Common use of Non-Compete and Non-Solicit Clause in Contracts

Non-Compete and Non-Solicit. Seller hereby acknowledges that Seller is familiar with the Company’s Trade Secrets, customer information and with other Confidential Information. Seller acknowledges and agrees that the Company would be irreparably damaged if Seller were to provide services to or otherwise participate in the business of any Person competing with the Company in violation of this Section 7.5 and that any such competition by Seller would result in a significant loss of goodwill by Purchaser and its affiliates. Seller further acknowledges and agrees that the covenants and agreements set forth in this Section 7.5 were a material inducement to Purchaser to enter into this Agreement and to perform its obligations hereunder, and that Purchaser would not obtain the benefit of the bargain set forth in this Agreement as specifically negotiated by the parties hereto if Seller Breached the provisions of this Section 7.5. Therefore, in further consideration of the amounts to be paid hereunder for the Interests and the goodwill of the Company sold by Seller: (a) Seller agrees that from and after the Closing and until the fourth (4th) anniversary of the Closing (the “Restricted Period”), Seller shall not, anywhere in the Restricted Territories, directly or indirectly own, manage, control, participate in, consult with, render services for, or in any other manner engage in any business that is competitive with the Competitive Business (other than for or on behalf of the Company or Purchaser); provided that nothing herein shall prohibit Seller from being a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded so long as such Seller has no active participation in the business of such corporation. Seller acknowledges that the Company’s business has been conducted or is presently proposed to be conducted throughout the Restricted Territories and that the geographic restrictions set forth above are reasonable and necessary to protect the goodwill of the Company’s business being sold by Seller pursuant to this Agreement. “Competitive Business” shall mean the Company Business as at the Closing Date and the Company Products or Services as at the Closing Date; provided, that, notwithstanding the foregoing, (i) the Excluded Business shall not be deemed to be competitive with the Competitive Business and (ii) software applications that include imbedded Basic Organizational Charting Functionality (as defined below) shall not be deemed competitive with the Competitive Business solely to the extent that such imbedded organizational charting functionality (A) is not separable from the application and may only be accessed from within the broader application, (B) is not included in applications that are competitive with the Company Business, Company Products or Services, and (C) represents ten percent (10%) or less of the total value of the application based on third party pricing of comparable stand-alone products. For purposes of this Agreement, the term “Basic Organizational Charting Functionality” shall mean functionality that permits a user to create a basic branch structured organizational chart solely to display a hierarchical view of relationships among employees within an organization and that does not include any workforce modeling or planning, succession planning, transition management or significant analytics functionality.

Non-Compete and Non-Solicit. Seller hereby acknowledges (a) Employer and Employee acknowledge and agree that Seller is familiar in performing the duties and responsibilities of his employment with the CompanyEmployer, Employee has occupied a position of fiduciary trust and confidence, pursuant to which Employee has developed and acquired a wide experience and knowledge with respect to all aspects of the Business carried on by the Employer, and the manner in which such Business is conducted. It is the express intent and agreement of Employee and the Employer that such knowledge and experience shall not be used in any manner detrimental to the Employer’s Trade Secretsbusiness by Employee. (b) Employer and Employee further acknowledge and agree that in performing the duties and responsibilities of employment, customer information Employee became knowledgeable with respect to a wide variety of Confidential Information which is the exclusive property of the Employer, the disclosure of which may cause irreparable harm to the Employer. Employee therefore agrees following the termination of Employee’s employment, Employee shall treat confidentially all Confidential Information belonging to the Employer. (c) For the period beginning on the Termination Date and continuing through and including December 31, 2019, Employee acknowledges and agrees that she shall not for any reason, either directly or indirectly (without the prior written consent of the Employer), anywhere the Employer’s business operates at the time of the employment termination: (i) hold a 5% or greater equity (including stock options whether or not exercisable), voting or profit participation interest in a Competitive Enterprise, or (ii) associate (including as a director, officer, employee, partner, consultant, agent or advisor) with a Competitive Enterprise and in connection with the Employee’s association engage, or directly or indirectly manage or supervise personnel engaged, in any activity that: (1) is substantially related to any activity that the Employee was engaged in with the Employer during the twelve (12) months prior to the Effective Date of this Agreement; (2) calls for the application of specialized knowledge or skills substantially related to those used by the Employee in his activities with the Employer or any of its affiliates; or (3) is substantially related to any activity for which the Employee had direct or indirect managerial or supervisory responsibility with the Employer. (d) For the period beginning on the Effective Date Date and