(BUT NOT WITH RESPECT TO ANY OTHER SELLER) OR
AN EQUITY OWNER (BUT NOT WITH RESPECT TO ANY OTHER EQUITY OWNER) BY ANY PERIOD
OF TIME DURING WHICH SUCH SELLER OR EQUITY OWNER IS IN VIOLATION OF SUCH
COVENANTS.
H.
CONSIDERATION.
IN CONSIDERATION FOR
EACH SELLER'S AND EACH EQUITY OWNER'S COVENANTS CONTAINED IN THIS SECTION 7.4,
BUYER AND PARENT SHALL ENTER INTO THIS AGREEMENT, SHALL CONSUMMATE THE PURCHASE
OF THE MEMBERSHIP INTEREST AND PAY TO SELLERS THE PURCHASE PRICE AS SET FORTH IN
THIS AGREEMENT.
I.
REASONABLENESS OF RESTRICTIONS.
I.
EACH SELLER AND EACH EQUITY OWNER
REPRESENTS AND WARRANTS THAT HE, SHE OR IT HAS CAREFULLY READ AND CONSIDERED THE
PROVISIONS OF THIS SECTION 7.4 AND, HAVING DONE SO, AGREES THAT THE RESTRICTIONS
SET FORTH IN THIS SECTION 7.4, INCLUDING, BUT NOT LIMITED TO, THE TIME PERIOD OF
RESTRICTION AND GEOGRAPHICAL AREAS OF RESTRICTION ARE FAIR AND REASONABLE AND
ARE REASONABLY REQUIRED FOR THE PROTECTION OF THE INTERESTS OF PROTECTED
PARTIES.
II.
THE PARTIES IN NO WAY INTEND TO INCLUDE
A PROVISION THAT CONTRAVENES PUBLIC POLICY. THE PARTIES INTEND THAT THE
COVENANTS AND RESTRICTIONS OR ANY PORTIONS THEREOF CONTAINED IN THIS AGREEMENT
BE SEVERABLE, DIVISIBLE, AND DISTINCT AND THAT THEY BE GIVEN MEANING AND EFFECT
SEPARATELY, TOGETHER, OR IN ANY COMBINATION THEREOF. THE PARTIES FIRST INTEND
AND AUTHORIZE A COURT TO REWRITE THIS SECTION 7.4 TO ALLOW FOR THIS SECTION 7.4
TO BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED BY LAW. FURTHER, THE PARTIES
AUTHORIZE A COURT TO "BLUE PENCIL" THE LANGUAGE IN THIS SECTION 7.4 SUCH THAT
THE COVENANTS AGREED TO BY EACH SELLER AND EACH EQUITY OWNER ARE ENFORCED TO THE
MAXIMUM EXTENT PERMITTED BY LAW. THE PARTIES FURTHER INTEND THAT SHOULD ANY ONE
OR MORE OF SUCH COVENANTS OR RESTRICTIONS (OR ANY PART THEREOF) BE DETERMINED BY
A COURT TO BE INVALID OR UNENFORCEABLE, THE REMAINING COVENANT OR COVENANTS AND
REMAINING RESTRICTION OR RESTRICTIONS, BEING SEVERABLE AND DIVISIBLE, SHALL BE
FULLY ENFORCEABLE AND BINDING OBLIGATIONS OF EACH SELLER AND EACH EQUITY OWNER.
IN ADDITION, AND WITHOUT
52
LIMITING THE FOREGOING, IN THE EVENT A COURT DETERMINES THAT ANY OF THE TERMS,
PROVISIONS, OR COVENANTS CONTAINED IN THIS SECTION 7.4 ARE UNENFORCEABLE, A
COURT MAY LIMIT THE APPLICATION OF ANY SUCH TERM, PROVISION, OR COVENANT AND
PROCEED TO ENFORCE THIS SECTION 7.4 AS SO LIMITED OR MODIFIED.
J.
REMEDIES FOR BREACH OF COVENANTS.
EACH SELLER AND EACH EQUITY OWNER ACKNOWLEDGES AND AGREES THAT THE INJURY THE
PROTECTED PARTIES WOULD SUFFER IN THE EVENT OF A BREACH OF THIS SECTION 7.4
WOULD BE IRREPARABLE AND NOT ADEQUATELY COMPENSATED BY MONETARY DAMAGES ALONE.
THUS, IN THE EVENT OF A BREACH OR THREATENED OR INTENDED BREACH OF THIS
SECTION 7.4 BY A SELLER OR AN EQUITY OWNER, THE PROTECTED PARTIES ARE ENTITLED
TO SEEK AND OBTAIN INJUNCTIONS, BOTH TEMPORARY AND FINAL, ENJOINING AND
RESTRAINING SUCH BREACH OR THREATENED OR INTENDED BREACH. THE PROTECTED PARTIES
MAY FURTHER ASSERT SUCH CLAIMS, INCLUDING ANY CLAIMS AVAILABLE UNDER STATUTORY
OR COMMON LAW, AS THEY