HIS EMPLOYMENT WITH THE COMPANY AND ADDITIONAL GOOD
AND VALUABLE CONSIDERATION SET FORTH IN THIS
6
AGREEMENT.
IN ADDITION, EXECUTIVE AGREES AND ACKNOWLEDGES THAT THE RESTRICTIONS
CONTAINED IN PARAGRAPHS 5, 6 AND 7 DO NOT PRECLUDE EXECUTIVE FROM EARNING A
LIVELIHOOD, NOR DO THEY UNREASONABLY IMPOSE LIMITATIONS ON EXECUTIVE'S ABILITY
TO EARN A LIVING.
IN ADDITION, EXECUTIVE ACKNOWLEDGES (A) THAT THE BUSINESS OF
THE COMPANY AND ITS SUBSIDIARIES WILL INCLUDE ALL OF NORTH AMERICA, (B)
NOTWITHSTANDING THE STATE OF INCORPORATION OR PRINCIPAL OFFICE OF THE COMPANY OR
ITS SUBSIDIARIES, OR ANY OF THEIR RESPECTIVE EXECUTIVES OR EMPLOYEES (INCLUDING
EXECUTIVE), IT IS EXPECTED THAT THE COMPANY WILL HAVE BUSINESS ACTIVITIES AND
HAVE VALUABLE BUSINESS RELATIONSHIPS WITHIN ITS INDUSTRY THROUGHOUT NORTH
AMERICA, AND (C) AS PART OF HIS RESPONSIBILITIES, EXECUTIVE MAY TRAVEL AROUND
NORTH AMERICA IN FURTHERANCE OF THE COMPANY'S BUSINESS AND ITS RELATIONSHIPS.
(B)
EXECUTIVE HEREBY REPRESENTS AND WARRANTS TO THE COMPANY AND PARENT
THAT (I) THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT BY EXECUTIVE
DO NOT AND SHALL NOT CONFLICT WITH, BREACH, VIOLATE OR CAUSE A DEFAULT UNDER ANY
CONTRACT, AGREEMENT, INSTRUMENT, ORDER, JUDGMENT OR DECREE TO WHICH EXECUTIVE IS
A PARTY OR BY WHICH HE IS BOUND, (II) EXCEPT FOR THE EXISTING AGREEMENT (WHICH
SHALL BE DEEMED TO BE SUPERCEDED AND PREEMPTED EFFECTIVE AS OF THE EFFECTIVE
DATE, EXECUTIVE IS NOT A PARTY TO OR BOUND BY ANY EMPLOYMENT AGREEMENT,
NONCOMPETE AGREEMENT OR CONFIDENTIALITY AGREEMENT WITH ANY OTHER PERSON OR
ENTITY AND (III) UPON THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE
COMPANY AND PARENT, THIS AGREEMENT SHALL BE THE VALID AND BINDING OBLIGATION OF
EXECUTIVE, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS.
EXECUTIVE HEREBY
ACKNOWLEDGES AND REPRESENTS THAT HE HAS CONSULTED WITH INDEPENDENT LEGAL COUNSEL
REGARDING HIS RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT AND THAT HE FULLY
UNDERSTANDS THE TERMS AND CONDITIONS CONTAINED HEREIN.
10.
CALL.
(A)
IN THE EVENT (I) EXECUTIVE'S EMPLOYMENT WITH THE COMPANY AND ITS
SUBSIDIARIES IS TERMINATED BY THE COMPANY FOR CAUSE, (II) EXECUTIVE'S EMPLOYMENT
WITH THE COMPANY AND ITS SUBSIDIARIES IS TERMINATED BY EXECUTIVE FOR ANY REASON
(OTHER THAN A TERMINATION OF EMPLOYMENT BY EXECUTIVE FOR GOOD REASON) OR (III)
THE EMPLOYMENT PERIOD IS TERMINATED DUE TO EXECUTIVE'S DEATH OR DISABILITY, THEN
IN THE CASE OF ANY TERMINATION OF EXECUTIVE'S EMPLOYMENT DESCRIBED ABOVE, 100%
OF THE SHARES OF COMMON STOCK AND 100% OF THE SHARES OF SERIES A PREFERRED STOCK
ACQUIRED BY EXECUTIVE PURSUANT TO THE STOCK PURCHASE AGREEMENT (COLLECTIVELY,
THE "CALL OPTION SHARES") HELD BY EXECUTIVE (OR ANY OF HIS TRANSFEREES) SHALL BE
SUBJECT TO REPURCHASE BY PARENT AND THE INVESTOR PURSUANT TO THE TERMS AND
CONDITIONS SET FORTH IN THIS PARAGRAPH 10 (THE "CALL OPTION").
FOR PURPOSES
HEREOF, "INVESTOR" SHALL MEAN OLYMPUS GROWTH FUND IV, L.P. AND ITS AFFILIATES.
FOR PURPOSES OF THIS AGREEMENT, THE TERM "ORIGINAL COST" FOR (1) EACH SHARE OF
COMMON STOCK SHALL BE EQUAL TO THE ORIGINAL PRICE PER SHARE PAID THEREFOR BY
INVESTOR UNDER THE STOCK PURCHASE AGREEMENT, AND (2) FOR EACH SHARE OF