Common use of Non-Competition Provisions; Restrictive Covenants Clause in Contracts

Non-Competition Provisions; Restrictive Covenants. (a) From the Distribution Date until the date that is three (3) years after the Distribution Date, SpinCo will not, and will cause its controlled Affiliates not to, without the prior written consent of Parent, (i) market or sell any Hollow Fiber Membrane products, including panels, arrangement of panels, assemblies, devices, and systems incorporating the Hollow Fiber Membrane in the Parent Cooling Field or (ii) make, market or sell any Industrial Adhesives for inclusion in third party products, provided, however, that SpinCo can make, market, or sell (a) Medical Device Assembly Products first commercialized before the Distribution Date if the applicable Industrial Adhesive is sourced from the Parent Group, and (b) Medical Device Assembly Products first commercialized after the Distribution Date, whether the applicable Industrial Adhesive is sourced from the Parent Group, internally or from a third party (provided, for the avoidance of doubt, nothing in this Section 5.7(a) creates or expands any rights to use any Intellectual Property Rights of the Parent Group). Additionally, SpinCo can make, market and sell the products listed in Schedule 5.7(a) (such products, “Approved Industrial Adhesives”) incorporating Industrial Adhesives sourced from Parent. SpinCo agrees that, until the date that is three (3) years after the Distribution Date, no Third Party may acquire any SpinCo Assets that are relevant to the restrictions set forth in the first sentence of this Section 5.7(a) unless such Third Party agrees to remain subject to such restrictions with respect to the acquired SpinCo Assets, and delivers an enforceable commitment to Parent with respect to such agreement, in a form reasonably acceptable to Parent, no later than the date of the closing of such acquisition. SpinCo agrees to notify Parent promptly upon entering into any definitive agreement for any transaction subject to the immediately preceding sentence. (b) From the Distribution Date until the date that is three (3) years after the Distribution Date, Parent will not, and will cause its controlled Affiliates not to, without the prior written consent of SpinCo, (i) market or sell any Hollow Fiber Membrane products, including panels, arrangement of panels, assemblies, devices, and systems incorporating the Hollow Fiber Membrane in the SpinCo Field or (ii) make, market or sell any Medical Grade Adhesives or Medical Grade Films, provided, however, that Parent can make, market or sell (a) Medical Grade Adhesives or Medical Grade Films for incorporation into finished goods that Parent’s consumer health business supplies to third parties or (b) finished goods that incorporate Medical Grade Adhesives or Medical Grade Films. Parent agrees that, until the date that is three (3) years after the Distribution Date, no Third Party may acquire any Parent Assets that are relevant to the restrictions set forth in the first sentence of this Section 5.7(b) unless such Third Party agrees to remain subject to such restrictions with respect to the acquired Parent Assets, and delivers an enforceable commitment to SpinCo with respect to such agreement, in a form reasonably acceptable to SpinCo, no later than the date of the closing of such acquisition. Xxxxxx agrees to notify SpinCo promptly upon entering into any definitive agreement for any transaction subject to the immediately preceding sentence. (c) The prohibitions in Section 5.7(a) and Section 5.7(b) above shall not apply to: (i) any acquisition, merger, business combination, or similar transaction by Parent or SpinCo or any of their respective Subsidiaries of all or any part of a business or Person that is engaged, prior to such transaction, in activities in which Parent or SpinCo is prohibited from engaging pursuant to paragraph (a) or (b), where such acquired business or Person’s revenue in respect of such activities represented no more than ten percent (10%) of the aggregate consolidated revenues of such acquired business or Person, as applicable, for such acquired business’s or Person’s most recently completed fiscal year; (ii) the ownership by Parent or SpinCo or any of their respective Subsidiaries, directly or indirectly, of less than five percent (5%) of any class of securities of any Person traded on a national or international securities exchange; (iii) any investment by Parent or SpinCo or any of their respective Subsidiaries in any Person pursuant to which Parent or SpinCo or any such investing Subsidiary does not have the right to control the operations or scope of business conducted by such Person, and any activities conducted by such Person; or (iv) the performance by Parent or SpinCo or any of their respective Subsidiaries of their respective obligations under any Ancillary Agreement, provided that this clause (iv) shall not permit Parent, SpinCo or any of