COMPANY, THE COMPANY SHAREHOLDERS AND BUYER 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.
WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, IF A COURT OF COMPETENT JURISDICTION
DETERMINES THAT:
(I)
THE GEOGRAPHIC SCOPE IS UNENFORCEABLE UNDER APPLICABLE LAW
BECAUSE IT IS TOO BROAD, THE RESTRICTED TERRITORY SHALL BE AMENDED BY
ELIMINATING GEOGRAPHICAL AREAS AND STATES FROM THE FOLLOWING LIST UNTIL THE
RESTRICTED TERRITORY IS DETERMINED TO BE REASONABLE:
ARIZONA, ALABAMA, ALASKA,
ARIZONA, ARKANSAS, CALIFORNIA, COLORADO, CONNECTICUT, DELAWARE, DISTRICT OF
COLUMBIA, FLORIDA, GEORGIA, HAWAII, IDAHO, ILLINOIS, INDIANA, IOWA, KANSAS,
KENTUCKY, LOUISIANA, MAINE, MARYLAND, MASSACHUSETTS, MICHIGAN, MINNESOTA,
MISSISSIPPI, MISSOURI, MONTANA, NEBRASKA, NEVADA, NEW HAMPSHIRE, NEW JERSEY, NEW
MEXICO, NEW YORK, NORTH CAROLINA, NORTH DAKOTA, OHIO, OKLAHOMA, OREGON,
PENNSYLVANIA, RHODE ISLAND, SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, TEXAS,
UTAH, VERMONT, VIRGINIA, WASHINGTON, DISTRICT OF COLUMBIA, WEST VIRGINIA,
WISCONSIN, WYOMING, WASHINGTON, WHATCOM COUNTY, WASHINGTON AND LYNDEN,
WASHINGTON.
THE PARTIES ACKNOWLEDGE AND AGREE THAT IF ANY OF THE GEOGRAPHIC
AREAS OR STATES LISTED ABOVE ARE REQUIRED BY LAW TO BE ELIMINATED, IT WOULD BE
FAIR AND APPROPRIATE TO DO SO IN THE INVERSE ORDER OF THE VOLUME OF REVENUE
RECEIVED OR PROJECTED TO BE RECEIVED BY THE COMPANY FROM SUCH AREA OR STATE AT
THE TIME OF DETERMINATION.
(II)
THE TIME PERIOD FOR THE RESTRICTION IS UNENFORCEABLE BECAUSE IT
IS TOO LONG, THE TIME PERIOD SHALL BE FOR THE LONGEST OF THE FOLLOWING PERIODS
THAT THE COURT DETERMINES IS REASONABLE UNDER THE CIRCUMSTANCES:
4 YEARS, 3
YEARS, 2 YEARS, 1 YEAR, 11 MONTHS, 10 MONTHS, 9 MONTHS, 8 MONTHS, 7 MONTHS, OR 6
MONTHS AFTER THE CLOSING DATE.
(F)
ACKNOWLEDGMENT.
THE COMPANY AND EACH OF THE COMPANY SHAREHOLDERS
ACKNOWLEDGES AND AGREES THAT (I) THE RESTRICTIONS CONTAINED IN THIS SECTION 7.6
ARE REASONABLE IN ALL RESPECTS (INCLUDING WITH RESPECT TO SUBJECT MATTER, TIME
PERIOD AND GEOGRAPHICAL AREA) AND ARE NECESSARY TO PROTECT BUYER'S INTEREST IN,
AND VALUE OF, THE BUSINESS (INCLUDING THE GOODWILL INHERENT THEREIN), (II) THE
COMPANY IS PRIMARILY RESPONSIBLE FOR THE CREATION OF SUCH VALUE, AND (III) BUYER
WOULD NOT HAVE CONSUMMATED THE TRANSACTIONS CONTEMPLATED HEREBY WITHOUT THE
RESTRICTIONS CONTAINED IN THIS SECTION 7.6.
42
7.7
EMPLOYEE AND EMPLOYEE BENEFIT MATTERS
(A)
EFFECTIVE AS OF THE CLOSING DATE, BUYER SHALL OFFER EMPLOYMENT TO THE
EMPLOYEES OF THE COMPANY WHO ARE ACTIVELY EMPLOYED BY THE COMPANY AS OF THE
CLOSING DATE AND OTHER EMPLOYEES OF THE COMPANY THAT ARE LISTED ON
SCHEDULE 4.16(B), EXCEPT LYLE RADER AND SUE RADER, (COLLECTIVELY, THE
"EMPLOYEES") ON SUCH TERMS AND CONDITIONS AS ARE ACCEPTABLE TO BUYER