, at the time of enforcement of the Restrictive Covenants, a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existingLenders, the parties agree that Administrative Agent, the maximum duration, scope or area reasonable under such circumstances shall be substituted for Other Agents and the stated duration, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by applicable Legal RequirementsArrangers. (b) If either Seller or a subsidiary or controlled Affiliate of Seller breaches, or threatens to commit a breach of, any of the Restrictive Covenants, Buyer shall have the following rights and remedies, each of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to Buyer at law or in equity: (i) the right and remedy to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction, it being agreed that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to Buyer and that money damages would not provide an adequate remedy; and (ii) the right and remedy to require Seller or such subsidiary or controlled Affiliate to account for and pay over to Buyer any profits, monies, accruals, increments or other benefits derived or received by such Person as the result of any transactions constituting a breach of the Restrictive Covenants.

Certain Acknowledgements. Except as otherwise expressly set forth in ARTICLE III or ARTICLE IV (a) Seller as qualified by the Disclosure Schedule), Sellers expressly disclaim any representations or warranties of any kind or nature, express or implied, including as to the condition, value or quality of the Business or the assets of the Business, and Sellers disclaim any representation or warranty of merchantability, usage, suitability or fitness for any particular purposes with respect to the assets of the Business, or any part thereof, or as to the workmanship thereof, or the absence of any defects therein, whether latent or patent, it being understood that such subject assets are being acquired “AS IS, WHERE IS” on the Closing Date, and in their present condition, and Buyer will rely on its own examination and investigation thereof. Buyer acknowledges and agrees that Buyer may be irreparably harmed if Seller it is not relying on any statement or its subsidiaries representation made by or controlled Affiliates on behalf of Sellers (including any statement or representation made in any estimates, projections, predictions, data, financial information, memoranda, presentations or any other manner breach materials or information) except as specifically set forth in ARTICLE III or ARTICLE IV (as qualified by the covenants contained Disclosure Schedule) and that no Person has been authorized by Sellers to make any representation or warranty relating to Sellers, any Acquired Company, the Purchased IP or the Business or otherwise in connection with the Transactions, except as specifically set forth in ARTICLE III or ARTICLE IV (as qualified by the Disclosure Schedule). Sellers are relying upon Buyer’s acknowledgement in this Section 11 10.7 in entering into this Agreement, except as otherwise expressly set forth in ARTICLE III or ARTICLE IV (as qualified by the “Restrictive Covenants”) and that Disclosure Schedule), no Seller nor any such breach would result in a substantial loss other Person will have or be subject to any Liability to Buyer resulting from the distribution to Buyer or its Representatives or Buyer’s use of goodwill by Buyer. Seller further acknowledges and agrees that any information regarding Sellers, the Restrictive Covenants and agreements Acquired Companies, the Purchased IP or the Business not expressly set forth in this Section 11 were a material inducement Agreement, including any projections or other information provided by or on behalf of Sellers relating to Buyer to enter into this Agreement and to perform its obligations hereunder, and that Buyer would not obtain the full benefit of the bargain Transactions or otherwise set forth in the Business Financial Information. Nothing in this Agreement as specifically negotiated by the parties hereto if Seller breached the provisions of this Section 11. Seller acknowledges that the restrictions set forth in this Section 11 are reasonable and necessary to protect the goodwill of the Business being purchased by Buyer hereunder. Ifshall, at the time of enforcement of the Restrictive Covenants, a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed and directed deemed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by applicable Legal Requirements. (b) If either Seller or a subsidiary or controlled Affiliate of Seller breaches, or threatens to commit a breach oflimit, any Party’s ability to make a claim or bring a cause of the Restrictive Covenants, Buyer shall have the following rights and remedies, each of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to Buyer at law or in equity: (i) the right and remedy to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction, it being agreed that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to Buyer and that money damages would not provide an adequate remedy; and (ii) the right and remedy to require Seller or such subsidiary or controlled Affiliate to account action for and pay over to Buyer any profits, monies, accruals, increments or other benefits derived or received by such Person as the result of any transactions constituting a breach of the Restrictive Covenantsfraud.

