THE RESTRICTIONS CONTAINED HEREIN TO COVER THE MAXIMUM PERIOD,
SCOPE AND AREA PERMITTED BY LAW.
(H)
NOTWITHSTANDING ANYTHING ELSE IN THIS SECTION 6.3, THE RESTRICTED
PERIOD SHALL TERMINATE IF ALL OF SELLER'S ISSUED AND OUTSTANDING COMMON STOCK
(WHICH IS CURRENTLY TRADED ON NASDAQ) IS ACQUIRED BY A PERSON IN A MANNER THAT
RESULTS IN SELLER CEASING TO BE A PUBLICLY TRADED COMPANY.
6.4.
SELLER BUY-OUT OPTION.
NOTWITHSTANDING ANYTHING CONTAINED IN SECTION
6.3(B) OR SECTION 8.2, SELLER MAY ELECT TO TERMINATE THE OBLIGATIONS SET FORTH
IN SECTION 6.3(B) AND SECTION 8.2 AT AN EARLIER DATE BY MAKING A ONE-TIME
PAYMENT OF ANY OF THE AMOUNTS ("USE PAYMENTS") TO THE BUYER AS DESCRIBED IN THIS
SECTION 6.4.
IF THE SELLER MAKES A USE PAYMENT TO THE BUYER OF $3,000,000
ANYTIME AFTER THE SECOND ANNIVERSARY OF THE DATE HEREOF, $2,000,000 ANYTIME
AFTER THE THIRD ANNIVERSARY OF THE DATE HEREOF, OR $1,000,000 ANYTIME AFTER THE
FOURTH ANNIVERSARY OF THE DATE HEREOF ALL OBLIGATIONS/RESTRICTIONS SET FORTH IN
SECTION 6.3(B) AND SECTION 8.2 SHALL AUTOMATICALLY TERMINATE.
SELLER MAY MAKE A
USE PAYMENT BY WAY OF SET-OFF AGAINST THE AMOUNTS OWING TO THE SELLER PURSUANT
TO THE JUNIOR SELLER NOTE BY DELIVERY OF WRITTEN NOTICE OF SUCH SET-OFF TO BUYER
AND AS DESCRIBED IN THE JUNIOR SELLER NOTE.
FOR PURPOSES OF THE JUNIOR SELLER
NOTE ANY SUCH SET-OFF PAYMENT WILL BE TREATED AS IF SUCH PAYMENT WERE MADE AT
THE DATE THEREOF AND ANY INTEREST AMOUNT THAT WOULD HAVE BEEN DUE AND PAYABLE
SHALL REMAIN PAYABLE PURSUANT TO THE TERMS OF SUCH JUNIOR SELLER NOTE.
6.5.
FURTHER ASSURANCES.
EACH PARTY WILL EXECUTE AND DELIVER SUCH FURTHER
INSTRUMENTS OF CONVEYANCE AND TRANSFER AND TAKE SUCH ADDITIONAL ACTIONS AS ANY
OTHER PARTY MAY REASONABLY REQUEST TO EFFECT, CONSUMMATE, CONFIRM OR EVIDENCE
THE TRANSACTIONS CONTEMPLATED HEREBY AND WILL ACT IN A GOOD FAITH, REASONABLE
MANNER WITH RESPECT TO SUCH ADDITIONAL ACTIONS
34
6.6.
MERCHANT CREDIT CARD PROCESSING ACCOUNT.
SELLER HEREBY ACKNOWLEDGES THAT
AFTER THE CLOSING THE COMPANY WILL WORK TO ESTABLISH ITS OWN MERCHANT CREDIT
CARD PROCESSING ACCOUNT (A "COMPANY MCCP ACCOUNT").
SELLER AGREES THAT IF IN
CONNECTION THEREWITH, IT WOULD BE USEFUL FOR THE BUYER TO PROVIDE A FIRST
PRIORITY PLEDGE OF THE SHARES TO THE PROVIDER OF SUCH COMPANY MCCP ACCOUNT, THEN
SELLER WILL (I) PERMIT SUCH FIRST PRIORITY PLEDGE OF THE SHARES, (II) AMEND THE
PLEDGE AGREEMENT TO THE EXTENT NECESSARY FOR BUYER TO PUT IN PLACE SUCH FIRST
PRIORITY PLEDGE OF THE SHARES (WITH THE UNDERSTANDING THAT THE PLEDGE AGREEMENT
WILL REMAIN IN PLACE AS A SECOND PRIORITY PLEDGE OF THE SHARES) AND (III) TAKE
SUCH OTHER ACTIONS AS MAY BE REASONABLY NECESSARY FOR BUYER TO PUT IN PLACE SUCH
FIRST PRIORITY PLEDGE OF THE SHARES (INCLUDING, WITHOUT LIMITATION, THE DELIVERY
OF THE STOCK CERTIFICATE(S) THAT REPRESENT THE SHARES TO THE PROVIDER OF SUCH
COMPANY MCCP ACCOUNT).
MOREOVER, SHOULD THERE BE ANY COST OR FEE ASSOCIATED
WITH SELLER GRANTING A FIRST PRIORITY PLEDGE FOR A COMPANY MCCP ACCOUNT,
INCLUDING, BUT NOT LIMITED TO ANY FEE