their Subsidiaries to engage in an activity prohibited by Section 5.7(a) or Section 5.7(b) through a Third Party unless expressly permitted or required by the terms of the applicable Ancillary Agreement. (d) Parent and SpinCo acknowledge that the covenants set forth in Section 5.7(a) and Section 5.7(b) are reasonable in order to protect the value of the Parent Business or the SpinCo Business, as applicable. It is the intention of the Parties that if any restriction or covenant contained in Section 5.7(a) or Section 5.7(b) covers a geographical area, is for a length of time or is of a scope that is not permitted by applicable Law, or in any way construed to be too broad or to any extent invalid, such restriction or covenant will not be construed to be null, void and of no effect, but will, to the extent such restriction or covenant would be valid or enforceable under applicable Law, be construed and interpreted to provide for a covenant having the maximum enforceable geographic area, time period and other provisions (not greater than those contained in Section 5.7(a) or Section 5.7(b), as applicable) that would be valid and enforceable under such applicable Law, and such restrictions or covenants will be enforceable as so modified. It is the desire and intent of Parent and SpinCo that the provisions of Section 5.7(a) and Section 5.7(b) be enforced to the fullest extent permissible under applicable Law. Therefore, the parties agree that money damages would not be a sufficient remedy for any threatened or actual breach of Section 5.7(a) or Section 5.7(b) and that, in addition to all other remedies it may be entitled to, the non-breaching party will be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. (e) No product produced, sold, marketed, distributed or supplied by any member of the SpinCo Group that (x) is supplied or distributed by a member of the Parent Group pursuant to any Ancillary Agreement or (y) includes anywhere on such product, or on any of the related labels, packaging, instructions, specifications, or similar materials, any Parent Group Trademark, logo, brand or similar marking , may be marketed, labeled, publicized, or otherwise promoted or characterized as having any mitigation, abatement, filtration or removal-related capability with respect to, or usage or certification related to, any form of PFAS. The foregoing prohibition shall similarly prohibit the SpinCo Group from making or maintaining any references to any such prohibited information with respect to an applicable product, in each case in any form accessible to the public and associated with such product (including a product website, or any certification database maintained by a third party based on testing requested or authorized by a member of the SpinCo Group). (f) Parent is planning to exit, and to cause its Subsidiaries to exit, the manufacture and supply of products consisting of, containing, or manufactured with the aid of, PFAS (such products, “PFAS Products”). SpinCo is fully aware of this planned exit. Notwithstanding any other provision in this Agreement or any other Ancillary Agreement, including any forecast, order, terms and conditions, or other documents exchanged between the Parties, Parent or any member or the Parent Group may, without any liability whatsoever, discontinue or suspend the manufacturing, distribution or supply of any PFAS Products at any time or offer to substitute such PFAS Products with reformulated products to remove the use of PFAS at Parent’s election (it being understood that SpinCo may reject such substitution offer in its sole discretion), subject in the event of any such discontinuation, suspension or substitution to giving such advance prior notice that Parent deems reasonable under the circumstances (which, for the avoidance of doubt, may be less than the notice periods required pursuant to Section 3.4(a) of the applicable Supply Agreement, or may be no notice at all if Parent determines that providing notice is not practical under the circumstances) to such discontinuation, suspension or substitution. SpinCo and its Affiliates may not, under any circumstances, attempt to pull orders or quantities of PFAS Products forward or otherwise build inventory that exceeds SpinCo’s and its Affiliates’ actual consumption in the relevant quarter. Parent’s rights hereunder expressly include that Parent and any member of the Parent Group may discontinue or reduce the quantity of PFAS Products available in its complete and sole discretion at any time upon such advance prior notice that Parent deems reasonable under the circumstances (which, for the avoidance of doubt, may be less than the notice periods required pursuant to Section 3.4(a) of the applicable Supply Agreement or may be no notice at all if Parent determines that providing notice is not practical under the circumstances), including reducing or rejecting the quantities identified in forecasts or orders, even if previously accepted.