Certain Acknowledgements. (a) Seller acknowledges and agrees that Buyer may be irreparably harmed if Seller or its subsidiaries or controlled Affiliates in any other manner breach the covenants contained in this Section 11 (the “Restrictive Covenants”) and that any such breach would result in a substantial loss of goodwill by Buyer. Seller further acknowledges and agrees that the Restrictive Covenants and agreements set forth in this Section 11 were a material inducement to Buyer to enter into this Agreement and to perform its obligations hereunder, and that Buyer would not obtain the full benefit of the bargain set forth in this Agreement as specifically negotiated by the parties hereto if Seller breached the provisions of this Section 11. Seller acknowledges that the restrictions set forth in this Section 11 are reasonable and necessary to protect the goodwill of the Business being purchased by Buyer hereunder. The parties intend that these Restrictive Covenants shall be deemed to be a series of separate covenants, one for each and every state of the United States of America and province of Canada. If, at the time of enforcement of the Restrictive Covenants, a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by applicable Legal Requirements. (b) Seller acknowledges and agrees that money damages would not provide an adequate remedy for any breach of this Section 11 and that Buyer shall, whether or not it is pursuing any potential remedies at law, be entitled to equitable relief in the form of preliminary and permanent injunctions without bond or other security upon any actual or threatened breach of these Restrictive Covenants. If either Seller or a subsidiary or controlled Affiliate of Seller breaches, or threatens to commit a breach of, any of the Restrictive Covenants, Buyer shall shall, whether or not it is pursuing any potential remedies at law, have the following rights and remedies, each of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to Buyer at law or in equity: (i) the right and remedy to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction, it being agreed that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to Buyer and that money damages would not provide an adequate remedy; and (ii) the right and remedy to require Seller or such subsidiary or controlled Affiliate to account for and pay over to Buyer any profits, monies, accruals, increments or other benefits derived or received by such Person as the result of any transactions constituting a breach of the Restrictive Covenants.

Certain Acknowledgements. (ai) Seller acknowledges and Alpex may enter into one or more agreements with third parties ("Collaborators") to supply Product to such Collaborators to enable such Collaborators to commercialize the Product pursuant to an agreement with Citius. Alpex agrees that Buyer may it shall not enter into any such agreement with any Third Party pursuant to which Alpex will supply Product to such Third Party for the Territory without the prior written consent of Citius. (ii) Alpex hereby acknowledges that the Product will not be irreparably harmed if Seller launched within three (3) months after receipt of Regulatory Approval in the Territory. Alpex hereby permanently and irrevocably waives the requirement in Section 7.1(b)(ii) of the Agreement that the Product shall be launched within three (3) months of the receipt of Regulatory Approval in the Territory. Alpex further confirms that the failure to launch the Product in accordance with the requirements of Section 7.1(b)(ii) of the Agreement prior to the foregoing waiver shall have no effect on Citius' rights under the Agreement, including without limitation, the exclusive rights granted under Section 2.1 of the Agreement. (iii) Alpex hereby acknowledges that Citius has not obtained the freedom to operate analyses described in Section 4.7 of the Agreement, and therefore, that Citius has not satisfied the Initial Freedom to Operate Condition or the Second Freedom to Operate Condition. Alpex hereby permanently and irrevocably waives the requirements set forth in Section 4.7 of the Agreement, including without limitation, the Initial Freedom to Operate Condition and the Second Freedom to Operate Condition. Alpex further confirms that the failure of Citius to satisfy the requirements of Section 4.7 of the Agreement, including without limitation, the failure to satisfy the Initial Freedom to Operate Condition and the Second Freedom to Operate Condition, prior to the foregoing waiver, shall have no effect on Citius' rights under the Agreement, including without limitation, Citius' right to launch the Product in the Territory. (iv) Alpex acknowledges that Citius shall have the right to delegate all or any of its subsidiaries or controlled Affiliates rights under Article IX of the Agreement to a Collaborator in any other manner breach connection with such Collaborator's commercialization of the covenants Products, including without limitation, the right to pursue the prosecution of Alpex Patent Rights in the Territory, subject to the limitations contained in this Section 11 9.1, and the right to enforce the Apex Patent Rights in the Territory, subject to the limitations contained in Section 9.2. (the “Restrictive Covenants”v) and that any such breach would result in a substantial loss of goodwill by Buyer. Seller further acknowledges and agrees that the Restrictive Covenants and agreements The amendments set forth in this Section 11 were a material inducement to Buyer to enter 2 are hereby incorporated into this Agreement and