THAT ANY PARTY MAY IN ITS SOLE DISCRETION APPLY
TO ANY COURT OF LAW OR EQUITY OF COMPETENT JURISDICTION (WITHOUT POSTING ANY
BOND OR DEPOSIT) FOR SPECIFIC PERFORMANCE AND/OR OTHER INJUNCTIVE RELIEF IN
ORDER TO ENFORCE OR PREVENT ANY VIOLATIONS OF THE PROVISIONS OF THIS AGREEMENT.
(H)
AMENDMENT AND WAIVER.
THE PROVISIONS OF
THIS AGREEMENT MAY BE AMENDED AND WAIVED WITH RESPECT TO ANY EXECUTIVE ONLY WITH
THE PRIOR WRITTEN CONSENT OF THE COMPANY AND EITHER (I) SUCH EXECUTIVE OR (II)
THE HOLDERS OF A MAJORITY OF THE SHARES OF COMMON STOCK HELD BY ALL EXECUTIVES;
PROVIDED THAT THIS AGREEMENT MAY BE AMENDED AND WAIVED WITH RESPECT TO MDCP'S
RIGHTS HEREUNDER ONLY WITH THE PRIOR WRITTEN CONSENT OF MDCP.
(I)
THIRD-PARTY BENEFICIARIES.
CERTAIN
PROVISIONS OF THIS AGREEMENT ARE ENTERED INTO FOR THE BENEFIT OF AND SHALL BE
ENFORCEABLE BY MDCP AS PROVIDED HEREIN.
(J)
BUSINESS DAYS.
IF ANY TIME PERIOD FOR
GIVING NOTICE OR TAKING ACTION HEREUNDER EXPIRES ON A DAY WHICH IS A SATURDAY,
SUNDAY OR LEGAL HOLIDAY IN THE STATE IN WHICH THE COMPANY'S CHIEF EXECUTIVE
OFFICE IS LOCATED, THE TIME PERIOD SHALL BE AUTOMATICALLY EXTENDED TO THE
BUSINESS DAY IMMEDIATELY FOLLOWING SUCH SATURDAY, SUNDAY OR HOLIDAY.
(K)
RIGHTS OF THE COMPANY.
NOTHING IN THIS
AGREEMENT SHALL INTERFERE WITH OR LIMIT IN ANY WAY THE RIGHT OF THE COMPANY TO
TERMINATE AN EXECUTIVE'S EMPLOYMENT 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.
(L)
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 ON 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.
(M)
INTERPRETATION.
WHEN USED HEREIN, THE COMMON
STOCK SHALL BE DEEMED TO BE ONE "TYPE" OF CAPITAL STOCK OF THE COMPANY AND THE
PREFERRED STOCK SHALL BE DEEMED TO BE A DIFFERENT "TYPE" OF CAPITAL STOCK OF THE
COMPANY.
16.
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 CODE AND/OR ANY CORRESPONDING
AND APPLICABLE STATE LAW PROVISION, SUCH PAYMENTS OR BENEFITS PROVIDED TO SUCH
EXECUTIVE SHALL BE REDUCED BY REDUCING THE AMOUNT OF PAYMENTS OR BENEFITS
PAYABLE TO SUCH EXECUTIVE TO THE EXTENT NECESSARY SO THAT NO PORTION OF SUCH
PAYMENTS OR BENEFITS SHALL BE SUBJECT TO THE EXCISE TAX IMPOSED BY SECTION 4999
OF