NOT
CONSTITUTE A DEFENSE TO PURCHASER'S ENFORCEMENT OF THIS SECTION 5.10.
(D) PURCHASER'S RESTRICTIVE COVENANT.
IN ORDER THAT SELLER MAY CONTINUE TO HAVE
AND ENJOY THE FULL BENEFIT OF THE SELLER'S PCMP CLEANS BUSINESS AND SELLER'S ACT
M-100 CHEMICAL AS IDENTIFIED IN EXHIBIT A OF THE MILAN TOLLING AGREEMENT) AND AS
AN INDUCEMENT FOR SELLER TO ENTER INTO THE MILAN TOLLING AGREEMENT, PURCHASER
HEREBY AGREES THAT IT WILL NOT, NOR WILL ANY OF ITS AFFILIATES, DIRECTLY OR
INDIRECTLY, ANYWHERE IN ANY MARKET IN THE WORLD ENGAGE IN THE MANUFACTURE OR
SALE OF CHEMICALS RELATED TO THE PCMP CLEANS BUSINESS AND SELLER'S ACT M-100
CHEMICAL FOR A PERIOD OF FIVE YEARS FROM THE CLOSING DATE; PROVIDED, HOWEVER,
THAT, NOTWITHSTANDING THE FOREGOING, PURCHASER OR ANY OF ITS AFFILIATES MAY
ENGAGE IN SUCH BUSINESS OR ACTIVITIES THROUGH ANY COMPANY (OR BUSINESS THEREOF)
THAT ACQUIRES OR IS ACQUIRED BY PURCHASER OR ANY OF ITS AFFILIATES AFTER THE
DATE OF THIS AGREEMENT IF SUCH COMPANY WAS ALREADY ENGAGED IN SUCH BUSINESS AT
THE TIME OF SUCH ACQUISITION, AND THE REVENUES OF SUCH COMPANY ATTRIBUTABLE TO
THAT PORTION OF THE COMPANY ENGAGED IN SUCH BUSINESS DURING THE TWELVE (12)
MONTHS PRECEDING THE TRANSACTION WITH SELLER OR ANY OF ITS AFFILIATES DID NOT
EXCEED TWENTY PERCENT (20%) OF THE AGGREGATE REVENUES OF (X) SUCH COMPANY DURING
SUCH PERIOD, IN THE CASE OF A COMPANY THAT ACQUIRES SELLER OR ANY OF ITS
AFFILIATES, OR (Y) ALL OF THE BUSINESSES OR OPERATIONS ACQUIRED BY SELLER OR ANY
OF ITS AFFILIATES FROM SUCH COMPANY DURING SUCH PERIOD, IN THE CASE OF AN
35
ACQUISITION BY SELLER OR ANY OF ITS AFFILIATES.
THIS SECTION 5.10(D) SHALL BE
DEEMED NOT TO BE BREACHED AS A RESULT OF THE CONSUMMATION OF ANY ACQUISITION OR
BUSINESS COMBINATION INVOLVING PURCHASER OR ANY OF ITS AFFILIATES IF, FOLLOWING
SUCH TRANSACTION, EITHER (I) PURCHASER'S PUBLIC SHAREHOLDERS SHALL NOT HAVE A
MAJORITY OF THE AGGREGATE VOTING SECURITIES OF THE SURVIVING CORPORATION IN SUCH
ACQUISITION OR (II) PURCHASER SHALL DIVEST ITSELF, WITHIN EIGHTEEN (18) MONTHS
AFTER SUCCESSFUL CONSUMMATION OF SUCH TRANSACTION, OF THE BUSINESS OR ASSETS
THAT VIOLATE THIS SECTION 5.10.
PURCHASER 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.
(E) NATURE OF THE RESTRICTIVE COVENANTS.
PURCHASER 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
SELLER AND GOODWILL OF ITS BUSINESS.
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