to perform its obligations hereunder, and that Buyer would not obtain the full benefit made part of the bargain set forth in this Agreement as specifically negotiated by Alpex License Agreement. In the parties hereto if Seller breached event of any conflict between the provisions of this Section 11. Seller acknowledges that the restrictions amendments set forth in this Section 11 are reasonable 2 and necessary to protect the goodwill terms and conditions of the Business being purchased by Buyer hereunder. If, at the time of enforcement of the Restrictive Covenants, a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existingAlpex License Agreement, the parties agree that the maximum duration, scope or area reasonable under such circumstances amendments set forth in this Section 2 shall be substituted for the stated duration, scope or area control. The Alpex Agreement shall continue in full force and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by applicable Legal Requirementseffect as expressly modified hereby. (b) If either Seller or a subsidiary or controlled Affiliate of Seller breaches, or threatens to commit a breach of, any of the Restrictive Covenants, Buyer shall have the following rights and remedies, each of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to Buyer at law or in equity: (i) the right and remedy to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction, it being agreed that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to Buyer and that money damages would not provide an adequate remedy; and (ii) the right and remedy to require Seller or such subsidiary or controlled Affiliate to account for and pay over to Buyer any profits, monies, accruals, increments or other benefits derived or received by such Person as the result of any transactions constituting a breach of the Restrictive Covenants.

Certain Acknowledgements. (a) Seller Each Loan Party hereby expressly acknowledges the terms of this Amendment and agrees that Buyer may be irreparably harmed if Seller or its subsidiaries or controlled Affiliates in any other manner breach reaffirms, as of the date hereof, (i) the covenants and agreements contained in this Section 11 (the “Restrictive Covenants”) and that any each Loan Document to which it is a party, including, in each case, such breach would result in a substantial loss of goodwill by Buyer. Seller further acknowledges and agrees that the Restrictive Covenants covenants and agreements set forth as in effect immediately after giving effect to this Section 11 were a material inducement to Buyer to enter into this Agreement Amendment and to perform the transactions contemplated hereby and (ii) its obligations hereunder, and that Buyer would not obtain the full benefit guarantee of the bargain set forth in this Agreement as specifically negotiated by Obligations under the parties hereto if Seller breached Guarantees and its grant of Liens on the provisions of this Section 11. Seller acknowledges that Collateral to secure the restrictions set forth in this Section 11 are reasonable and necessary Obligations pursuant to protect the goodwill of the Business being purchased by Buyer hereunder. If, at the time of enforcement of the Restrictive Covenants, a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by applicable Legal RequirementsSecurity Documents. (b) If either Seller or a subsidiary or controlled Affiliate of Seller breachesAfter giving effect to this Amendment, or threatens to commit a breach of, any neither the modification of the Restrictive CovenantsCredit Agreement effected pursuant to this Amendment nor the execution, Buyer shall have the following rights and remediesdelivery, each performance or effectiveness of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to Buyer at law or in equity: this Amendment (i) impairs the right and remedy to have the Restrictive Covenants specifically enforced by any court of competent jurisdictionvalidity, it being agreed that any breach effectiveness or threatened breach priority of the Restrictive Covenants would cause irreparable injury Liens granted pursuant to Buyer any Loan Document, and that money damages would not provide an adequate remedysuch Liens continue unimpaired with the same priority to secure repayment of all Obligations, whether heretofore or hereafter incurred; and or (ii) the right and remedy to require Seller or such subsidiary or controlled Affiliate to account for and pay over to Buyer requires that any profits, monies, accruals, increments new filings be made or other benefits derived action taken to perfect or received by to maintain the perfection of such Person Liens. (c) Each of the parties hereto agrees (with the Lenders party hereto collectively constituting the Required Lenders as of the result date hereof) that, as of the Second Amendment Closing Date, the utilization of any transactions constituting a breach non-ratio basket or exception set forth in Article VII (Negative Covenants) of the Restrictive CovenantsCredit Agreement by the Borrower and/or its Restricted Subsidiaries prior to the Second Amendment Closing Date shall be disregarded for purposes of calculating availability thereunder and, from and after the Second Amendment Closing Date, all such non-ratio baskets and exceptions shall be deemed to be available in full for utilization by the Borrower and/or its Restricted Subsidiaries, subject in each case to the satisfaction of all other terms and conditions for utilization of each such basket and exception contained therein and in each other Loan Document.

