AND
THE INVESTOR.
THE COSTS OF CONDUCTING ANY APPRAISAL PROCEDURE SHALL BE BORNE BY
THE COMPANY.
(II)
"FAIR MARKET VALUE" MEANS, WITH RESPECT TO ANY SECURITY, THE FAIR
MARKET VALUE OF SUCH SECURITY AS DETERMINED BY THE BOARD OF DIRECTORS, ACTING IN
GOOD FAITH IN RELIANCE ON AN OPINION OF A NATIONALLY RECOGNIZED INDEPENDENT
INVESTMENT BANKING FIRM RETAINED BY THE COMPANY FOR THIS PURPOSE AND CERTIFIED
IN A RESOLUTION TO THE INVESTOR.
IF THE INVESTOR DOES NOT AGREE WITH THE BOARD
OF DIRECTOR'S DETERMINATION, IT MAY OBJECT IN WRITING WITHIN 10 DAYS OF RECEIPT
OF THE BOARD OF DIRECTOR'S DETERMINATION. IN THE EVENT OF SUCH AN OBJECTION, AN
AUTHORIZED REPRESENTATIVE OF THE INVESTOR AND THE CHIEF EXECUTIVE OFFICER OF THE
COMPANY SHALL PROMPTLY MEET TO RESOLVE THE OBJECTION AND TO AGREE UPON THE FAIR
MARKET VALUE. IF THE CHIEF EXECUTIVE OFFICER AND THE AUTHORIZED REPRESENTATIVE
ARE UNABLE TO AGREE ON THE FAIR MARKET VALUE DURING THE 10-DAY PERIOD FOLLOWING
THE DELIVERY OF THE INVESTOR'S OBJECTION, THE APPRAISAL PROCEDURE MAY BE INVOKED
BY EITHER PARTY TO DETERMINE THE FAIR MARKET VALUE BY DELIVERY OF A WRITTEN
NOTIFICATION THEREOF NOT LATER THAN THE 30TH DAY AFTER DELIVERY OF THE
INVESTOR'S OBJECTION.
4.10
EXECUTIVE COMPENSATION.
UNTIL SUCH TIME AS THE INVESTOR CEASES TO
OWN ANY DEBT OR EQUITY SECURITIES OF THE COMPANY ACQUIRED PURSUANT TO THIS
AGREEMENT OR THE WARRANT, THE COMPANY SHALL TAKE ALL NECESSARY ACTION TO ENSURE
THAT ITS BENEFIT PLANS WITH RESPECT TO ITS SENIOR EXECUTIVE OFFICERS COMPLY IN
ALL RESPECTS WITH SECTION 111(B) OF THE EESA AS IMPLEMENTED BY ANY GUIDANCE OR
REGULATION THEREUNDER THAT HAS BEEN ISSUED AND IS IN EFFECT AS OF THE CLOSING
DATE, AND SHALL NOT ADOPT ANY NEW BENEFIT PLAN WITH RESPECT TO ITS SENIOR
EXECUTIVE OFFICERS THAT DOES NOT COMPLY THEREWITH.
"SENIOR EXECUTIVE OFFICERS"
MEANS THE COMPANY'S "SENIOR EXECUTIVE OFFICERS" AS DEFINED IN SUBSECTION
111(B)(3) OF THE EESA AND REGULATIONS ISSUED THEREUNDER, INCLUDING THE RULES SET
FORTH IN 31 C.F.R. PART 30.
ARTICLE V
MISCELLANEOUS
5.1
TERMINATION. THIS AGREEMENT MAY BE TERMINATED AT ANY TIME PRIOR TO
THE CLOSING:
(A)
BY EITHER THE INVESTOR OR THE COMPANY IF THE CLOSING SHALL NOT
HAVE OCCURRED BY THE 30TH CALENDAR DAY FOLLOWING THE SIGNING DATE; PROVIDED,
HOWEVER, THAT IN THE EVENT THE CLOSING HAS NOT OCCURRED BY SUCH 30TH CALENDAR
DAY, THE PARTIES WILL CONSULT IN GOOD FAITH TO DETERMINE WHETHER TO EXTEND THE
TERM OF THIS AGREEMENT, IT BEING UNDERSTOOD THAT THE PARTIES SHALL BE REQUIRED
TO CONSULT ONLY UNTIL THE FIFTH DAY AFTER SUCH 30TH CALENDAR DAY AND NOT BE
UNDER ANY
33
OBLIGATION TO EXTEND THE TERM OF THIS AGREEMENT THEREAFTER; PROVIDED, FURTHER,
THAT THE RIGHT TO TERMINATE THIS AGREEMENT UNDER THIS SECTION 5.1(A) SHALL NOT
BE AVAILABLE TO ANY PARTY WHOSE BREACH OF ANY REPRESENTATION OR WARRANTY OR
FAILURE TO PERFORM ANY OBLIGATION UNDER THIS AGREEMENT SHALL HAVE CAUSED OR
RESULTED IN THE FAILURE OF THE CLOSING TO OCCUR ON OR PRIOR TO SUCH DATE; OR
(B)
BY EITHER THE