PUBLIC POLICY, THE PROVISIONS OF THIS
ARTICLE SHALL BE CONSIDERED DIVISIBLE BOTH AS TO TIME AND AS TO GEOGRAPHICAL
AREA; AND EACH MONTH OF EACH YEAR OF THE SPECIFIED PERIOD SHALL BE DEEMED TO BE
A SEPARATE PERIOD OF TIME.
IN THE EVENT ANY TRIBUNAL DETERMINES THE SPECIFIED
TIME PERIOD OR GEOGRAPHICAL AREA TO BE UNREASONABLE, ARBITRARY OR AGAINST PUBLIC
POLICY, A LESSER TIME PERIOD OR GEOGRAPHICAL AREA TO BE UNREASONABLE, ARBITRARY
OR AGAIN PUBLIC POLICY, A LESSER TIME PERIOD OR GEOGRAPHICAL AREA WHICH IS
DETERMINED TO BE REASONABLE, NON-ARBITRARY AND NOT AGAINST PUBLIC POLICY MAY BE
ENFORCED.
(C)
REFORMATION.
THE PARTIES INTEND THAT ALL PROVISIONS OF THIS
AGREEMENT ARE TO BE ENFORCED TO THE EXTENT PERMITTED BY LAW.
ACCORDINGLY,
SHOULD ANY TRIBUNAL DETERMINE THAT THE TIME DURATION OR GEOGRAPHIC SCOPE OF ANY
PROVISION OF THIS AGREEMENT IS TOO LONG OR TOO BROAD TO BE ENFORCED AS WRITTEN,
THE PARTIES INTEND THAT SUCH TRIBUNAL REFORM THE PROVISION TO SUCH NARROWER
SCOPE, TO THE MAXIMUM EXTENT ALLOWABLE, AS IT DETERMINED TO BE ENFORCEABLE.
(D)
REMEDIES.
IF ANY ONE OR MORE OF THE RESTRAINED PARTIES BREACHES
THE COVENANTS SET FORTH IN SECTION 5.7 OF THIS AGREEMENT, PURCHASER SHALL BE
ENTITLED TO THE FOLLOWING REMEDIES AGAINST SUCH BREACHING PARTY:
(I)
DAMAGES.
MONEY DAMAGES IN THE AMOUNT OF ANY DAMAGES INCURRED BY
PURCHASER AS A RESULT OF THE BREACH TO THE EXTENT THAT DAMAGES ARE PROVEN TO A
COMPETENT TRIBUNAL, BUT ONLY TO THE EXTENT SUCH DAMAGES ARE THE RESULT OF A
BREACH OF THE COVENANTS SET FORTH IN SECTION 5.7 THAT HAVE EXISTED MORE THAN 180
DAYS PRIOR TO PURCHASER'S ACTUAL KNOWLEDGE OF SUCH BREACH;
(II)
INJUNCTIVE RELIEF.
THE RESTRAINED PARTIES ACKNOWLEDGE AND
RECOGNIZE THAT A VIOLATION OF THIS AGREEMENT WILL CAUSE IRREPARABLE AND
SUBSTANTIAL DAMAGE AND HARM TO PURCHASER AND CONSTITUTE A FAILURE OF
CONSIDERATION, AND PURCHASER WILL HAVE NO ADEQUATE REMEDY AT LAW FOR SUCH
VIOLATION, AND THAT PURCHASER SHALL BE ENTITLED AS A MATTER OF RIGHT TO SPECIFIC
PERFORMANCE, A TEMPORARY RESTRAINING ORDER AND PRELIMINARY AND PERMANENT
INJUNCTION FROM A COURT OF COMPETENT JURISDICTION, RETRAINING ANY FURTHER SUCH
VIOLATION, ALL WITHOUT HAVING TO POST ANY BOND, AND WHICH RIGHT TO
24
INJUNCTIVE RELIEF SHALL BE CUMULATIVE AND IN ADDITION TO PURCHASER'S RIGHT TO
DAMAGES AT LAW AS SET FORTH IN SECTION 5.7(D)(I).
(E)
TERM EXTENSION.
IF ANY ONE OR MORE OF THE RESTRAINED PARTIES
MATERIALLY BREACHES ANY PROVISION OF THIS SECTION 5.7, THE SELLER NON-COMPETE
TERM WITH RESPECT TO EACH MATERIALLY BREACHING RESTRAINED PARTY SHALL BE
EXTENDED FOR THE LENGTH OF TIME DURING WHICH SUCH PARTY IS IN BREACH, WITHOUT
THE PAYMENT OF ANY ADDITIONAL CONSIDERATION BY PURCHASER, BUT IN NO EVENT SHALL
THE SELLER NON-COMPETE TERM EXTEND BEYOND FIVE (5) YEARS FOLLOWING THE CLOSING
DATE.
5.8
[RESERVED]
5.9
POST-CLOSING RECEIVABLES RECONCILIATION.
(A)
AS RECEIVABLES OF THE TRANSFERRED BUSINESS ARE ISSUED AS OF THE
LAST DAY OF EACH CALENDAR MONTH, ANY RECEIVABLE, OR PORTION THEREOF, FOR
SERVICES RENDERED PRIOR TO THE CLOSING DATE, ARE AND SHALL REMAIN THE PROPERTY