ANY EMPLOYEE OF THE COMPANY OR OF ANY OF THE COMPANY'S SUBSIDIARIES,
(III) WITHOUT THE PRIOR WRITTEN CONSENT OF BUYER, EMPLOY ANY EMPLOYEE OF THE
COMPANY OR OF ANY OF THE COMPANY'S SUBSIDIARIES WITHIN ONE YEAR OF SUCH COMPANY
EMPLOYEE LEAVING THE EMPLOYMENT OF THE COMPANY OR ANY OF THE COMPANY'S
SUBSIDIARIES, OR (IV) SOLICIT OR INDUCE, OR ATTEMPT TO SOLICIT OR INDUCE, ANY
CUSTOMER OF THE COMPANY OR OF ANY OF THE COMPANY'S SUBSIDIARIES TO PURCHASE ANY
GOODS OR PRODUCTS WITH RESPECT TO THE RESTRICTED BUSINESS, OR OTHERWISE IMPEDE
OR INTERFERE IN ANY WAY WITH ANY CUSTOMER, SUPPLIER OR OTHER BUSINESS
RELATIONSHIP OF ANY OF THE COMPANY, BUYER OR ANY OF THE COMPANY'S SUBSIDIARIES
OR ANY OF THEIR RESPECTIVE AFFILIATES; PROVIDED HOWEVER THAT SELLER WILL BE
DEEMED NOT TO HAVE VIOLATED THIS CLAUSE MERELY AS A RESULT OF PUBLISHING A
SOLICITATION OF GENERAL CIRCULATION.
(E)
SELLER ACKNOWLEDGES THAT THE COVENANTS CONTAINED IN SECTIONS
6.3(A), 6.3(B) AND 6.3(D) HEREOF ARE OF A SPECIAL, UNIQUE, UNUSUAL AND
EXTRAORDINARY CHARACTER, WHICH GIVE THEM PECULIAR VALUE, THE LOSS OF WHICH
CANNOT BE REASONABLY OR ADEQUATELY COMPENSATED IN AN ACTION AT LAW, AND THAT, IN
THE EVENT THERE IS A BREACH THEREOF BY SELLER OR ANY OF ITS AFFILIATES, BUYER
WILL SUFFER IRREPARABLE HARM, THE AMOUNT OF WHICH WILL BE IMPOSSIBLE TO
ASCERTAIN.
ACCORDINGLY, BUYER, SHALL BE ENTITLED, IF EITHER SO ELECTS, TO
INSTITUTE AND PROSECUTE PROCEEDINGS IN
33
ANY COURT OF COMPETENT JURISDICTION, EITHER AT LAW OR IN EQUITY, TO OBTAIN
DAMAGES FOR ANY BREACH OR TO ENFORCE SPECIFIC PERFORMANCE OF THE PROVISIONS OR
TO ENJOIN SELLER OR ANY OF ITS AFFILIATES FROM COMMITTING ANY ACT IN BREACH OF
ANY COVENANT CONTAINED IN SECTIONS 6.3(A), 6.3(B) OR 6.3(D) OF THIS AGREEMENT.
IF BUYER IS OBLIGED TO RESORT TO THE COURTS FOR THE ENFORCEMENT OF ANY OF THE
COVENANTS CONTAINED IN THIS SECTION 6.3, EACH SUCH COVENANT SHALL BE EXTENDED
FOR A PERIOD OF TIME EQUAL TO THE PERIOD OF SUCH BREACH, IF ANY, WHICH EXTENSION
SHALL COMMENCE ON THE LATER OF (I) THE DATE ON WHICH THE ORIGINAL (UNEXTENDED)
TERM OF SUCH COVENANT IS SCHEDULED TO TERMINATE OR (II) THE DATE OF THE FINAL
COURT ORDER (WITHOUT FURTHER RIGHT OF APPEAL) ENFORCING SUCH COVENANT.
(F)
NOTWITHSTANDING SECTIONS 6.3(A) OR 6.3(B) HEREOF, NOTHING
CONTAINED HEREIN SHALL PROHIBIT SELLER OR ANY OF ITS AFFILIATES FROM OWNING NOT
IN EXCESS OF 2% IN THE AGGREGATE OF THE CAPITAL STOCK OF ANY CORPORATION ENGAGED
IN THE RESTRICTED BUSINESS IF SUCH STOCK IS PUBLICLY TRADED ON ANY NATIONAL OR
REGIONAL STOCK EXCHANGE , INCLUDING THE NASDAQ GLOBAL MARKET AND THE NASDAQ
GLOBAL SELECT MARKET.
(G)
IF, AT THE TIME OF ENFORCEMENT OF THIS SECTION 6.3, A COURT SHALL
HOLD THAT THE DURATION, SCOPE OR AREA RESTRICTIONS STATED HEREIN ARE
UNREASONABLE UNDER CIRCUMSTANCES THEN EXISTING, THE PARTIES AGREE THAT THE
MAXIMUM DURATION, SCOPE OR AREA REASONABLE UNDER SUCH CIRCUMSTANCES SHALL BE
SUBSTITUTED FOR THE STATED DURATION, SCOPE OR AREA AND THAT THE COURT SHALL BE
ALLOWED TO REVISE