Certain Acknowledgements. (ai) Seller acknowledges and Alpex may enter into one or more agreements with third parties (“Collaborators”) to supply Product to such Collaborators to enable such Collaborators to commercialize the Product pursuant to an agreement with Citius. Alpex agrees that Buyer may it shall not enter into any such agreement with any Third Party pursuant to which Alpex will supply Product to such Third Party for the Territory without the prior written consent of Citius. (ii) Alpex hereby acknowledges that the Product will not be irreparably harmed if Seller launched within three (3) months after receipt of Regulatory Approval in the Territory. Alpex hereby permanently and irrevocably waives the requirement in Section 7.1(b)(ii) of the Agreement that the Product shall be launched within three (3) months of the receipt of Regulatory Approval in the Territory. Alpex further confirms that the failure to launch the Product in accordance with the requirements of Section 7.1(b)(ii) of the Agreement prior to the foregoing waiver shall have no effect on Citius’ rights under the Agreement, including without limitation, the exclusive rights granted under Section 2.1 of the Agreement. (iii) Alpex hereby acknowledges that Citius has not obtained the freedom to operate analyses described in Section 4.7 of the Agreement, and therefore, that Citius has not satisfied the Initial Freedom to Operate Condition or the Second Freedom to Operate Condition. Alpex hereby permanently and irrevocably waives the requirements set forth in Section 4.7 of the Agreement, including without limitation, the Initial Freedom to Operate Condition and the Second Freedom to Operate Condition. Alpex further confirms that the failure of Citius to satisfy the requirements of Section 4.7 of the Agreement, including without limitation, the failure to satisfy the Initial Freedom to Operate Condition and the Second Freedom to Operate Condition, prior to the foregoing waiver, shall have no effect on Citius’ rights under the Agreement, including without limitation, Citius’ right to launch the Product in the Territory. (iv) Alpex acknowledges that Citius shall have the right to delegate all or any of its subsidiaries or controlled Affiliates rights under Article IX of the Agreement to a Collaborator in any other manner breach connection with such Collaborator’s commercialization of the covenants Products, including without limitation, the right to pursue the prosecution of Alpex Patent Rights in the Territory, subject to the limitations contained in this Section 11 9.1, and the right to enforce the Apex Patent Rights in the Territory, subject to the limitations contained in Section 9.2. (the “Restrictive Covenants”v) and that any such breach would result in a substantial loss of goodwill by Buyer. Seller further acknowledges and agrees that the Restrictive Covenants and agreements The amendments set forth in this Section 11 were a material inducement to Buyer to enter 2 are hereby incorporated into this Agreement and to perform its obligations hereunder, and that Buyer would not obtain the full benefit made part of the bargain set forth in this Agreement as specifically negotiated by Alpex License Agreement. In the parties hereto if Seller breached event of any conflict between the provisions of this Section 11. Seller acknowledges that the restrictions amendments set forth in this Section 11 are reasonable 2 and necessary to protect the goodwill terms and conditions of the Business being purchased by Buyer hereunder. If, at the time of enforcement of the Restrictive Covenants, a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existingAlpex License Agreement, the parties agree that the maximum duration, scope or area reasonable under such circumstances amendments set forth in this Section 2 shall be substituted for the stated duration, scope or area control. The Alpex Agreement shall continue in full force and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by applicable Legal Requirementseffect as expressly modified hereby. (b) If either Seller or a subsidiary or controlled Affiliate of Seller breaches, or threatens to commit a breach of, any of the Restrictive Covenants, Buyer shall have the following rights and remedies, each of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to Buyer at law or in equity: (i) the right and remedy to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction, it being agreed that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to Buyer and that money damages would not provide an adequate remedy; and (ii) the right and remedy to require Seller or such subsidiary or controlled Affiliate to account for and pay over to Buyer any profits, monies, accruals, increments or other benefits derived or received by such Person as the result of any transactions constituting a breach of the Restrictive Covenants.