continuing for a period of one (1) years, Employee acknowledges and agrees that she shall not for any reason, either directly or indirectly (without the prior written consent of the Employer ) acting alone or in conjunction with others (i) solicit, induce, attempt to influence, any employee of the Employer to terminate employment; or (ii) participate in or be aware of prior to or in advance of any hiring, employment or retaining in any capacity, at a business in which Employee becomes a director, officer or employee of or consultant to, (a) of any active employee of the Employer; or (b) of any employee who was actively employed by the Employer within the previous six (6) months of the date of this Agreement. This restriction will be inapplicable to (i) employees separated from employment with SUN in connection with the divestiture of company-owned retail store locations; or (ii) employees terminated by SUN in connection with any restructuring efforts related to the strategic shift from a retail business to a wholesale and distribution business. (e) Employee specifically recognizes and affirms that the provisions of Section 6 are material and essential terms of this Agreement. Employee further acknowledges and agrees that if the non-competition provision found in Section 6(c) or the non-solicit provision found in Section 6(d) is determined to be invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction in an action between Employee and Employer, then Employer shall be entitled to receive from Employee all Restrictive Covenant Units held by Employee. In the Event Employee has sold any or all of the Restrictive Covenant Units obtained under this Agreement, then Employer shall be entitled to receive from Employee a payment equal to the fair market value of the Restrictive Covenant Units on the date of sale, transfer or other Confidential Information. Seller disposition. (f) Employee acknowledges and agrees that the Company would be irreparably damaged Employer will suffer irreparable harm if Seller were to provide services to or otherwise participate in Employee breaches any of the business of any Person competing with the Company in violation of obligations under this Section 7.5 and that any such competition by Seller would result in a significant loss of goodwill by Purchaser and its affiliates. Seller further acknowledges and agrees that the covenants and agreements set forth in this Section 7.5 were a material inducement to Purchaser to enter into this Agreement and to perform its obligations hereunder6, and that Purchaser monetary damages would not obtain be impossible to quantify and inadequate to compensate the benefit Employer for such a breach. Accordingly, Employee agrees that in the event of the bargain set forth in this Agreement as specifically negotiated a breach by the parties hereto if Seller Breached Employee of any of the provisions of this Section 7.5. Therefore6, the Employer shall be entitled to seek, in further consideration addition to any other rights, remedies or damages available to the Employer at law or in equity, a temporary and permanent injunction, without having to prove damages, in order to prevent or restrain any such breach, by Employee, or by any or all of the amounts to be paid hereunder for the Interests Employee’s partners, employers, employees, servants, agents, representatives and the goodwill of the Company sold by Seller: (a) Seller agrees that from and after the Closing and until the fourth (4th) anniversary of the Closing (the “Restricted Period”), Seller shall not, anywhere in the Restricted Territories, any other Persons directly or indirectly own, manage, control, participate in, consult with, render services acting for, or in any other manner engage in any business that is competitive with the Competitive Business (other than for or on behalf of the Company of, or Purchaser); provided that nothing herein shall prohibit Seller from being a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded so long as such Seller has no active participation in the business of such corporation. Seller acknowledges that the Company’s business has been conducted or is presently proposed to be conducted throughout the Restricted Territories concert with, Employee, and that the geographic Employer shall be entitled to seek all of its costs and expenses incurred in obtaining such relief including reasonable attorneys’ and client legal costs and disbursements. (g) Employee hereby agrees that all restrictions set forth above contained in this Section 6 are reasonable reasonable, valid and necessary to protect the Employer’s Confidential Information, goodwill and proprietary business interests. Employee further agrees never to file any lawsuit, claim or counterclaim challenging or otherwise seeking to modify or restrict the noncompetition provision set forth in Section 6(c) of the Company’s business being sold by Seller pursuant to this Agreement. “Competitive Business” Nevertheless, if any of the aforesaid restrictions is found by a court having jurisdiction to be unreasonable, over broad as to geographic area or time or otherwise unenforceable, the Parties intend for the restrictions therein set forth to be modified by such court so as to be reasonable and enforceable and, as so modified by the court, to be fully enforced. If any covenant or provision of this Section 6 is determined to be void or unenforceable in whole or in part, for any reason, it shall mean the Company Business as at the Closing Date and the Company Products or Services as at the Closing Date; provided, that, notwithstanding the foregoing, (i) the Excluded Business shall not be deemed not to be competitive with affect or impair the Competitive Business and (ii) software applications that include imbedded Basic Organizational Charting Functionality (as defined below) shall not be deemed competitive with the Competitive Business solely to the extent that such imbedded organizational charting