Non-Competition Provisions; Restrictive Covenants. (a) From the Distribution Date until the date that is three (3) years after the Distribution Date, SpinCo will not, and will cause its controlled Affiliates not to, without the prior written consent of Parent, (i) market or sell any Hollow Fiber Membrane products, including panels, arrangement of panels, assemblies, devices, and systems incorporating the Hollow Fiber Membrane in the Parent Cooling Field or (ii) make, market or sell any Industrial Adhesives for inclusion in third party products, provided, however, that SpinCo can make, market, or sell (a) Medical Device Assembly Products first commercialized before the Distribution Date if the applicable Industrial Adhesive is sourced from the Parent Group, and (b) Medical Device Assembly Products first commercialized after the Distribution Date, whether the applicable Industrial Adhesive is sourced from the Parent Group, internally or from a third party (provided, for the avoidance of doubt, nothing in this Section 5.7(a) creates or expands any rights to use any Intellectual Property Rights of the Parent Group). Additionally, SpinCo can make, market and sell the products listed in Schedule 5.7(a) (such products, “Approved Industrial Adhesives”) incorporating Industrial Adhesives sourced from Parent. SpinCo agrees that, until the date that is three (3) years after the Distribution Date, no Third Party may acquire any SpinCo Assets that are relevant to the restrictions set forth in the first sentence of this Section 5.7(a) unless such Third Party agrees to remain subject to such restrictions [with respect to the acquired SpinCo Assets], and delivers an enforceable commitment to Parent with respect to such agreement[, in a form reasonably acceptable to Parent, ,] no later than the date of the closing of such acquisition. SpinCo agrees to notify Parent promptly upon entering into any definitive agreement for any transaction subject to the immediately preceding sentence. (b) From the Distribution Date until the date that is three (3) years after the Distribution Date, Parent will not, and will cause its controlled Affiliates not to, without the prior written consent of SpinCo, (i) market or sell any Hollow Fiber Membrane products, including panels, arrangement of panels, assemblies, devices, and systems incorporating the Hollow Fiber Membrane in the SpinCo Field or (ii) make, market or sell any Medical Grade Adhesives or Medical Grade Films, provided, however, that Parent can make, market or sell (a) Medical Grade Adhesives or Medical Grade Films for incorporation into finished goods that Parent’s consumer health business supplies to third parties or (b) finished goods that incorporate Medical Grade Adhesives or Medical Grade Films. Parent agrees that, until the date that is three (3) years after the Distribution Date, no Third Party may acquire any Parent Assets that are relevant to the restrictions set forth in the first sentence of this Section 5.7(b) unless such Third Party agrees to remain subject to such restrictions [with respect to the acquired Parent Assets], and delivers an enforceable commitment to SpinCo with respect to such agreement[, in a form reasonably acceptable to SpinCo, ,] no later than the date of the closing of such acquisition. Xxxxxx agrees to notify SpinCo promptly upon entering into any definitive agreement for any transaction subject to the immediately preceding sentence. (c) The prohibitions in Section 5.7(a) and Section 5.7(b) above shall not apply to: (i) any acquisition, merger, business combination, or similar transaction by Parent or SpinCo or any of their respective Subsidiaries of all or any part of a business or Person that is engaged, prior to such transaction, in activities in which Parent or SpinCo is prohibited from engaging pursuant to paragraph (a) or (b), where such acquired business or Person’s revenue in respect of such activities represented no more than ten percent (10%) of the aggregate consolidated revenues of such acquired business or Person, as applicable, for such acquired business’s or Person’s most recently completed fiscal year; (ii) the ownership by Parent or SpinCo or any of their respective its Subsidiaries, directly or indirectly, of less than five percent (5%) of any class of securities of any Person traded on a national or international securities exchange; (iii) any investment by Parent or SpinCo or any of their respective Subsidiaries in any Person pursuant to which Parent or SpinCo or any such investing Subsidiary does not have the right to control the operations or scope of business conducted by such Person, and any activities conducted by such Person; or (iv) the performance by Parent or SpinCo or any of their respective Subsidiaries of their respective obligations under any Ancillary Agreement, provided that this clause (iv) shall not permit Parent, SpinCo or any of their Subsidiaries to engage in an activity prohibited by Section 5.7(a) or Section 