entities other than the Peek Parties and their
Affiliates, and (iv) notwithstanding the above and for avoidance of doubt,
nothing in this Section 2 shall prevent the Peek Parties or their Affiliates
from continuing to conduct the SMI Business as it is currently conducted in the
Jurisdiction.
3.
REMEDIES.
THE PEEK PARTIES AND THE COMPANY ACKNOWLEDGE AND AGREE
THAT, (I) THEY REGARD THE RESTRICTIONS CONTAINED IN SECTION 1 AND SECTION 2 AS
REASONABLE AND DESIGNED TO PROVIDE THE COMPANY WITH LIMITED, LEGITIMATE AND
REASONABLE PROTECTION AGAINST SUBSEQUENT DIMINUTION OF THE VALUE OF THE BUSINESS
ATTRIBUTABLE TO ANY ACTIONS OF THE PEEK PARTIES OR ANY OF ITS AFFILIATES
CONTRARY TO SUCH COVENANTS, AND (II) BECAUSE THE LEGAL REMEDIES OF THE COMPANY
MAY BE INADEQUATE IN THE EVENT OF A BREACH OF, OR OTHER FAILURE TO PERFORM, ANY
OF THE COVENANTS AND OBLIGATIONS SET FORTH IN SECTIONS 1 AND 2, THE COMPANY MAY,
IN ADDITION TO OBTAINING ANY OTHER REMEDY OR RELIEF AVAILABLE TO IT (INCLUDING,
WITHOUT LIMITATION, CONSEQUENTIAL AND OTHER DAMAGES AT LAW), OBTAIN SPECIFIC
ENFORCEMENT OF SECTION 1 AND 2 AND OTHER EQUITABLE REMEDIES.
4.
ENFORCEABILITY.
IF THE FINAL JUDGMENT OF A COURT OF COMPETENT
JURISDICTION DECLARES THAT ANY TERM OR PROVISION OF SECTION 2 IS INVALID OR
UNENFORCEABLE, THE PARTIES AGREE THAT THE COURT MAKING THE DETERMINATION OF
INVALIDITY OR UNENFORCEABILITY SHALL HAVE THE POWER TO REDUCE THE SCOPE,
DURATION, OR AREA OF THE TERM OR PROVISION, TO DELETE SPECIFIC WORDS OR PHRASES,
OR TO REPLACE ANY INVALID OR UNENFORCEABLE TERM OR PROVISION WITH A TERM OR
PROVISION THAT IS VALID AND ENFORCEABLE AND THAT COMES CLOSEST TO EXPRESSING THE
INTENTION OF THE INVALID OR UNENFORCEABLE TERM OR PROVISION, AND THIS AGREEMENT
SHALL BE ENFORCEABLE AS SO MODIFIED AFTER THE EXPIRATION OF THE TIME WITHIN
WHICH THE JUDGMENT MAY BE APPEALED.
5.
GOVERNING LAW. THIS AGREEMENT (AND ANY CLAIMS OR DISPUTES ARISING
OUT OF OR RELATING HERETO OR TO THE TRANSACTIONS CONTEMPLATED HEREBY OR TO THE
INDUCEMENT OR ANY PARTY TO ENTER INTO HEREIN, WHETHER FOR BREACH OF CONTRACT,
TORTIOUS CONDUCT OR OTHERWISE AND WHETHER PREDICTED ON COMMON LAW, STATUTE OR
OTHERWISE) SHALL BE SUBJECT TO AND GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF ILLINOIS WITHOUT REFERENCE TO ANY CHOICE OF LAW OR
CONFLICTS OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF ILLINOIS OR ANY
OTHER JURISDICTION), IRRESPECTIVE OF THE FACT THAT THE PEEK PARTIES MAY BECOME A
RESIDENT OF A DIFFERENT STATE.
6.
BINDING EFFECT. THE AGREEMENT SHALL BE BINDING UPON AND INURE TO
THE BENEFIT OF THE COMPANY, ITS SUCCESSORS AND ASSIGNS, AND EACH OF THE PEEK
PARTIES AND ITS SUCCESSORS AND ASSIGNS.
5
7.
COMPLETE UNDERSTANDING.
EXCEPT AS SET FORTH IN THE ASSET
PURCHASE AGREEMENT, THIS AGREEMENT CONSTITUTES THE COMPLETE UNDERSTANDING AMONG
THE PARTIES HERETO WITH REGARD TO THE SUBJECT MATTER HEREOF, AND SUPERSEDES ANY
AND ALL PRIOR AGREEMENTS AND UNDERSTANDINGS RELATING TO THE SUBJECT MATTER
HEREOF.
8.
AMENDMENTS. NO CHANGE, MODIFICATION OR AMENDMENT OF ANY PROVISION