functionality (A) is not separable from the application and may only be accessed from within the broader application, (B) is not included in applications that are competitive with the Company Business, Company Products validity of any other covenant or Services, and (C) represents ten percent (10%) or less of the total value of the application based on third party pricing of comparable stand-alone products. For purposes provision of this Agreement, which shall remain in full force and effect. The provisions of this Section 6 shall remain in full force and effect notwithstanding the term termination of this Agreement for any reason. (h) For the purposes of this Section 6, “Basic Organizational Charting FunctionalityCompetitive Enterprise” shall mean functionality any business enterprise that permits either (A) engages in any material activity that directly competes within any material geographical location in which the Employer or any of its affiliates operates with any material activity that the Employer or any of its affiliates is then engaged in or (B) holds a user to create 5% or greater equity, voting or profit participation interest in any enterprise that engages in such a basic branch structured organizational chart solely to display a hierarchical view competitive activity. For the avoidance of relationships among employees within an organization and that does doubt, after the closing of the divestiture of the company owned retail stores is completed, the term Competitive Enterprise shall expressly not include any workforce modeling retail or planning, succession planning, transition management or significant analytics functionalityC-store businesses operated in the continental United States.

Non-Compete and Non-Solicit. Seller hereby acknowledges (a) Employer and Employee acknowledge and agree that Seller is familiar in performing the duties and responsibilities of his employment with the CompanyEmployer, Employee has occupied a position of fiduciary trust and confidence, pursuant to which Employee has developed and acquired a wide experience and knowledge with respect to all aspects of the Business carried on by the Employer, and the manner in which such Business is conducted. It is the express intent and agreement of Employee and the Employer that such knowledge and experience shall not be used in any manner detrimental to the Employer’s Trade Secretsbusiness by Employee. (b) Employer and Employee further acknowledge and agree that in performing the duties and responsibilities of employment, customer information Employee became knowledgeable with respect to a wide variety of Confidential Information which is the exclusive property of the Employer, the disclosure of which may cause irreparable harm to the Employer. Employee therefore agrees following the termination of Employee’s employment, Employee shall treat confidentially all Confidential Information belonging to the Employer. (c) For the period beginning on the Termination Date and continuing through and including December 31, 2019, Employee acknowledges and agrees that he shall not for any reason, either directly or indirectly (without the prior written consent of the Employer ), anywhere the Employer’s business operates at the time of the employment termination: (i) hold a 5% or greater equity (including stock options whether or not exercisable), voting or profit participation interest in a Competitive Enterprise, or (ii) associate (including as a director, officer, employee, partner, consultant, agent or advisor) with a Competitive Enterprise and in connection with the Employee’s association engage, or directly or indirectly manage or supervise personnel engaged, in any activity that: (1) is substantially related to any activity that the Employee was engaged in with the Employer during the twelve (12) months prior to the Effective Date of this Agreement; (2) calls for the application of specialized knowledge or skills substantially related to those used by the Employee in his activities with the Employer or any of its affiliates; or (3) is substantially related to any activity for which the Employee had direct or indirect managerial or supervisory responsibility with the Employer. (d) For the period beginning on the Termination Date and continuing for a period of two (2) years, Employee acknowledges and agrees that he shall not for any reason, either directly or indirectly (without the prior written consent of the Employer ) acting alone or in conjunction with others (i) solicit, induce, attempt to influence, any employee of the Employer to terminate employment; or (ii) participate in or be aware of prior to or in advance of any hiring, employment or retaining in any capacity, at a business in which Employee becomes a director, officer or employee of or consultant to, (a) of any active employee of the Employer; or (b) of any employee who was actively employed by the Employer within the previous six (6) months of the date of this Agreement. This restriction will be inapplicable to (i) employees separated from employment with SUN in connection with the divestiture of company-owned retail store locations; or (ii) employees terminated by SUN in connection with any restructuring efforts related to the strategic shift from a retail business to a wholesale and distribution business. (e) Employee specifically recognizes and affirms that the provisions of Section 6 are material and essential terms of this Agreement. Employee further acknowledges and agrees that if the non-competition provision found in Section 6(c) or the non-solicit provision found in Section 6(d) is determined to be invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction in an action between Employee and Employer, then Employer shall be entitled to receive from Employee all Restrictive Covenant Units held by Employee. In the Event Employee has sold any or all of the Restrictive Covenant Units obtained under this Agreement, then Employer shall be entitled