AFFILIATES SHALL HAVE THE
RIGHT TO OBTAIN SUCH PRELIMINARY, TEMPORARY OR PERMANENT MANDATORY OR
RESTRAINING INJUNCTIONS, ORDERS OR DECREES AS MAY BE NECESSARY TO PROTECT BUYER
OR ANY OF ITS AFFILIATES AGAINST, OR ON ACCOUNT OF, ANY BREACH BY SELLER OF THE
PROVISIONS OF SECTION 1(A) OF THIS AGREEMENT WITHOUT THE PROOF OF ANY ACTUAL
DAMAGE CAUSED TO BUYER OR ANY OF ITS AFFILIATES.
SUCH RIGHT TO EQUITABLE RELIEF
IS IN ADDITION TO ALL OTHER LEGAL REMEDIES BUYER OR ANY OF ITS AFFILIATES MAY
HAVE TO PROTECT ITS RIGHTS.
(C)
EACH PARTY SHALL BEAR ITS OWN ATTORNEYS' FEES AND EXPENSES IN ANY
SUIT OR PROCEEDING INITIATED IN CONNECTION WITH THIS AGREEMENT.
4.
SEVERABILITY.
THE COVENANTS, PROVISIONS AND PARAGRAPHS OF THIS
AGREEMENT ARE SEVERABLE.
IN THE EVENT THAT ANY PORTION OF THIS AGREEMENT IS
HELD TO BE ILLEGAL OR UNENFORCEABLE, IN WHOLE OR IN PART, THE SAME WILL NOT
AFFECT ANY OTHER PORTION OF THIS AGREEMENT, AND THE REMAINING COVENANTS,
PROVISIONS AND PARAGRAPHS OR PORTIONS THEREOF, TO THE EXTENT ENFORCEABLE, SHALL,
NEVERTHELESS, BE BINDING AND ENFORCEABLE.
IN FURTHERANCE AND NOT IN LIMITATION
OF THE FOREGOING, IF ANY DURATIONAL OR GEOGRAPHIC RESTRICTION OR RESTRICTION ON
BUSINESS ACTIVITIES COVERED UNDER THIS AGREEMENT SHALL BE FOUND BY ANY COURT OF
COMPETENT JURISDICTION TO BE OVERLY-BROAD, AND THUS ILLEGAL OR UNENFORCEABLE,
SELLER AND BUYER INTEND THAT SUCH COURT WILL ENFORCE THIS AGREEMENT IN ANY LESS
BROAD MANNER THE COURT MAY FIND APPROPRIATE BY CONSTRUING SUCH OVERLY-
3
BROAD PROVISIONS TO COVER ONLY THAT DURATION, GEOGRAPHIC AREA OR BUSINESS
ACTIVITIES WHICH MAY BE ENFORCEABLE.
THE PARTIES EXPRESSLY AGREE THAT THIS
AGREEMENT SHALL BE GIVEN THE CONSTRUCTION THAT RENDERS ITS PROVISIONS VALID AND
ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY LAW AND/OR EQUITY.
5.
AMENDMENTS.
NO SUPPLEMENT, MODIFICATION, AMENDMENT OR WAIVER OF
THE TERMS OF THIS AGREEMENT SHALL BE BINDING ON THE PARTIES HERETO UNLESS
EXECUTED IN WRITING BY THE PARTY TO BE BOUND THEREBY.
NO WAIVER OF ANY OF THE
PROVISIONS OF THIS AGREEMENT SHALL BE DEEMED TO OR SHALL CONSTITUTE A WAIVER OF
ANY OTHER PROVISIONS HEREOF (WHETHER OR NOT SIMILAR), NOR SHALL SUCH WAIVER
CONSTITUTE A CONTINUING WAIVER UNLESS OTHERWISE EXPRESSLY PROVIDED.
ANY FAILURE
TO INSIST UPON STRICT COMPLIANCE WITH ANY OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT SHALL NOT BE DEEMED A WAIVER OF ANY SUCH TERMS OR CONDITIONS.
6.
SUCCESSORS IN INTEREST.
THIS AGREEMENT SHALL BE BINDING UPON AND
SHALL INURE TO THE BENEFIT OF THE SUCCESSORS, ASSIGNS, ESTATES, HEIRS AND
PERSONAL REPRESENTATIVES OF THE PARTIES HERETO (PROVIDED THAT THE RESTRICTIONS
THEMSELVES SHALL NOT APPLY TO THE SUCCESSORS, ASSIGNS, ESTATES, HEIRS AND
PERSONAL REPRESENTATIVES OF SELLER).
NEITHER PARTY MAY ASSIGN HIS OR ITS RIGHTS
OR OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY
HERETO.
NOTWITHSTANDING THE FOREGOING, BUYER MAY ASSIGN ITS RIGHTS HEREUNDER TO
ANY AFFILIATE OR TO ANY SUCCESSOR IN INTEREST TO THE ENTIRE BUSINESS OF BUYER OR
TO SUBSTANTIALLY ALL OF THE ASSETS OF BUYER.
7.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND