(A) FROM BEING ACQUIRED BY ANY PERSON (IN
WHICH EVENT, THE PROVISIONS OF THIS SECTION 8.13 SHALL CONTINUE TO APPLY TO THE
STOCKHOLDER ONLY FOR SO LONG AS EITHER MAINTAINS ITS RESPECTIVE SEPARATE
CORPORATE EXISTENCE, BUT SHALL NOT APPLY DIRECTLY TO THE PERSON ACQUIRING THE
STOCKHOLDER OR ANY AFFILIATE OF SUCH PERSON OR TO ANY PERSON RESULTING FROM A
MERGER OR OTHER CONSOLIDATION OF THE STOCKHOLDER); (B) FROM ACQUIRING ANY PERSON
OR ITS BUSINESS IF LESS THAN TEN PERCENT (10%) OF THE CONSOLIDATED REVENUE OF
SUCH PERSON OR BUSINESS FOR ITS MOST RECENT FISCAL YEAR PRECEDING SUCH
ACQUISITION IS DERIVED FROM A COMPETITIVE BUSINESS, OR (C) FROM OWNING,
PURCHASING OR OTHERWISE ACQUIRING AN AGGREGATE OF UP TO FIVE PERCENT (5%) OF THE
OUTSTANDING CAPITAL STOCK OF ANY PERSON THAT ENGAGES IN A COMPETITIVE BUSINESS,
THE SECURITIES
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OF WHICH ARE LISTED ON A NATIONAL SECURITIES EXCHANGE OR INCLUDED IN THE
NATIONAL LIST OF OVER-THE-COUNTER SECURITIES.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS SECTION 8.13, THE PROVISIONS OF THIS SECTION 8.13
SHALL NOT BE BINDING ON ANY PERSON WHO IS A SHAREHOLDER OF THE STOCKHOLDER.
THE
PARTIES AGREE THAT ALL OF THE CONSIDERATION PAID BY PARENT TO THE STOCKHOLDER
SHALL BE ALLOCATED TO THE PURCHASE OF THE STOCK OF THE COMPANY BY PARENT, EXCEPT
THAT $25,000 OF SUCH CONSIDERATION SHALL BE ALLOCATED TO THE COVENANT NOT TO
COMPETE DESCRIBED HEREIN, AND SUCH ALLOCATIONS SHALL BE FOLLOWED BY THE PARTIES
FOR ALL TAX REPORTING PURPOSES.
(B)
AS USED HEREIN, "NON COMPETITION PERIOD" SHALL MEAN THE PERIOD
COMMENCING ON THE CLOSING DATE HEREOF AND TERMINATING FIVE (5) YEARS FROM THE
CLOSING DATE.
(C)
"COMPETITIVE BUSINESS" SHALL MEAN ANY BUSINESS ENGAGED IN THE
MANUFACTURE AND SUPPLY OF STOKERS AND COMBUSTION EQUIPMENT RELATED TO STOKERS OR
THAT IS SUBSTANTIALLY SIMILAR TO THE STOKER RELATED SERVICES AND PRODUCTS
OFFERED BY THE COMPANY AS OF THE DATE HEREOF.
(D)
THE STOCKHOLDER AND PARENT RECOGNIZE AND ACKNOWLEDGE THAT THE
RESTRICTIONS SET FORTH HEREIN ARE REASONABLE AS TO FORM AND SCOPE.
NOTWITHSTANDING THE FOREGOING, IT IS THE DESIRE AND INTENT OF THE PARTIES THAT
THE PROVISIONS OF THIS SECTION 8.13 SHALL BE ENFORCED TO THE FULLEST EXTENT
PERMISSIBLE UNDER THE LAWS AND PUBLIC POLICIES APPLIED IN EACH JURISDICTION IN
WHICH ENFORCEMENT IS SOUGHT.
ACCORDINGLY, IF ANY PARTICULAR PROVISION IN THIS
SECTION 8.13 SHALL BE ADJUDICATED TO BE INVALID OR UNENFORCEABLE, SUCH PROVISION
SHALL BE DEEMED AMENDED TO (I) DELETE THEREFROM THE PORTION THUS ADJUDICATED TO
BE INVALID OR UNENFORCEABLE, SUCH DELETION TO APPLY ONLY WITH RESPECT TO THE
OPERATION OF SUCH PROVISION IN THE PARTICULAR JURISDICTION IN WHICH SUCH
ADJUDICATION IS MADE OR (II) OTHERWISE TO RENDER IT ENFORCEABLE IN SUCH
JURISDICTION.
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(E)
EACH OF PARENT AND THE STOCKHOLDER ACKNOWLEDGES AND UNDERSTANDS
THAT THE PROVISIONS OF THIS SECTION 8.13 ARE OF A SPECIAL AND UNIQUE NATURE, THE
LOSS OF WHICH CANNOT BE ADEQUATELY COMPENSATED FOR IN DAMAGES BY AN ACTION AT
LAW, AND THAT THE BREACH OR THREATENED BREACH OF THE PROVISIONS OF THIS
SECTION