to receive from Employee a payment equal to the fair market value of the Restrictive Covenant Units on the date of sale, transfer or other Confidential Information. Seller disposition. (f) Employee acknowledges and agrees that the Company would be irreparably damaged Employer will suffer irreparable harm if Seller were to provide services to or otherwise participate in Employee breaches any of the business of any Person competing with the Company in violation of obligations under this Section 7.5 and that any such competition by Seller would result in a significant loss of goodwill by Purchaser and its affiliates. Seller further acknowledges and agrees that the covenants and agreements set forth in this Section 7.5 were a material inducement to Purchaser to enter into this Agreement and to perform its obligations hereunder6, and that Purchaser monetary damages would not obtain be impossible to quantify and inadequate to compensate the benefit Employer for such a breach. Accordingly, Employee agrees that in the event of the bargain set forth in this Agreement as specifically negotiated a breach by the parties hereto if Seller Breached Employee of any of the provisions of this Section 7.5. Therefore6, the Employer shall be entitled to seek, in further consideration addition to any other rights, remedies or damages available to the Employer at law or in equity, a temporary and permanent injunction, without having to prove damages, in order to prevent or restrain any such breach, by Employee, or by any or all of the amounts to be paid hereunder for the Interests Employee’s partners, employers, employees, servants, agents, representatives and the goodwill of the Company sold by Seller: (a) Seller agrees that from and after the Closing and until the fourth (4th) anniversary of the Closing (the “Restricted Period”), Seller shall not, anywhere in the Restricted Territories, any other Persons directly or indirectly own, manage, control, participate in, consult with, render services acting for, or in any other manner engage in any business that is competitive with the Competitive Business (other than for or on behalf of the Company of, or Purchaser); provided that nothing herein shall prohibit Seller from being a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded so long as such Seller has no active participation in the business of such corporation. Seller acknowledges that the Company’s business has been conducted or is presently proposed to be conducted throughout the Restricted Territories concert with, Employee, and that the geographic Employer shall be entitled to seek all of its costs and expenses incurred in obtaining such relief including reasonable attorneys’ and client legal costs and disbursements. (g) Employee hereby agrees that all restrictions set forth above contained in this Section 6 are reasonable reasonable, valid and necessary to protect the Employer’s Confidential Information, goodwill and proprietary business interests. Employee further agrees never to file any lawsuit, claim or counterclaim challenging or otherwise seeking to modify or restrict the noncompetition provision set forth in Section 6(c) of the Company’s business being sold by Seller pursuant to this Agreement. “Competitive Business” Nevertheless, if any of the aforesaid restrictions is found by a court having jurisdiction to be unreasonable, over broad as to geographic area or time or otherwise unenforceable, the Parties intend for the restrictions therein set forth to be modified by such court so as to be reasonable and enforceable and, as so modified by the court, to be fully enforced. If any covenant or provision of this Section 6 is determined to be void or unenforceable in whole or in part, for any reason, it shall mean the Company Business as at the Closing Date and the Company Products or Services as at the Closing Date; provided, that, notwithstanding the foregoing, (i) the Excluded Business shall not be deemed not to be competitive with affect or impair the Competitive Business and (ii) software applications that include imbedded Basic Organizational Charting Functionality (as defined below) shall not be deemed competitive with the Competitive Business solely to the extent that such imbedded organizational charting functionality (A) is not separable from the application and may only be accessed from within the broader application, (B) is not included in applications that are competitive with the Company Business, Company Products validity of any other covenant or Services, and (C) represents ten percent (10%) or less of the total value of the application based on third party pricing of comparable stand-alone products. For purposes provision of this Agreement, which shall remain in full force and effect. The provisions of this Section 6 shall remain in full force and effect notwithstanding the term termination of this Agreement for any reason. (h) For the purposes of this Section 6, “Basic Organizational Charting FunctionalityCompetitive Enterprise” shall mean functionality any business enterprise that permits either (A) engages in any material activity that directly competes within any material geographical location in which the Employer or any of its affiliates operates with any material activity that the Employer or any of its affiliates is then engaged in or (B) holds a user to create 5% or greater equity, voting or profit participation interest in any enterprise that engages in such a basic branch structured organizational chart solely to display a hierarchical view competitive activity. For the avoidance of relationships among employees within an organization and that does doubt, after the closing of the divestiture of the company owned retail stores is completed, the term Competitive Enterprise shall expressly not include any workforce modeling retail or planning, succession planning, transition management or significant analytics functionalityC-store businesses in the continental United States.

