OPERATIONS
ACQUIRED BY SELLER OR ANY OF ITS AFFILIATES FROM SUCH COMPANY DURING SUCH
PERIOD, IN THE CASE OF AN ACQUISITION BY SELLER OR ANY OF ITS AFFILIATES.
THIS
SECTION 5.10(A) SHALL BE DEEMED NOT TO BE BREACHED AS A RESULT OF THE
CONSUMMATION OF ANY ACQUISITION OR BUSINESS COMBINATION INVOLVING SELLER OR ANY
OF ITS AFFILIATES IF, FOLLOWING SUCH TRANSACTION, EITHER (I) SELLER'S PUBLIC
SHAREHOLDERS SHALL NOT HAVE A MAJORITY OF THE AGGREGATE VOTING SECURITIES OF THE
SURVIVING CORPORATION IN SUCH ACQUISITION OR (II) SELLER SHALL DIVEST ITSELF,
WITHIN EIGHTEEN (18) MONTHS AFTER SUCCESSFUL CONSUMMATION OF SUCH TRANSACTION,
OF THE BUSINESS OR ASSETS THAT VIOLATE THIS SECTION 5.10.
SELLER AGREES THAT
THIS RESTRICTIVE COVENANT IS ANCILLARY TO THE OTHERWISE ENFORCEABLE PROMISES
CONTAINED IN THIS AGREEMENT, INCLUDING PURCHASER'S PROMISE TO PROVIDE SELLER
WITH ACCESS TO CONFIDENTIAL BUSINESS INFORMATION PURSUANT TO THIS AGREEMENT AND
SELLER'S RETURN PROMISE NOT TO DISCLOSE SUCH INFORMATION.
34
(B) NATURE OF THE RESTRICTIVE COVENANTS.
SELLER AGREES THAT THE TIME,
GEOGRAPHICAL AREA, AND SCOPE OF RESTRAINED ACTIVITIES FOR THE RESTRICTIONS
CONTAINED IN THIS SECTION 5.10 ARE REASONABLE AND NECESSARY TO PROTECT THE
PURCHASER AND GOODWILL OF THE PURCHASER.
IF A COURT CONCLUDES THAT ANY TIME
PERIOD, GEOGRAPHICAL AREA, OR SCOPE OF RESTRAINED ACTIVITIES SPECIFIED IN THIS
SECTION 5.10 IS UNENFORCEABLE, THE COURT IS VESTED WITH THE AUTHORITY TO MODIFY
THE TIME PERIOD, GEOGRAPHICAL AREA, AND/OR SCOPE OF RESTRAINED ACTIVITIES, SO
THAT THE RESTRICTIONS MAY BE ENFORCED TO THE FULLEST EXTENT PERMITTED BY LAW.
IF FOR ANY REASON ANY COURT OF COMPETENT JURISDICTION FINDS ANY PROVISIONS OF
AGREEMENT SECTION 5.10 UNREASONABLE IN DURATION OR GEOGRAPHIC SCOPE OR
OTHERWISE, THE PURCHASER AND SELLER AGREE THAT THE RESTRICTIONS AND PROHIBITIONS
CONTAINED IN SECTION 5.10 OF THIS AGREEMENT SHALL BE EFFECTIVE TO THE FULLEST
EXTENT ALLOWED UNDER APPLICABLE LAW.
ADDITIONALLY, IF SELLER VIOLATES ANY OF
THE RESTRICTIONS CONTAINED IN THIS SECTION 5.10, THE RESTRICTIVE PERIOD SHALL BE
SUSPENDED AND WILL NOT RUN IN FAVOR OF PURCHASER FROM THE TIME OF THE
COMMENCEMENT OF ANY VIOLATION UNTIL THE TIME WHEN SELLER CURES THE VIOLATION TO
THE PURCHASER'S REASONABLE SATISFACTION.
(C) PURCHASER'S REMEDIES.
SELLER ACKNOWLEDGES THAT THE RESTRICTIONS CONTAINED
IN THIS SECTION 5.10, IN VIEW OF THE NATURE OF PURCHASER'S BUSINESS, ARE
REASONABLE AND NECESSARY TO PROTECT PURCHASER'S LEGITIMATE BUSINESS INTERESTS
AND THAT ANY VIOLATION OF THIS SECTION 5.10 WOULD RESULT IN IRREPARABLE INJURY
TO PURCHASER FOR WHICH THERE IS NO ADEQUATE REMEDY AT LAW.
IN THE EVENT OF A
BREACH OR A THREATENED BREACH BY SELLER OF THIS SECTION 5.10, PURCHASER SHALL BE
ENTITLED TO SEEK A TEMPORARY RESTRAINING ORDER AND INJUNCTIVE RELIEF RESTRAINING
SELLER FROM THE COMMISSION OF ANY BREACH.
NOTHING CONTAINED IN THIS AGREEMENT
SHALL BE CONSTRUED AS PROHIBITING PURCHASER FROM PURSUING ANY OTHER REMEDIES
AVAILABLE TO IT FOR ANY BREACH OR THREATENED BREACH, INCLUDING, WITHOUT
LIMITATION, THE RECOVERY OF MONEY DAMAGES, EQUITABLE RELIEF, ATTORNEYS' FEES,
AND COSTS.
THE EXISTENCE OF ANY CLAIM OR CAUSE OF ACTION BY SELLER AGAINST
PURCHASER, WHETHER PREDICATED ON THIS AGREEMENT OR OTHERWISE, SHALL