Certain Acknowledgements. (a) Seller acknowledges and agrees that Buyer may be irreparably harmed if Seller or its subsidiaries or controlled Affiliates were to provide services to or otherwise participate in a Competing Business or in any other manner breach the covenants contained in this Section 11 (the “Restrictive Covenants”) and that any such competition or breach by Seller or its subsidiaries or controlled Affiliates would result in a substantial loss of goodwill by Buyer. Seller further acknowledges and agrees that the Restrictive Covenants and agreements set forth in this Section 11 were a material inducement to Buyer to enter into this Agreement and to perform its obligations hereunder, and that Buyer would not obtain the full benefit of the bargain set forth in this Agreement as specifically negotiated by the parties hereto if Seller breached the provisions of this Section 11. Seller acknowledges that the restrictions set forth in this Section 11 are reasonable and necessary to protect the goodwill of the Business Product Line being purchased by Buyer hereunder. If, at the time of enforcement of the Restrictive Covenants, a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by applicable Legal Requirements. (b) If either Seller or a subsidiary or controlled Affiliate of Seller breaches, or threatens to commit a breach of, any of the Restrictive Covenants, Buyer shall have the following rights and remedies, each of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to Buyer at law or in equity: (i) the right and remedy to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction, it being agreed that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to Buyer and that money damages would not provide an adequate remedy; and (ii) the right and remedy to require Seller or such subsidiary or controlled Affiliate to account for and pay over to Buyer any profits, monies, accruals, increments or other benefits derived or received by such Person as the result of any transactions constituting a breach of the Restrictive Covenants.

Certain Acknowledgements. The Purchaser, the Seller and each Seller Owner acknowledge that (ai) the Company engages in a competitive business, (ii) the Seller acknowledges Owners’ services and agrees responsibilities are of particular significance to the Business, (iii) the Seller Owners’ positions within the Business place them in a position of confidence and trust with the customers, clients, suppliers and employees of the Business, and/or (iv) the Seller Owners’ positions within, and the Company’s operation of, the Business provide them with access to Confidential Information and opportunities that Buyer may be irreparably harmed if Seller or its subsidiaries or controlled Affiliates are valuable and material to the Business and the competitive position of the Business and (v) the Purchaser is relying on such access, opportunities, experience and/or skill with, and special knowledge of, the Business, as set forth in any other manner breach clauses (i)–(iv), in order to assure the Purchaser that it will retain the value, including the goodwill, of the Business as a “going concern,” and therefore the Purchaser has required that the covenants and agreements contained in this Section 11 (7.4 be delivered in this Agreement, which the “Restrictive Covenants”) Seller and that any such breach would result in a substantial loss of goodwill by Buyer. each Seller further Owner acknowledges and agrees that are in addition to the Restrictive Covenants and agreements covenants set forth in this Section 11 were any applicable employment or other Contract between the Purchaser or any of its Affiliates (including, after the Closing, the Company), on the one hand, and the Seller or any Seller Owner, on the other hand, as a material inducement condition to Buyer the Purchaser’s willingness to enter into this Agreement and to perform its obligations hereunderconsummate the transactions contemplated by this Agreement, and the Purchaser, the Seller and each Seller Owner has agreed to do so. The Purchaser, the Seller and each Seller Owner acknowledge and agree that Buyer would not obtain it is fair, reasonable and necessary, for the full benefit protection of the bargain set forth in this Agreement as specifically negotiated by value of the parties hereto if Seller breached Business and the provisions of this Section 11. Seller acknowledges that the restrictions set forth in this Section 11 are reasonable operations, prestige, reputation and necessary to protect the goodwill of the Business being purchased by Buyer hereunder. If, at the time of enforcement and of the Restrictive Covenantspurchase thereof by the Purchaser hereunder, a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existingPurchaser, the parties agree Seller and each Seller Owner make the agreements and covenants contained in this Agreement. Further, each Seller Owner acknowledges and agrees that the maximum duration, scope such Seller Owner will directly or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by applicable Legal Requirements. (b) If either Seller or indirectly receive a subsidiary or controlled Affiliate of Seller breaches, or threatens to commit a breach of, any substantial payment in respect of the Restrictive Covenants, Buyer shall have the following rights and remedies, each of which rights and remedies shall be independent sale of the others Company Securities and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to Buyer at law or in equity: (i) valuable consideration from the right and remedy to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction, it being agreed that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to Buyer and that money damages would not provide an adequate remedy; and (ii) the right and remedy to require Seller or such subsidiary or controlled Affiliate to account for and pay over to Buyer any profits, monies, accruals, increments or other benefits derived or received by such Person as the result of any transactions constituting a breach of the Restrictive CovenantsPurchaser specified herein.

