AT ANY TIME (WITH OR WITHOUT CAUSE), NOR CONFER UPON ANY EXECUTIVE ANY RIGHT TO
CONTINUE IN THE EMPLOY OF THE COMPANY FOR ANY PERIOD OF TIME OR TO CONTINUE HIS
OR HER PRESENT (OR ANY OTHER) RATE OF COMPENSATION.
(K)
TERMINATION.
UNLESS OTHERWISE SPECIFIED HEREIN, THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL TERMINATE AUTOMATICALLY AND WITHOUT
FURTHER ACTION ON THE PART OF ANY PARTY HERETO UPON CONSUMMATION OF A SALE OF
THE COMPANY; PROVIDED THAT NO SUCH TERMINATION SHALL IMPAIR THE RIGHTS OF ANY
PARTY HERETO WITH RESPECT TO ANY BREACH OF THIS AGREEMENT ARISING PRIOR TO SUCH
TERMINATION.
(L)
PRIOR AGREEMENT.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THIS
AGREEMENT SHALL AMEND AND REPLACE THE PRIOR AGREEMENT IMMEDIATELY UPON, BUT ONLY
UPON, THE EFFECTIVE TIME; PROVIDED THAT (I) UNLESS AND UNTIL THE EFFECTIVE TIME
OCCURS, THE PRIOR AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT AND (II) NO
AMENDMENT AND RESTATEMENT OF THE PRIOR AGREEMENT SHALL RELIEVE ANY PARTY OF
LIABILITY FOR BREACH ARISING PRIOR TO SUCH AMENDMENT AND RESTATEMENT.
EACH
PARTY (INCLUDING THE COMPANY) ACKNOWLEDGES AND AGREES THAT PROMPTLY AFTER THE
CLOSING CONTEMPLATED BY THE MERGER, IT IS CONTEMPLATED THAT THE HOLDCO MERGER
WILL OCCUR AND THAT EFFECTIVE AS OF IMMEDIATELY PRIOR TO THE CONSUMMATION OF THE
HOLDCO MERGER, WITHOUT FURTHER ACTION ON THE PART OF ANY PARTY HERETO, THE
COMPANY DOES HEREBY ASSIGN TO HOLDCO, AND HOLDCO DOES ASSUME, ALL RIGHTS AND
OBLIGATIONS OF THE COMPANY HEREUNDER AND FROM AND AFTER THE EFFECTIVENESS OF
SUCH ASSIGNMENT HOLDCO SHALL BE "THE COMPANY" FOR ALL PURPOSES OF THIS
12
AGREEMENT AND ALL RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL
AUTOMATICALLY SURVIVE THE MERGER, THE HOLDCO MERGER AND THE POST-CLOSING
MERGERS.
(M)
STOCK CERTIFICATES.
BY AN EXECUTIVE'S EXECUTION HEREOF, EXECUTIVE AGREES
THAT THE COMPANY MAY RETAIN FOR EXECUTIVE'S BENEFIT, ANY CERTIFICATE
REPRESENTING (I) UNVESTED SHARES AND (II) ANY EXECUTIVE STOCK WHICH MAY NOT THEN
BE TRANSFERRED BY EXECUTIVE AS A RESULT OF ANY LOCK-UP OR CONTRACTUAL
RESTRICTION TO WHICH SUCH EXECUTIVE IS PARTY OR ANY LAW OR COMPANY POLICY TO
WHICH SUCH SHARES ARE SUBJECT.
(N)
THIRD-PARTY BENEFICIARY.
EACH EXECUTIVE ACKNOWLEDGES AND AGREES THAT THE
REPRESENTATIONS AND WARRANTIES OF SUCH EXECUTIVE IN SECTION 2 OF THIS AGREEMENT
ARE BEING RELIED UPON BY WINSTON & STRAWN LLP IN CONNECTION WITH AN OPINION
BEING DELIVERED BY WINSTON & STRAWN LLP TO GLDD IN CONNECTION WITH THE MERGER
AND SUCH EXECUTIVE AGREES THAT WINSTON & STRAWN LLP MAY RELY ON SUCH
REPRESENTATIONS AND WARRANTIES OF SUCH EXECUTIVE IN DELIVERING SUCH OPINION.
11.
CODE SECTION 280G.
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE
CONTRARY, IF ALL OR ANY PORTION OF THE PAYMENTS OR BENEFITS RECEIVED OR REALIZED
BY ANY EXECUTIVE PURSUANT TO THIS AGREEMENT EITHER ALONE OR TOGETHER WITH OTHER
PAYMENTS OR BENEFITS WHICH SUCH EXECUTIVE RECEIVES OR REALIZES OR IS THEN
ENTITLED TO RECEIVE OR REALIZE FROM THE COMPANY OR ANY OF ITS AFFILIATES WOULD
CONSTITUTE AN "EXCESS PARACHUTE PAYMENT" WITHIN THE MEANING OF SECTION 280G OF
THE