5.7(b) through a Third Party unless expressly permitted or required by the terms of the applicable Ancillary Agreement. (d) Parent and SpinCo acknowledge that the covenants set forth in Section 5.7(aparagraphs (a) and Section 5.7(b(b) are reasonable in order to protect the value of the Parent Business or the SpinCo Business, as applicable. It is the intention of the Parties that if any restriction or covenant contained in Section 5.7(aparagraph (a) or Section 5.7(b(b) covers a geographical area, is for a length of time or is of a scope that is not permitted by applicable Law, or in any way construed to be too broad or to any extent invalid, such restriction or covenant will not be construed to be null, void and of no effect, but will, to the extent such restriction or covenant would be valid or enforceable under applicable Law, be construed and interpreted to provide for a covenant having the maximum enforceable geographic area, time period and other provisions (not greater than those contained in Section 5.7(aparagraph (a) or Section 5.7(b(b), as applicable) that would be valid and enforceable under such applicable Law, and such restrictions or covenants will be enforceable as so modified. It is the desire and intent of Parent and SpinCo that the provisions of Section 5.7(aparagraphs (a) and Section 5.7(b(b) be enforced to the fullest extent permissible under applicable Law. Therefore, the parties agree that money damages would not be a sufficient remedy for any threatened or actual breach of Section 5.7(aparagraph (a) or Section 5.7(bparagraph (b) and that, in addition to all other remedies it may be entitled to, the non-breaching party will be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. (e) No product produced, sold, marketed, distributed or supplied by any member of the SpinCo Group that (x) is supplied or distributed by a member of the Parent Group pursuant to any Ancillary Agreement or (y) includes anywhere on such productSpinCo Product, or on any of the related labels, packaging, instructions, specifications, or similar materials, any Parent Group Trademark, logo, brand or similar marking , may be marketed, labeled, publicized, or otherwise promoted or characterized as having any mitigation, abatement, filtration or removal-related capability with respect to, or usage or certification related to, any form of PFAS. The foregoing prohibition shall similarly prohibit the SpinCo Group from making or maintaining any references to any such prohibited information with respect to an applicable product, in each case in any form accessible to the public and associated with such product (including a product website, or any certification database maintained by a third party based on testing requested or authorized by a member of the SpinCo Group). (f) Parent is planning to exit, and to cause its Subsidiaries to exit, the manufacture and supply of products consisting of, containing, or manufactured with the aid of, PFAS (such products, “PFAS Products”). SpinCo is fully aware of this planned exit. Notwithstanding any other provision in this Agreement or any other Ancillary Agreement, including any forecast, order, terms and conditions, or other documents exchanged between the Parties, Parent or any member or the Parent Group may, without any liability whatsoever, discontinue or suspend the manufacturing, distribution or supply of any PFAS Products at any time or offer to substitute such PFAS Products with reformulated products to remove the use of PFAS at Parent’s election (it being understood that SpinCo may reject such substitution offer in its sole discretion), subject in the event of any such discontinuation, suspension or substitution to giving such advance prior notice that Parent deems reasonable under the circumstances (which, for the avoidance of doubt, may be less than the notice periods required pursuant to Section 3.4(a) of the applicable Supply Agreement, or may be no notice at all if Parent determines that providing notice is not practical under the circumstances) to such discontinuation, suspension or substitution. SpinCo and its Affiliates may not, under any circumstances, attempt to pull orders or quantities of PFAS Products forward or otherwise build inventory that exceeds SpinCo’s and its Affiliates’ actual consumption in the relevant quarter. Parent’s rights hereunder expressly include that Parent and any member of the Parent Group may discontinue or reduce the quantity of PFAS Products available in its complete and sole discretion at any time upon such advance prior notice that Parent deems reasonable under the circumstances (which, for the avoidance of doubt, may be less than the notice periods required pursuant to Section 3.4(a) of the applicable Supply Agreement or may be no notice at all if Parent determines that providing notice is not practical under the circumstances), including reducing or rejecting the quantities identified in forecasts or orders, even if previously accepted.