Non-Compete and Non-Solicit. Seller 2.1 The Employee hereby acknowledges undertakes and ensures that Seller is familiar all business opportunities known to him or made known to him at any time, with respect to and/or connected with the business of the Company are referred to the Board and shall be undertaken in any other company only if the Board does not avail of such opportunity, in which event the Employee may undertake the said business opportunity through any other entity provided that in so undertaking the said business opportunity, the Employee shall, at all times, ensure that the time spent by him on such other business opportunity not taken up by the Company shall not impede the performance of his services to the Company’s Trade Secrets, customer information and with other Confidential Information. Seller acknowledges . 2.2 The Employee covenants and agrees that during the subsistence of this Agreement, he/she shall not, directly or indirectly attempt in any manner to solicit from any client/customer, except on behalf of the Company, business of the type carried on by the Company would or to persuade any person, firm or entity which is a client/customer of the Company to cease doing business or to reduce the amount of business which any such client/customer has customarily done or might propose doing with the Company whether or not the relationship between the Company and such client/customer was originally established in whole or in part through his or its efforts. 2.3 The Employee shall make full and true disclosure in writing to the Company of any direct or indirect interest or benefit that he/she has derived or is likely to derive through or in connection with any contractual arrangements, dealings, transactions or affairs of the Company, or any transactions which are likely to be irreparably damaged if Seller were detrimental to provide the Company. 2.4 The Employee acknowledges that the services he is to render to the Company are of a special and unusual character, with a unique value to the Company, the loss of which cannot adequately be compensated by damages or an action at law. In view of the unique value to the Company of his services for which the Company has contracted hereunder, because of the confidential information to be obtained by, or disclosed to, the Employee covenants and agrees that during the term of employment and during the for a period of one year thereafter but subject to clause 2.1 above, the Employee shall not, directly or indirectly, enter into the employment of, tender consulting or other services to, acquire any interest in (whether for the Employee’s own account as an individual proprietor, or as a partner, associate, stockholder, officer, director, trustee or otherwise), or otherwise participate in any business that competes, directly or indirectly, with any of the companies or entities (i) in the same lines of business that the Company is engaged in at the time the Employee’s employment is terminated. 2.5 During and for one year following termination of employment (i) the Employee may not solicit, encourage, or induce or attempt to solicit, encourage, or induce any Person competing (A) current employee, marketing agent, or consultant of the Company to terminate his or her employment, agency, or consultancy with the Company in violation of this Section 7.5 and that or any such competition by Seller would result in a significant loss of goodwill by Purchaser and its affiliates. Seller further acknowledges and agrees that the covenants and agreements set forth in this Section 7.5 were a material inducement to Purchaser to enter into this Agreement and to perform its obligations hereunder, and that Purchaser would not obtain the benefit of the bargain set forth in this Agreement as specifically negotiated by the parties hereto if Seller Breached the provisions of this Section 7.5. Therefore, in further consideration of the amounts to be paid hereunder for the Interests and the goodwill of (B) prospective employee with whom the Company sold by Seller: (a) Seller agrees that from and after has had discussions or negotiations within six months prior to the Closing and until the fourth (4th) anniversary Employee’s termination of the Closing (the “Restricted Period”), Seller shall not, anywhere in the Restricted Territories, directly or indirectly own, manage, control, participate in, consult with, render services for, or in any other manner engage in any business that is competitive employment not to establish a relationship with the Competitive Business Company, (other than for ii) induce or on behalf attempt to induce any current customer to terminate its relationship with any of the Company or Purchaser); provided that nothing herein shall prohibit Seller from being (iii) induce any potential customer with whom the Company has had discussions or negotiations within [six months] prior to the Employee’s termination of employment not to establish a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded so long as such Seller has no active participation in the business of such corporation. Seller acknowledges that relationship with the Company’s business has been conducted or is presently proposed to be conducted throughout the Restricted Territories and that the geographic restrictions set forth above are reasonable and necessary to protect the goodwill of the Company’s business being sold by Seller pursuant to this Agreement. “Competitive Business” shall mean the Company Business as at the Closing Date and the Company Products or Services as at the Closing Date; provided, that, notwithstanding the foregoing, (i) the Excluded Business shall not be deemed to be competitive with the Competitive Business and (ii) software applications that include imbedded Basic Organizational Charting Functionality (as defined below) shall not be deemed competitive with the Competitive Business solely to the extent that such imbedded organizational charting functionality (A) is not separable from the application and may only be accessed from within the broader application, (B) is not included in applications that are competitive with the Company Business, Company Products or Services, and (C) represents ten percent (10%) or less of the total value of the application based on third party pricing of comparable stand-alone products. For purposes of this Agreement, the term “Basic Organizational Charting Functionality” shall mean functionality that permits a user to create a basic branch structured organizational chart solely to display a hierarchical view of relationships among employees within an organization and that does not include any workforce modeling or planning, succession planning, transition management or significant analytics functionality.

