TO EMPLOYEES OF
THE COMPANY OR ANY OF THE COMPANY'S SUBSIDIARIES SHALL NOT BE A BREACH OF THIS
PROVISION SO LONG AS MURPHY DOES NOT PARTICIPATE IN ANY MANNER (INCLUDING ANY
VETTING OR INTERVIEWING OF PROSPECTIVE EMPLOYEES).
2
(C)
COOPERATION.
FROM AND AFTER THE DATE HEREOF, MURPHY SHALL
REASONABLY COOPERATE WITH THE COMPANY AND ITS SUBSIDIARIES WITH RESPECT TO ALL
MATTERS ARISING DURING OR RELATED TO HIS EMPLOYMENT, INCLUDING ALL MATTERS
(FORMAL OR INFORMAL) IN CONNECTION WITH ANY GOVERNMENT INVESTIGATION, INTERNAL
INVESTIGATION, LITIGATION (POTENTIAL OR ONGOING), REGULATORY OR OTHER PROCEEDING
WHICH MAY HAVE ARISEN OR WHICH MAY HEREAFTER ARISE.
THE COMPANY WILL REIMBURSE
MURPHY FOR ALL OUT-OF -POCKET EXPENSES (NOT INCLUDING LOST TIME OR OPPORTUNITY),
AND WILL PROVIDE APPROPRIATE LEGAL REPRESENTATION IN A MANNER DETERMINED BY THE
COMPANY.
FROM AND AFTER THE DATE HEREOF THROUGH DECEMBER 31, 2010, MURPHY SHALL
ALSO REASONABLY COOPERATE WITH THE COMPANY AND ITS SUBSIDIARIES WITH RESPECT TO
TRANSITIONING HIS SERVICES TO THE SUCCESSOR TREASURER AND CHIEF FINANCIAL
OFFICER OF THE COMPANY.
SECTION 3.
RIGHTS AND REMEDIES UPON BREACH OF COVENANTS.
(A)
IF MURPHY BREACHES, OR THREATENS TO COMMIT A BREACH OF, ANY OF THE
PROVISIONS OF SECTION 2 (THE "RESTRICTIVE COVENANTS"), THE COMPANY SHALL HAVE
THE RIGHT AND REMEDY TO HAVE THE RESTRICTIVE COVENANTS SPECIFICALLY ENFORCED BY
ANY COURT HAVING EQUITY JURISDICTION, IT BEING ACKNOWLEDGED AND AGREED THAT ANY
SUCH BREACH OR THREATENED BREACH WILL CAUSE IRREPARABLE INJURY TO THE COMPANY,
THAT SUCH INJURY SHALL BE PRESUMED AND NEED NOT BE PROVEN, AND THAT MONEY
DAMAGES WILL NOT PROVIDE AN ADEQUATE REMEDY TO THE COMPANY.
SUCH RIGHTS AND
REMEDIES SHALL BE INDEPENDENT OF THE OTHERS AND SEVERALLY ENFORCEABLE, AND ALL
OF WHICH RIGHTS AND REMEDIES SHALL BE IN ADDITION TO, AND NOT IN LIEU OF, ANY
OTHER RIGHTS AND REMEDIES AVAILABLE TO THE COMPANY AT LAW OR IN EQUITY.
(B)
MURPHY ACKNOWLEDGES AND AGREES THAT THE RESTRICTIVE COVENANTS ARE
REASONABLE AND VALID IN DURATION, SCOPE AND IN ALL OTHER RESPECTS.
IF ANY COURT
DETERMINES THAT ANY OF THE RESTRICTIVE COVENANTS, OR ANY PART THEREOF, IS
INVALID OR UNENFORCEABLE, THE REMAINDER OF THE RESTRICTIVE COVENANTS SHALL NOT
THEREBY BE AFFECTED AND SHALL BE GIVEN FULL EFFECT TO THE GREATEST EXTENT
POSSIBLE, WITHOUT REGARD TO THE INVALID PORTIONS.
(C)
IF ANY COURT CONSTRUES ANY OF THE RESTRICTIVE COVENANTS, OR ANY
PART THEREOF, TO BE UNENFORCEABLE BECAUSE OF THE DURATION OF SUCH PROVISION OR
THE SCOPE, SUCH COURT SHALL HAVE THE POWER TO REDUCE THE DURATION OR SCOPE OF
SUCH PROVISION AND, IN ITS REDUCED FORM, SUCH PROVISION SHALL BE ENFORCEABLE AND
SHALL BE ENFORCED TO THE GREATEST EXTENT POSSIBLE.
SECTION 4.
REPRESENTATIONS.
WITH RESPECT TO THE PERIOD DURING WHICH HE HAS
BEEN EMPLOYED BY THE COMPANY, MURPHY REPRESENTS, TO THE BEST OF HIS KNOWLEDGE
AND BELIEF, THAT (I) NEITHER THE FINANCIAL BOOKS AND RECORDS OF THE COMPANY AND
ITS SUBSIDIARIES NOR ANY REGULATORY FILINGS OF THE COMPANY OR ANY OF ITS
SUBSIDIARIES WITH THE SECURITIES AND EXCHANGE COMMISSION PRESENT ANY ACCOUNTING
IRREGULARITIES AND THAT ALL FINANCIAL