Non-Competition Provisions; Restrictive Covenants. (a) From the Distribution Date until the date that is three (3) years after the Distribution Date, SpinCo will not, and will cause its controlled Affiliates not to, without the prior written consent of Parent, (i) market or sell any Hollow Fiber Membrane products, including panels, arrangement of panels, assemblies, devices, and systems incorporating the Hollow Fiber Membrane in the Parent Cooling Field or (ii) make, market or sell any Industrial Adhesives for inclusion in third party products, provided, however, that SpinCo can make, market, or sell (a) Medical Device Assembly Products first commercialized before the Distribution Date if the applicable Industrial Adhesive is sourced from the Parent Group, and (b) Medical Device Assembly Products first commercialized after the Distribution Date, whether the applicable Industrial Adhesive is sourced from the Parent Group, internally or from a third party (provided, for the avoidance of doubt, nothing in this Section 5.7(a) creates or expands any rights to use any Intellectual Property Rights of the Parent Group). Additionally, SpinCo can make, market and sell the products listed in Schedule 5.7(a) (such products, “Approved Industrial Adhesives”) incorporating Industrial Adhesives sourced from Parent. SpinCo agrees that, until the date that is three (3) years after the Distribution Date, no Third Party may acquire any SpinCo Assets that are relevant to the restrictions set forth in the first sentence of this Section 5.7(a) unless such Third Party agrees to remain subject to such restrictions with respect to the acquired SpinCo Assets, and delivers an enforceable commitment to Parent with respect to such agreement, in a form reasonably acceptable to Parent, no later than the date of the closing of such acquisition. SpinCo agrees to notify Parent promptly upon entering into any definitive agreement for any transaction subject to the immediately preceding sentence. (b) From the Distribution Date until the date that is three (3) years after the Distribution Date, Parent will not, and will cause its controlled Affiliates not to, without the prior written consent of SpinCo, (i) market or sell any Hollow Fiber Membrane products, including panels, arrangement of panels, assemblies, devices, and systems incorporating the Hollow Fiber Membrane in the SpinCo Field or (ii) make, market or sell any Medical Grade Adhesives or Medical Grade Films, provided, however, that Parent can make, market or sell (a) Medical Grade Adhesives or Medical Grade Films for incorporation into finished goods that Parent’s consumer health business supplies to third parties or (b) finished goods that incorporate Medical Grade Adhesives or Medical Grade Films. Parent agrees that, until the date that is three (3) years after the Distribution Date, no Third Party may acquire any Parent Assets that are relevant to the restrictions set forth in the first sentence of this Section 5.7(b) unless such Third Party agrees to remain subject to such restrictions with respect to the acquired Parent Assets, and delivers an enforceable commitment to SpinCo with respect to such agreement, in a form reasonably acceptable to SpinCo, no later than the date of the closing of such acquisition. Xxxxxx agrees to notify SpinCo promptly upon entering into any definitive agreement for any transaction subject to the immediately preceding sentence. (c) The prohibitions in Section 5.7(a) and Section 5.7(b) above shall not apply to: (i) any acquisition, merger, business combination, or similar transaction by Parent or SpinCo or any of their respective Subsidiaries of all or any part of a business or Person that is engaged, prior to such transaction, in activities in which Parent or SpinCo is prohibited from engaging pursuant to paragraph (a) or (b), where such acquired business or Person’s revenue in respect of such activities represented no more than ten percent (10%) of the aggregate consolidated revenues of such acquired business or Person, as applicable, for such acquired business’s or Person’s most recently completed fiscal year; (ii) the ownership by Parent or SpinCo or any of their respective its Subsidiaries, directly or indirectly, of less than five percent (5%) of any class of securities of any Person traded on a national or international securities exchange; (iii) any investment by Parent or SpinCo or any of their respective Subsidiaries in any Person pursuant to which Parent or SpinCo or any such investing Subsidiary does not have the right to control the operations or scope of business conducted by such Person, and any activities conducted by such Person; or (iv) the performance by Parent or SpinCo or any of their respective Subsidiaries of their respective obligations under any Ancillary Agreement, provided that this clause (iv) shall not permit Parent, SpinCo or any of their Subsidiaries to engage in an activity prohibited by Section 