Non-Compete and Non-Solicit. Seller hereby acknowledges (a) Employer and Employee acknowledge and agree that Seller is familiar in performing the duties and responsibilities of his employment with the CompanyEmployer, Employee has occupied a position of fiduciary trust and confidence, pursuant to which Employee has developed and acquired a wide experience and knowledge with respect to all aspects of the Business carried on by the Employer, and the manner in which such Business is conducted. It is the express intent and agreement of Employee and the Employer that such knowledge and experience shall not be used in any manner detrimental to the Employer’s Trade Secretsbusiness by Employee. (b) Employer and Employee further acknowledge and agree that in performing the duties and responsibilities of employment, customer information Employee became knowledgeable with respect to a wide variety of Confidential Information which is the exclusive property of the Employer, the disclosure of which may cause irreparable harm to the Employer. Employee therefore agrees following the termination of Employee’s employment, Employee shall treat confidentially all Confidential Information belonging to the Employer. (c) For the period beginning on the Termination Date and continuing through and including December 31, 2020, Employee acknowledges and agrees that he shall not for any reason, either directly or indirectly (without the prior written consent of the Employer), anywhere the Employer’s business operates at the time of the employment termination: (i) hold a 5% or greater equity (including stock options whether or not exercisable), voting or profit participation interest in a Competitive Enterprise, or (ii) associate (including as a director, officer, employee, partner, consultant, agent or advisor) with a Competitive Enterprise and in connection with the Employee’s association engage, or directly or indirectly manage or supervise personnel engaged, in any activity that: (1) is substantially related to any activity that the Employee was engaged in with the Employer during the twelve (12) months prior to the Effective Date of this Agreement; (2) calls for the application of specialized knowledge or skills substantially related to those used by the Employee in his activities with the Employer or any of its affiliates; or (3) is substantially related to any activity for which the Employee had direct or indirect managerial or supervisory responsibility with the Employer. (d) For the period beginning on the Effective Date and continuing until December 31, 2020, Employee acknowledges and agrees that he shall not for any reason, either directly or indirectly (without the prior written consent of the Employer ) acting alone or in conjunction with others (i) solicit, induce, attempt to influence, any employee of the Employer to terminate employment; or (ii) participate in or be aware of prior to or in advance of any hiring, employment or retaining in any capacity, at a business in which Employee becomes a director, officer or employee of or consultant to, (a) of any active employee of the Employer; or (b) of any employee who was actively employed by the Employer within the previous six (6) months of the date of this Agreement. This restriction will be inapplicable to (i) employees separated from employment with SUN in connection with the divestiture of company-owned retail store locations; or (ii) employees terminated by SUN in connection with any restructuring efforts related to the strategic shift from a retail business to a wholesale and distribution business. (e) Employee specifically recognizes and affirms that the provisions of Section 6 are material and essential terms of this Agreement. Employee further acknowledges and agrees that if the non-competition provision found in Section 6(c) or the non-solicit provision found in Section 6(d) is determined to be invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction in an action between Employee and Employer, then Employer shall be entitled to receive from Employee all Restrictive Covenant Units held by Employee. In the Event Employee has sold any or all of the Restrictive Covenant Units obtained under this Agreement, then Employer shall be entitled to receive from Employee a payment equal to the fair market value of the Restrictive Covenant Units on the date of sale, transfer or other Confidential Information. Seller disposition. (f) Employee acknowledges and agrees that the Company would be irreparably damaged Employer will suffer irreparable harm if Seller were to provide services to or otherwise participate in Employee breaches any of the business of any Person competing with the Company in violation of obligations under this Section 7.5 and that any such competition by Seller would result in a significant loss of goodwill by Purchaser and its affiliates. Seller further acknowledges and agrees that the covenants and agreements set forth in this Section 7.5 were a material inducement to Purchaser to enter into this Agreement and to perform its obligations