RESPECT TO THE COMPANY OR (II) AS A HOLDER OF
EQUITY OR DEBT SECURITIES IN A CORPORATION WHICH HAS A CLASS OF SECURITIES THAT
IS PUBLICLY TRADED ON A STOCK EXCHANGE OR THE RECOGNIZED OVER-THE-COUNTER
MARKET, AND THEN ONLY TO THE EXTENT OF OWNING NOT MORE THAN TWO PERCENT (2%) OF
THE ISSUED AND OUTSTANDING DEBT OR EQUITY SECURITIES OF SUCH CORPORATION).
(B)
EACH EXECUTIVE ACKNOWLEDGES AND AGREES THAT THE REMEDY AT LAW FOR ANY
BREACH, OR THREATENED BREACH, OF ANY OF THE PROVISIONS OF THIS SECTION 7 WILL BE
INADEQUATE AND, ACCORDINGLY, EACH EXECUTIVE COVENANTS AND AGREES THAT THE
COMPANY SHALL, IN ADDITION TO ANY OTHER RIGHTS AND REMEDIES WHICH THE COMPANY
MAY HAVE, BE ENTITLED TO EQUITABLE RELIEF, INCLUDING INJUNCTIVE RELIEF, AND TO
THE REMEDY OF SPECIFIC PERFORMANCE WITH RESPECT TO ANY BREACH OR THREATENED
BREACH OF SUCH COVENANT, AS MAY BE AVAILABLE FROM ANY COURT OF COMPETENT
JURISDICTION. SUCH RIGHT TO OBTAIN EQUITABLE RELIEF MAY BE EXERCISED, AT THE
OPTION OF THE COMPANY, CONCURRENTLY WITH, PRIOR TO, AFTER, OR IN LIEU OF, THE
EXERCISE OF ANY OTHER RIGHTS OR REMEDIES WHICH THE COMPANY MAY HAVE AS A RESULT
OF ANY SUCH BREACH OR THREATENED BREACH. IN THE EVENT THAT THE PROVISIONS OF
THIS SECTION 7 SHALL BE DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE
UNENFORCEABLE UNDER APPLICABLE LAW AS TO THAT JURISDICTION (THE PARTIES AGREEING
THAT SUCH DECISION SHALL NOT BE BINDING, RES JUDICATA OR COLLATERAL ESTOPPEL IN
ANY OTHER JURISDICTION) FOR ANY REASON WHATSOEVER, THEN ANY SUCH PROVISION OR
PROVISIONS SHALL NOT BE DEEMED VOID, BUT THE PARTIES HERETO AGREE THAT SAID
LIMITS MAY BE MODIFIED BY THE COURT AND THAT SAID COVENANT CONTAINED IN THIS
SECTION 7 SHALL BE AMENDED IN ACCORDANCE WITH SAID MODIFICATIONS, IT BEING
SPECIFICALLY AGREED BY EACH EXECUTIVE AND THE COMPANY THAT IT IS THEIR
CONTINUING DESIRE THAT THIS COVENANT BE ENFORCED TO THE FULL EXTENT OF ITS TERMS
AND CONDITIONS OR IF A COURT FINDS THE SCOPE OF THE COVENANT UNENFORCEABLE, THE
COURT SHOULD REDEFINE THE COVENANT SO AS TO COMPLY WITH APPLICABLE LAW.
8.
DEFINITIONS.
(A)
"1933 ACT" MEANS THE SECURITIES ACT OF 1933, AS AMENDED FROM TIME TO TIME.
(B)
"ADDITIONAL PER SHARE MERGER CONSIDERATION" SHALL HAVE THE MEANING GIVEN
TO SUCH TERM IN THE MERGER AGREEMENT.
(C)
"AFFILIATE" HAS THE MEANING SET FORTH IN RULE 12B-2 OF THE RULES
PROMULGATED UNDER THE EXCHANGE ACT.
(D)
"BOARD" SHALL MEAN THE BOARD OF DIRECTORS OF THE COMPANY.
(E)
"CAUSE" SHALL MEAN THE EXECUTIVE'S (I) ACT OR ACTS OF DISHONESTY, MORAL
TURPITUDE OR CRIMINALITY, (II) CONTINUED FAILURE TO PERFORM SUCH EXECUTIVE'S
DUTIES AS AN EMPLOYEE, AS REASONABLY DETERMINED BY THE BOARD OF DIRECTORS OF THE
COMPANY ACTING IN GOOD FAITH, AFTER REASONABLE NOTICE OF SUCH FAILURE IS GIVEN
TO SUCH EMPLOYEE BY THE BOARD OF DIRECTORS OF THE COMPANY, FOR A PERIOD OF 30
DAYS AFTER SUCH NOTICE AND OPPORTUNITY TO CURE SUCH FAILURE, OR
7
(III) WILLFUL OR DELIBERATE VIOLATIONS OF SUCH EXECUTIVE'S OBLIGATIONS TO THE