UNREASONABLE UNDER THE CIRCUMSTANCES THEN EXISTING, THEN THE PARTIES HERETO
AGREE THAT THE MAXIMUM PERIOD, SCOPE OR GEOGRAPHICAL AREA REASONABLE UNDER THE
CIRCUMSTANCES SHALL BE SUBSTITUTED FOR THE STATED PERIOD, SCOPE OR AREA.
THE
PARTIES FURTHER AGREE THAT SUCH COURT SHALL BE ALLOWED TO REVISE THE
RESTRICTIONS CONTAINED HEREIN TO COVER THE MAXIMUM PERIOD, SCOPE OR GEOGRAPHICAL
AREA PERMITTED BY LAW.
(F)
IF SELLER OR ANY ACQUIRER (THE "RESTRICTED PERSONS"): W)
BREACHES; X) THREATENS TO COMMIT A BREACH OF; Y) CHALLENGES OR CONTESTS, IN ANY
WAY, EITHER DIRECTLY OR INDIRECTLY; OR Z) ASSISTS ANY PERSON WHO IS SO
CHALLENGING OR CONTESTING, ANY OF THE PROVISIONS OF THIS SECTION 7.9 (THE
"RESTRICTIVE COVENANTS"), BUYER SHALL HAVE THE FOLLOWING RIGHTS AND REMEDIES,
EACH OF WHICH RIGHTS AND REMEDIES SHALL BE INDEPENDENT OF THE OTHERS AND
SEVERALLY ENFORCEABLE, AND EACH OF WHICH IS IN ADDITION TO, AND NOT IN LIEU OF,
ANY OTHER RIGHTS AND REMEDIES AVAILABLE TO BUYER AT LAW OR IN EQUITY:
(I)
THE RIGHT AND REMEDY TO HAVE THE RESTRICTIVE COVENANTS SPECIFICALLY
ENFORCED BY ANY COURT OF COMPETENT JURISDICTION, IT BEING AGREED THAT ANY BREACH
OR THREATENED BREACH OF THE RESTRICTIVE COVENANTS WOULD CAUSE IRREPARABLE INJURY
TO BUYER AND THAT MONEY DAMAGES WOULD NOT PROVIDE AN ADEQUATE REMEDY TO BUYER;
AND
(II)
THE RIGHT AND REMEDY TO REQUIRE THE RESTRICTED PERSONS TO ACCOUNT
FOR AND PAY OVER TO BUYER ANY PROFITS, MONIES, ACCRUALS, INCREMENTS OR OTHER
BENEFITS DERIVED OR RECEIVED BY THE RESTRICTED PERSONS AS THE RESULT OF ANY
TRANSACTIONS CONSTITUTING A BREACH OF THE RESTRICTIVE COVENANTS; AND
(III)
BUYER'S CONTINUING OBLIGATION TO MAKE ANY CURRENT OR FUTURE
CONTINGENT PURCHASE PRICE PAYMENTS OR ANY CURRENT OR FUTURE MINIMUM CONTINGENT
PURCHASE PRICE PAYMENTS (FOR PURPOSES OF THIS SECTION 7.9(F)(III), COLLECTIVELY,
"PAYMENTS") SHALL IMMEDIATELY BE SUSPENDED PENDING THE ARBITRATION DESCRIBED
BELOW; PROVIDED, HOWEVER, PRIOR TO BUYER WITHHOLDING ANY PAYMENT ON ACCOUNT OF
THIS SECTION 7.9(F)(III), BUYER SHALL PROVIDE 15 DAYS' WRITTEN NOTICE THEREOF TO
SELLER.
THE RECEIPT OF ANY SUCH NOTICE SHALL NOT BE A WAIVER OF SELLER'S RIGHT
TO DISPUTE SAME, BUT SELLER SHALL NOT HAVE THE RIGHT TO PREVENT OR ENJOIN BUYER
FROM WITHHOLDING ANY SUCH PAYMENT.
IN THE EVENT THAT BUYER BELIEVES THAT A
BREACH OF ANY RESTRICTIVE COVENANT HAS OCCURRED, THEN SELLER SHALL HAVE THE
RIGHT TO SEEK EXPEDITED ARBITRATION, PURSUANT TO THE APPLICABLE TERMS AND
CONDITION OF ARTICLE VIII HEREOF, AS TO WHETHER OR NOT ANY RESTRICTED PERSON HAS
SO BREACHED ANY RESTRICTIVE COVENANTS, AND BUYER AGREES TO FULLY COOPERATE
45
WITH SELLER IN SEEKING SUCH EXPEDITED ARBITRATION.
IN THE EVENT THAT AN
ARBITRATOR RULES THAT NO RESTRICTIVE COVENANT HAS BEEN BREACHED BY A RESTRICTED
PERSON, THEN BUYER SHALL IMMEDIATELY RECOMMENCE MAKING ANY PAYMENTS, INCLUDING
ANY WITHHELD OR PAST DUE PAYMENTS, ALONG WITH THE APPLICABLE RATE.
IN THE EVENT
THAT AN ARBITRATOR RULES THAT A RESTRICTED PERSON HAS VIOLATED ANY RESTRICTIVE
COVENANT, THEN ANY OBLIGATION TO PAY ANY SUSPENDED, CURRENT OR FUTURE PAYMENT
SHALL BE FORGIVEN, DISCHARGED AND RELEASED; PROVIDED, HOWEVER, THAT SELLER
SHALL, ONE TIME