Certain Acknowledgements. (a) Seller Each Covered Person acknowledges that Parent would be unwilling to enter into the Merger Agreement and agrees other Transaction Documents, or consummate the transactions contemplated thereby, in the absence of this Agreement, and that Buyer may be irreparably harmed if Seller or its subsidiaries or controlled Affiliates in any other manner breach the covenants contained in this Section 11 herein constitute a material inducement to Parent to enter into, and consummate the transactions contemplated by (including payments of the “Restrictive Covenants”amounts contemplated by), the Merger Agreement and the other Transaction Documents. Without limiting the generality of the foregoing, each Covered Person (on its own behalf and on behalf of its Affiliates) and that any such breach would result in a substantial loss of goodwill by Buyer. Seller further acknowledges and agrees that the Restrictive Covenants and agreements set forth restrictions contained in this Section 11 were a material inducement to Buyer to enter into this Agreement and to perform its obligations hereunder, and that Buyer would not obtain the full benefit of the bargain set forth in this Agreement as specifically negotiated by the parties hereto if Seller breached the provisions of this Section 11. Seller acknowledges that the restrictions set forth in this Section 11 4 are reasonable and necessary to protect the goodwill legitimate interests of Parent, and it is the intention of the Business being purchased by Buyer hereunder. If, at the time of enforcement of the Restrictive Covenants, a court shall hold Parties that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by applicable Legal Requirements. (b) If either Seller or a subsidiary or controlled Affiliate of Seller breaches, or threatens to commit a breach of, if any of the Restrictive Covenantsrestrictions or covenants contained in this Section 4 are for any reason held invalid, Buyer illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall have the following rights not affect any other provisions of this Section 4, and remedies, each of which rights and remedies this Section 4 shall be independent construed as if such invalid, illegal or unenforceable provision had never been contained herein. It is the further intention of the others and severally enforceable, and each Parties that if any restriction or covenant contained herein is held to cover a geographic area or to be for a length of time which is in addition tonot permitted by Applicable Law, and not in lieu of, any other rights and remedies available to Buyer at law or in equity: any way construed to be too broad or to any extent invalid, such provision shall (ito the maximum extent permitted by Applicable Law) not be construed to be null, void and of no effect, but instead shall be construed and interpreted or reformed to provide for a covenant having the right maximum enforceable geographic area, time period and remedy other provisions (not greater than those contained herein) as shall be valid and enforceable under such Applicable Law. If any Covered Person breaches any provision of Section 4(c) or 4(e) with respect to have such breached provision, the Restrictive Covenants specifically enforced by any court restricted period set forth therein shall be tolled with respect to such Covered Person and shall not run for the length of competent jurisdiction, it being agreed that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to Buyer and that money damages would not provide an adequate remedy; and (ii) the right and remedy to require Seller or such subsidiary or controlled Affiliate to account for and pay over to Buyer any profits, monies, accruals, increments or other benefits derived or received by such Person as the result of any transactions constituting a breach of the Restrictive Covenantsbreach.