hereunder6, and that Purchaser monetary damages would not obtain be impossible to quantify and inadequate to compensate the benefit Employer for such a breach. Accordingly, Employee agrees that in the event of the bargain set forth in this Agreement as specifically negotiated a breach by the parties hereto if Seller Breached Employee of any of the provisions of this Section 7.5. Therefore6, the Employer shall be entitled to seek, in further consideration addition to any other rights, remedies or damages available to the Employer at law or in equity, a temporary and permanent injunction, without having to prove damages, in order to prevent or restrain any such breach, by Employee, or by any or all of the amounts to be paid hereunder for the Interests Employee’s partners, employers, employees, servants, agents, representatives and the goodwill of the Company sold by Seller: (a) Seller agrees that from and after the Closing and until the fourth (4th) anniversary of the Closing (the “Restricted Period”), Seller shall not, anywhere in the Restricted Territories, any other Persons directly or indirectly own, manage, control, participate in, consult with, render services acting for, or in any other manner engage in any business that is competitive with the Competitive Business (other than for or on behalf of the Company of, or Purchaser); provided that nothing herein shall prohibit Seller from being a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded so long as such Seller has no active participation in the business of such corporation. Seller acknowledges that the Company’s business has been conducted or is presently proposed to be conducted throughout the Restricted Territories concert with, Employee, and that the geographic Employer shall be entitled to seek all of its costs and expenses incurred in obtaining such relief including reasonable attorneys’ and client legal costs and disbursements. (g) Employee hereby agrees that all restrictions set forth above contained in this Section 6 are reasonable reasonable, valid and necessary to protect the Employer’s Confidential Information, goodwill and proprietary business interests. Employee further agrees never to file any lawsuit, claim or counterclaim challenging or otherwise seeking to modify or restrict the noncompetition provision set forth in Section 6(c) of the Company’s business being sold by Seller pursuant to this Agreement. “Competitive Business” Nevertheless, if any of the aforesaid restrictions is found by a court having jurisdiction to be unreasonable, over broad as to geographic area or time or otherwise unenforceable, the Parties intend for the restrictions therein set forth to be modified by such court so as to be reasonable and enforceable and, as so modified by the court, to be fully enforced. If any covenant or provision of this Section 6 is determined to be void or unenforceable in whole or in part, for any reason, it shall mean the Company Business as at the Closing Date and the Company Products or Services as at the Closing Date; provided, that, notwithstanding the foregoing, (i) the Excluded Business shall not be deemed not to be competitive with affect or impair the Competitive Business and (ii) software applications that include imbedded Basic Organizational Charting Functionality (as defined below) shall not be deemed competitive with the Competitive Business solely to the extent that such imbedded organizational charting functionality (A) is not separable from the application and may only be accessed from within the broader application, (B) is not included in applications that are competitive with the Company Business, Company Products validity of any other covenant or Services, and (C) represents ten percent (10%) or less of the total value of the application based on third party pricing of comparable stand-alone products. For purposes provision of this Agreement, which shall remain in full force and effect. The provisions of this Section 6 shall remain in full force and effect notwithstanding the term termination of this Agreement for any reason. (h) For the purposes of this Section 6, “Basic Organizational Charting FunctionalityCompetitive Enterprise” shall mean functionality any business enterprise that permits either (A) engages in any material activity that directly competes within any material geographical location in which the Employer or any of its affiliates operates with any material activity that the Employer or any of its affiliates is then engaged in or (B) holds a user to create 5% or greater equity, voting or profit participation interest in any enterprise that engages in such a basic branch structured organizational chart solely to display a hierarchical view competitive activity. For the avoidance of relationships among employees within an organization and that does doubt, the term Competitive Enterprise shall expressly not include any workforce modeling retail or planning, succession planning, transition management or significant analytics functionalityC-store businesses operated in the continental United States.