OR ANY OF THEIR
RESPECTIVE AFFILIATES.
3
(C)
COVENANTOR ACKNOWLEDGES AND AGREES THAT THE
REMEDY AT LAW FOR ANY BREACH OF ANY OF THE PROVISIONS OF THIS SECTION 2 MAY BE
INADEQUATE AND, ACCORDINGLY, COVENANTOR COVENANTS AND AGREES THAT PARENT SHALL,
IN ADDITION TO ANY OTHER RIGHTS AND REMEDIES WHICH PARENT AND THE COMPANY MAY
HAVE UNDER APPLICABLE LAW, BE ENTITLED TO EQUITABLE RELIEF, INCLUDING INJUNCTIVE
RELIEF, WITHOUT BOND OR OTHER NECESSITY, AND TO THE REMEDY OF SPECIFIC
PERFORMANCE WITH RESPECT TO ANY BREACH OR THREATENED BREACH OF SUCH COVENANT, AS
MAY BE AVAILABLE FROM ANY COURT OF COMPETENT JURISDICTION.
IN ADDITION,
COVENANTOR AND PARENT EXPRESSLY AGREE THAT THE TERMS OF THE COVENANTS, INCLUDING
THE DURATION, SCOPE AND GEOGRAPHIC AREA OF RESTRICTION, IN THIS SECTION 2 ARE
FAIR AND REASONABLE IN LIGHT OF PARENT'S PLANS FOR THE BUSINESS AS CONDUCTED BY
THE COMPANY AND ARE NECESSARY TO ACCOMPLISH THE FULL TRANSFER OF THE GOODWILL
AND OTHER INTANGIBLE ASSETS CONTEMPLATED BY THE MERGER AGREEMENT.
IN THE EVENT
THAT ANY OF THE COVENANTS CONTAINED IN THIS SECTION 2 SHALL BE DETERMINED BY ANY
COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE FOR ANY REASON WHATSOEVER,
THEN ANY SUCH PROVISION OR PROVISIONS SHALL NOT BE DEEMED VOID, AND THE PARTIES
HERETO AGREE THAT SAID LIMITS MAY BE MODIFIED BY THE COURT AND THAT SAID
COVENANT CONTAINED IN THIS SECTION 2 SHALL BE AMENDED IN ACCORDANCE WITH SAID
MODIFICATION, IT BEING SPECIFICALLY AGREED BY THE PARTIES THAT IT IS THEIR
CONTINUING DESIRE THAT THIS COVENANT BE ENFORCED TO THE FULL EXTENT OF ITS TERMS
AND CONDITIONS OR IF A COURT FINDS THE SCOPE OF THE COVENANT UNENFORCEABLE, THE
COURT SHOULD REDEFINE THE COVENANT SO AS TO COMPLY WITH APPLICABLE LAW.
(D)
IN ADDITION TO THE REMEDIES PARENT AND THE
COMPANY MAY SEEK AND OBTAIN PURSUANT TO SECTION 2(C), THE RESTRICTED PERIOD
SHALL BE EXTENDED, REGARDLESS OF WHETHER THE INITIAL PERIOD SET FORTH IN
SECTION 2(A) HAS OTHERWISE EXPIRED, BY ANY AND ALL PERIODS DURING WHICH
COVENANTOR SHALL BE FOUND BY A COURT OF COMPETENT JURISDICTION TO HAVE BEEN IN
VIOLATION OF THE COVENANTS CONTAINED IN THIS SECTION 2.
3.
RESPONSIBILITIES.
PARENT AGREES THAT DURING THE RESTRICTED PERIOD,
COVENANTOR SHALL, SUBJECT TO THE LAST SENTENCE OF THIS SECTION 3, MANAGE THE
BUSINESS AND OPERATIONS OF THE COMPANY AND ITS SUBSIDIARIES WITH THE SAME LEVEL
OF RESPONSIBILITY, CONTROL AND DISCRETION THAT COVENANTOR EXERCISED AT THE TIME
THE MERGER AGREEMENT WAS EXECUTED AND DELIVERED.
IN THE EVENT THAT PARENT FAILS
TO PERMIT COVENANTOR TO EXERCISE SUCH RESPONSIBILITY, CONTROL OR DISCRETION AS
PROVIDED IN THE PRECEDING SENTENCE, COVENANTOR MAY TERMINATE THIS AGREEMENT ON
WRITTEN NOTICE TO PARENT, WHICH TERMINATION SHALL BE COVENANTOR'S SOLE REMEDY
FOR A BREACH OF THIS SECTION 3; PROVIDED, HOWEVER, THAT INQUIRIES OR ACTIONS BY
PARENT OR ITS REPRESENTATIVES RELATED TO THE CONSOLIDATED ACCOUNTS OF PARENT OR
INQUIRIES BY PARENT OR ITS REPRESENTATIVES REGARDING THE BUSINESS AND OPERATIONS
OF THE COMPANY AND ITS SUBSIDIARIES SHALL NOT BE (OR BE DEEMED TO BE) A BREACH
BY