5.7(a) or Section 5.7(b) through a Third Party unless expressly permitted or required by the terms of the applicable Ancillary Agreement. (d) Parent and SpinCo acknowledge that the covenants set forth in Section 5.7(aparagraphs (a) and Section 5.7(b(b) are reasonable in order to protect the value of the Parent Business or the SpinCo Business, as applicable. It is the intention of the Parties that if any restriction or covenant contained in Section 5.7(aparagraph (a) or Section 5.7(b(b) covers a geographical area, is for a length of time or is of a scope that is not permitted by applicable Law, or in any way construed to be too broad or to any extent invalid, such restriction or covenant will not be construed to be null, void and of no effect, but will, to the extent such restriction or covenant would be valid or enforceable under applicable Law, be construed and interpreted to provide for a covenant having the maximum enforceable geographic area, time period and other provisions (not greater than those contained in Section 5.7(aparagraph (a) or Section 5.7(b(b), as applicable) that would be valid and enforceable under such applicable Law, and such restrictions or covenants will be enforceable as so modified. It is the desire and intent of Parent and SpinCo that the provisions of Section 5.7(a) and Section 5.7(b) be enforced to the fullest extent permissible under applicable Law. Therefore, the parties agree that money damages would not be a sufficient remedy for any threatened or actual breach of Section 5.7(a) or Section 5.7(b) and that, in addition to all other remedies it may be entitled to, the non-breaching party will be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. (e) No product produced, sold, marketed, distributed or supplied by any member of the SpinCo Group that (x) is supplied or distributed by a member of the Parent Group pursuant to any Ancillary Agreement or (y) includes anywhere on such productSpinCo Product, or on any of the related labels, packaging, instructions, specifications, or similar materials, any Parent Group Trademark, logo, brand or similar marking , may be marketed, labeled, publicized, or otherwise promoted or characterized as having any mitigation, abatement, filtration or removal-related capability with respect to, or usage or certification related to, any form of PFAS. The foregoing prohibition shall similarly prohibit the SpinCo Group from making or maintaining any references to any such prohibited information with respect to an applicable product, in each case in any form accessible to the public and associated with such product (including a product website, or any certification database maintained by a third party based on testing requested or authorized by a member of the SpinCo Group). (f) Parent is planning to exit, and to cause its Subsidiaries to exit, the manufacture and supply of products consisting of, containing, or manufactured with the aid of, PFAS (such products, “PFAS Products”). SpinCo is fully aware of this planned exit. Notwithstanding any other provision in this Agreement or any other Ancillary Agreement, including any forecast, order, terms and conditions, or other documents exchanged between the Parties, Parent or any member or the Parent Group may, without any liability whatsoever, discontinue or suspend the manufacturing, distribution or supply of any PFAS Products at any time or offer to substitute such PFAS Products with reformulated products to remove the use of PFAS at Parent’s election (it being understood that SpinCo may reject such substitution offer in its sole discretion), subject in the event of any such discontinuation, suspension or substitution to giving such advance prior notice that Parent deems reasonable under the circumstances (which, for the avoidance of doubt, may be less than the notice periods required pursuant to Section 3.4(a) of the applicable Supply Agreement, or may be no notice at all if Parent determines that providing notice is not practical under the circumstances) to such discontinuation, suspension or substitution. SpinCo and its Affiliates may not, under any circumstances, attempt to pull orders or quantities of PFAS Products forward or otherwise build inventory that exceeds SpinCo’s and its Affiliates’ actual consumption in the relevant quarter. Parent’s rights hereunder expressly include that Parent and any member of the Parent Group may discontinue or reduce the quantity of PFAS Products available in its complete and sole discretion at any time upon such advance prior notice that Parent deems reasonable under the circumstances (which, for the avoidance of doubt, may be less than the notice periods required pursuant to Section 3.4(a) of the applicable Supply Agreement or may be no notice at all if Parent determines that providing notice is not practical under the circumstances), including reducing or rejecting the quantities identified in forecasts or orders, even if previously accepted.