PWSC, L.L.C. and LM
Industries, L.L.C.
36
(B)
THE CONSIDERATION FOR THIS AGREEMENT BY SELLERS IS THE PAYMENT BY
PURCHASER OF THE SUM OF ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00)
CASH TO SELLERS ON THE CLOSING DATE IN PROPORTION TO THEIR SHARES OF CASH AT
CLOSING.
(C)
THE SELLERS ACKNOWLEDGE THAT THE COVENANTS CONTAINED IN THIS
AGREEMENT ARE MADE ANCILLARY TO THE SALE OF THE SHARES AND MEMBERSHIP INTERESTS
BY THE SELLERS, ARE REASONABLY NECESSARY TO PROTECT THE BUSINESS, AND THE TRADE
SECRETS AND GOODWILL THEREOF, BEING ACQUIRED BY PURCHASER, AND DO NOT IMPOSE AN
UNDUE OR UNREASONABLE HARDSHIP UPON THE SELLERS.
THE SELLERS ACKNOWLEDGE
FURTHER THAT PURCHASER CONSIDERS THE COVENANTS CONTAINED HEREIN TO BE
FUNDAMENTAL CONDITIONS FOR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT, AND THAT PURCHASER WOULD NOT CONSUMMATE SUCH TRANSACTIONS IN THE
ABSENCE OF SUCH COVENANTS.
(D)
IN THE EVENT OF A BREACH BY ANY SELLER OF THE PROVISIONS OF THIS
SECTION 4.1, PURCHASER MAY, BUT SHALL NOT BE REQUIRED TO, OFFSET THAT SELLER'S
PORTION OF THE UNPAID PORTION OF THE EARNOUT BY THE AMOUNT OF ACTUAL DAMAGES
SUSTAINED BY PURCHASER AS A RESULT THEREOF, FIRST, BEFORE SEEKING PAYMENT FROM
THAT SELLER.
(E)
PURCHASER AND THE SELLERS EACH AGREE THAT IT IS THEIR INTENTION
THAT IF ANY PORTION OF THIS AGREEMENT IS FOUND BY A COURT OF COMPETENT
JURISDICTION TO BE UNENFORCEABLE, INCLUDING, WITHOUT LIMITATION, AS TO THE
DURATION, GEOGRAPHIC AREA OR SCOPE OF ACTIVITIES COVERED BY THE COVENANTS
CONTAINED HEREIN, THIS AGREEMENT SHALL BE REFORMED BY THE COURT TO GIVE
PURCHASER THE MAXIMUM PROTECTION PERMITTED BY LAW AND, AS REFORMED, SHALL BE
AGREED TO BY THE PARTIES AND ENFORCED BY THE COURT PROSPECTIVELY.
IF ANY
PROVISION OF THIS AGREEMENT SHALL BE HELD BY ANY COURT OF COMPETENT JURISDICTION
TO BE ILLEGAL, VOID OR UNENFORCEABLE, AND SHALL NOT BE REFORMED AS SET FORTH IN
THE IMMEDIATELY PRECEDING SENTENCE, SUCH PROVISION SHALL BE OF NO FORCE OR
EFFECT, BUT
37
THE ILLEGALITY AND UNENFORCEABILITY OF SUCH PROVISION SHALL HAVE NO EFFECT UPON
AND SHALL NOT IMPAIR THE ENFORCEABILITY OF ANY OTHER PROVISION OF THIS
AGREEMENT.
4.2
CONDUCT OF THE BUSINESS.
From the date hereof until the Closing Date, Sellers shall cause the Companies
to conduct the Business in the ordinary course consistent with past practice and
use the Companies' best efforts to preserve intact its business organization and
relationships with third parties and to keep available the services of its
present officers and employees.
Without limiting the generality of the
foregoing, from the date hereof until the Closing Date, without the prior
written consent of Purchaser, Sellers shall not cause the Companies to:
(A)
MERGE OR CONSOLIDATE WITH ANY OTHER PERSON OR ACQUIRE THE ASSETS OF
ANY OTHER PERSON, OTHER THAN PIPE, TOOLS AND EQUIPMENT PURCHASED IN THE ORDINARY
COURSE OF THE BUSINESS;
(B)
SELL, LEASE, LICENSE OR OTHERWISE DISPOSE OF ANY ASSETS EXCEPT (1)
PURSUANT TO EXISTING CONTRACTS OR COMMITMENTS, AND (2) IN THE ORDINARY COURSE OF
THE BUSINESS CONSISTENT WITH PAST