MONTHS PRIOR TO
THE EFFECTIVE DATE;
provided, however, that ownership or acquisition by the Stockholder, its
Affiliates, Seller and the other stockholders of Seller executing counterparts
of this Agreement, of an aggregate of less than five percent (5%) of the
outstanding stock of any publicly traded company or substantially similar to or
which compete with the Business shall not constitute a violation of this Section
2.
3.
REMEDIES.
THE STOCKHOLDER AND THE
COMPANY ACKNOWLEDGE AND AGREE THAT, (I) THEY REGARD THE RESTRICTIONS CONTAINED
IN SECTION 1 AND SECTION 2 AS REASONABLE AND DESIGNED TO PROVIDE THE COMPANY
WITH LIMITED, LEGITIMATE AND REASONABLE PROTECTION AGAINST SUBSEQUENT DIMINUTION
OF THE VALUE OF BUSINESS ATTRIBUTABLE TO ANY ACTIONS OF THE STOCKHOLDER OR ANY
OF ITS AFFILIATES CONTRARY TO SUCH COVENANTS, AND (II) BECAUSE THE LEGAL
REMEDIES OF THE COMPANY MAY BE INADEQUATE IN THE EVENT OF A BREACH OF, OR OTHER
FAILURE TO PERFORM, ANY OF THE COVENANTS AND OBLIGATIONS SET FORTH IN SECTIONS 1
AND 2, THE COMPANY MAY, IN ADDITION TO OBTAINING ANY OTHER REMEDY OR RELIEF
AVAILABLE TO IT (INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL AND OTHER DAMAGES
AT LAW), OBTAIN SPECIFIC ENFORCEMENT OF SECTION 1 AND 2 AND OTHER EQUITABLE
REMEDIES.
4.
ENFORCEABILITY.
IF THE FINAL JUDGMENT
OF A COURT OF COMPETENT JURISDICTION DECLARES THAT ANY TERM OR PROVISION OF
SECTION 2 IS INVALID OR UNENFORCEABLE, THE PARTIES
3
AGREE THAT THE COURT MAKING THE DETERMINATION OF INVALIDITY OR UNENFORCEABILITY
SHALL HAVE THE POWER TO REDUCE THE SCOPE, DURATION, OR AREA OF THE TERM OR
PROVISION, TO DELETE SPECIFIC WORDS OR PHRASES, OR TO REPLACE ANY INVALID OR
UNENFORCEABLE TERM OR PROVISION WITH A TERM OR PROVISION THAT IS VALID AND
ENFORCEABLE AND THAT COMES CLOSEST TO EXPRESSING THE INTENTION OF THE INVALID OR
UNENFORCEABLE TERM OR PROVISION, AND THIS AGREEMENT SHALL BE ENFORCEABLE AS SO
MODIFIED AFTER THE EXPIRATION OF THE TIME WITHIN WHICH THE JUDGMENT MAY BE
APPEALED.
5.
GOVERNING LAW. THIS AGREEMENT SHALL BE
SUBJECT TO AND GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO
ANY CHOICE OF LAW OR CONFLICTS OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE
OF ILLINOIS OR ANY OTHER JURISDICTION), IRRESPECTIVE OF THE FACT THAT THE
STOCKHOLDER MAY BECOME A RESIDENT OF A DIFFERENT STATE.
6.
BINDING EFFECT. THE AGREEMENT SHALL BE
BINDING UPON AND INURE TO THE BENEFIT OF THE COMPANY AND THE STOCKHOLDER, ITS
SUCCESSORS AND ASSIGNS.
7.
COMPLETE UNDERSTANDING. EXCEPT AS SET
FORTH IN THE ASSET PURCHASE AGREEMENT, COUNTERPARTS OF THIS AGREEMENT EXECUTED
BY OTHER STOCKHOLDERS OF UST AND AFFILIATES, AND THAT OEM SUPPLY AGREEMENT
BETWEEN THE COMPANY AND MYERS POWER PRODUCTS, INC. DATED AS OF MAY 16, 2003,
THIS AGREEMENT CONSTITUTES THE COMPLETE UNDERSTANDING AMONG THE PARTIES HERETO
WITH REGARD TO THE SUBJECT MATTER HEREOF, AND SUPERSEDES ANY AND ALL PRIOR
AGREEMENTS AND UNDERSTANDINGS RELATING TO THE SUBJECT MATTER HEREOF.
8.
AMENDMENTS. NO CHANGE, MODIFICATION OR
AMENDMENT OF ANY PROVISION OF THIS AGREEMENT SHALL BE VALID UNLESS MADE IN
WRITING AND SIGNED BY