MUTUALLY AGREED UPON BY EXECUTIVE) TO CONDUCT A VALUATION (THE
"INDEPENDENT VALUATION") OF THE FAIR MARKET VALUE, AND SUCH INVESTMENT BANKING
OR OTHER PROFESSIONAL VALUATION FIRM'S DETERMINATION OF FAIR MARKET VALUE SHALL
BE DELIVERED TO THE PARENT BOARD AND USED INSTEAD OF THE FAIR MARKET VALUE
PREVIOUSLY ASSERTED BY THE PARENT BOARD.
PARENT OR THE COMPANY, ON THE ONE
HAND, AND EXECUTIVE, ON THE OTHER HAND, SHALL BEAR EQUALLY THE COSTS AND FEES OF
SUCH INDEPENDENT INVESTMENT BANKING OR OTHER PROFESSIONAL VALUATION FIRM.
(C)
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN, IN THE EVENT
OF A PUT TERMINATION, EXECUTIVE MAY ELECT TO HAVE PARENT PURCHASE ALL OR ANY
PORTION OF THE SUBJECT SHARES BY DELIVERING WRITTEN NOTICE SETTING FORTH THE
NUMBER OF SUBJECT SHARES TO BE PURCHASED (THE "REPURCHASE NOTICE") TO THE PARENT
BOARD WITHIN 30 DAYS AFTER THE EFFECTIVE DATE OF EXECUTIVE'S RETIREMENT
DESCRIBED IN PARAGRAPH 10(A)(I).
WITHIN 30 DAYS FOLLOWING RECEIPT OF THE
REPURCHASE NOTICE, THE PARENT BOARD SHALL PROVIDE WRITTEN NOTICE TO EXECUTIVE OF
THE PARENT BOARD'S DETERMINATION OF FAIR MARKET VALUE OF THE SERIES A PREFERRED
STOCK AND THE COMMON STOCK, THE CALCULATION OF THE AGGREGATE PURCHASE PRICE FOR
THE SUBJECT SHARES AND THE DATE OF THE CLOSING OF THE PURCHASE OF SUCH SUBJECT
SHARES, WHICH DATE SHALL NOT BE MORE THAN 60 DAYS NOR LESS THAN 15 DAYS AFTER
THE DELIVERY OF THE REPURCHASE NOTICE (OR, IF APPLICABLE, FROM THE DATE ON WHICH
THE INDEPENDENT INVESTMENT BANKING OR OTHER PROFESSIONAL VALUATION FIRM HAS
PRESENTED ITS FAIR MARKET VALUE DETERMINATION TO THE PARENT BOARD).
PARENT
SHALL PAY THE AGGREGATE PURCHASE PRICE FOR THE SUBJECT SHARES TO BE PURCHASED
PURSUANT TO THE PUT OPTION BY IMMEDIATELY AVAILABLE FUNDS.
IN ADDITION, PARENT
MAY PAY THE PURCHASE PRICE FOR SUCH SHARES BY OFFSETTING BONA FIDE DEBTS OWED BY
EXECUTIVE TO PARENT OR ANY OF ITS SUBSIDIARIES.
PARENT AND ITS AFFILIATES SHALL
BE ENTITLED TO RECEIVE CUSTOMARY REPRESENTATIONS AND WARRANTIES (AND THERE SHALL
BE NO OTHER REPRESENTATIONS AND WARRANTIES AND THERE SHALL BE NO INDEMNIFICATION
OTHER THAN AS A RESULT OF THE BREACH OF SUCH AGREEMENT) FROM EXECUTIVE REGARDING
GOOD TITLE TO SUCH SHARES, THAT THE SHARES ARE FREE AND CLEAR OF ANY LIENS,
SECURITY INTERESTS, MORTGAGES, PLEDGES OR OTHER ENCUMBRANCES, THAT EXECUTIVE HAS
THE CAPACITY AND ALL NECESSARY AUTHORITY TO ENTER INTO SUCH AGREEMENT, THAT THE
AGREEMENT IS NOT IN VIOLATION OR CONTRAVENTION OF ANY OTHER AGREEMENT AND THAT
EXECUTIVE HAS CONSULTED WITH COUNSEL.
THERE SHALL BE NO REPRESENTATIONS OR
WARRANTIES OTHER THAN DESCRIBED IN THE PREVIOUS SENTENCE AND THE ONLY
INDEMNIFICATION OBLIGATION SHALL BE FOR A BREACH OF SUCH REPRESENTATIONS AND
WARRANTIES.
EXECUTIVE SHALL FURTHER AGREE TO RELEASE AND DISCHARGE ANY AND ALL
CLAIMS RELATED TO SUCH REPURCHASE.
(D)
THE REPURCHASE PAYMENTS PROVIDED FOR IN THIS PARAGRAPH 10 SHALL
BECOME DUE AND OWING IF, AND ONLY IF, EXECUTIVE HAS EXECUTED AND DELIVERED TO
PARENT AND THE COMPANY A GENERAL RELEASE AND THE GENERAL RELEASE HAS BECOME
EFFECTIVE.
8
(E)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED