CONTAINED IN THIS ARTICLE 5 MAY RESULT IN
MATERIAL IRREPARABLE INJURY TO THE CORPORATION FOR WHICH THERE IS NO ADEQUATE
REMEDY AT LAW, THAT IT WILL NOT BE POSSIBLE TO MEASURE DAMAGES FOR SUCH INJURIES
PRECISELY AND THAT, IN THE EVENT OF SUCH A BREACH, ANY PAYMENTS REMAINING UNDER
THE TERMS OF THIS AGREEMENT SHALL CEASE AND THE CORPORATION SHALL BE ENTITLED TO
OBTAIN A TEMPORARY RESTRAINING ORDER OR A PRELIMINARY OR PERMANENT INJUNCTION
RESTRAINING GLADSTONE FROM ENGAGING IN ACTIVITIES PROHIBITED BY THIS ARTICLE 5
OR SUCH OTHER RELIEF AS MAY REQUIRED TO SPECIFICALLY ENFORCE ANY OF THE
COVENANTS CONTAINED IN THIS ARTICLE 5. GLADSTONE AGREES TO AND HEREBY DOES
SUBMIT TO IN PERSONAM JURISDICTION BEFORE EACH AND EVERY SUCH COURT FOR THAT
PURPOSE.
(f)
Early Termination.
At the option of Gladstone on thirty
(30) days advance written notice to the Corporation, Gladstone may terminate the
Restricted Period.
Such a termination shall not affect any of the rights or
obligations of the parties hereunder that are not specifically limited in their
duration to the Restricted Period.
4.
MISCELLANEOUS. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN
THE PARTIES HERETO WITH REGARD TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL
PRIOR NEGOTIATIONS, REPRESENTATIONS AND AGREEMENTS, EITHER WRITTEN OR ORAL,
BETWEEN THEM EXCEPT FOR THE SURVIVING AGREEMENTS.
THERE ARE NO CONDITIONS,
AGREEMENTS, OR REPRESENTATIONS BETWEEN THE PARTIES EXCEPT THOSE EXPRESSED
HEREIN.
THIS AGREEMENT MAY BE ALTERED, MODIFIED, AMENDED, OR REPEALED ONLY BY A
DULY EXECUTED WRITTEN INSTRUMENT SIGNED BY THE PARTIES HERETO.
THIS AGREEMENT
SHALL BE GOVERNED BY THE LAW OF THE STATE OF MARYLAND, WITHOUT GIVING EFFECT TO
THE CONFLICTS OF LAWS PROVISIONS THEREOF.
EACH PARTY BINDS HIMSELF OR ITSELF
AND HIS OR ITS HEIRS, SUCCESSORS, LEGAL REPRESENTATIVES AND ASSIGNS IN RESPECT
TO ALL COVENANTS AND AGREEMENTS CONTAINED HEREIN.
EXCEPT AS SPECIFICALLY
CONTEMPLATED HEREIN, NOTHING HEREIN SHALL BE CONSTRUED AS GIVING ANY RIGHT OR
BENEFIT HEREUNDER TO ANYONE OTHER THAN THE PARTIES HERETO.
ANY NOTICES PROVIDED
FOR HEREIN SHALL BE DELIVERED IN WRITING ADDRESSED TO THE PARTIES AT THE
ADDRESSES FIRST SET FORTH ABOVE (AND, IN THE CASE OF THE CORPORATION ATTENTION:
COMPLIANCE OFFICER) AND SENT BY HAND DELIVERY, OVERNIGHT PARCEL EXPRESS SERVICE
PROVIDED BY A RECOGNIZED NATIONAL CARRIER OR BY CERTIFIED UNITED STATES FIRST
CLASS MAIL, RETURN RECEIPT REQUESTED.
IN WITNESS WHEREOF, the parties have executed this
Agreement under seal as of the date first hereinabove written.
WITNESS:
GLADSTONE:
(Seal)
David J. Gladstone
AMERICAN CAPITAL STRATEGIES, LTD.,
A Delaware Corporation
By:
(Seal)
Name:
Title
APPENDIX A
CERTAIN SUBJECT INVESTMENTS
US Investigations Services, Inc.
Arrow Shirt Company
Gans Tire, Inc.
National Forge Co.
Those entities listed below from the Company deal stream report dated August 6,
2001:
Belle
Looks
Cherry
Jersey
Pump
Globe
Chill
Video
Bus
Rack & Roll
Plastic Cart
Heavy Lifting - 164
Liquid-244
Tiger
Attach
Aeolus
Coin
Stainless
Circuit
EODT
Wall Industries
Medsource Technologies
Questron
Plastics
Oil
Matco
Dead Meat
Bueller
Sassy
FPD Acquisition
Clipper
Infusion Therapy Co.
Tech Law
Delta Engineering
Almost Dying
Transformer Deal
Helicopter Components 2