THIS SECTION 7) AT THE FIRST OPPORTUNITY WHEN THE COMPANY HAS
FUNDS LEGALLY AVAILABLE THEREFOR AND WHEN SUCH REPURCHASE WILL NOT RESULT IN ANY
DEFAULT, EVENT OF DEFAULT OR VIOLATION UNDER ANY OF THE FINANCING AGREEMENTS OR
IN A VIOLATION OF ANY TERM OR PROVISION OF THE CERTIFICATE OF INCORPORATION OF
THE COMPANY AND (II) SUCH REPURCHASE OBLIGATION SHALL RANK AGAINST OTHER SIMILAR
REPURCHASE OBLIGATIONS WITH RESPECT TO SHARES OF COMMON STOCK ACCORDING TO
PRIORITY IN TIME OF THE EFFECTIVE DATE OF THE TERMINATION OF EMPLOYMENT GIVING
RISE TO SUCH REPURCHASE; PROVIDED, THAT ANY SUCH REPURCHASE OBLIGATIONS AS TO
WHICH A COMMON DATE DETERMINES PRIORITY SHALL BE OF EQUAL PRIORITY AND SHALL
SHARE PRO RATA IN ANY REPURCHASE PAYMENTS MADE PURSUANT TO CLAUSE (I) OF THIS
SECTION 7(B); AND PROVIDED, FURTHER, THAT ANY REPURCHASE COMMITMENT ARISING FROM
DEATH, DISABILITY, OR RETIREMENT OR THE COMPARABLE PROVISIONS OF ANY OTHER
APPLICABLE SUBSCRIPTION AGREEMENTS SHALL HAVE PRIORITY OVER ANY OTHER REPURCHASE
OBLIGATION.
(C)
PURCHASE PRICE ADJUSTMENT.
IN THE EVENT THAT A REPURCHASE OF
SHARES FROM THE PURCHASER IS DELAYED PURSUANT TO THIS SECTION 7, THE PURCHASE
PRICE PER SHARE WHEN THE REPURCHASE OF SUCH SHARES EVENTUALLY TAKES PLACE AS
CONTEMPLATED BY SECTION 7(B) SHALL EQUAL THE SUM OF (I) THE PURCHASE PRICE
DETERMINED IN ACCORDANCE WITH SECTION 5 AT THE TIME THAT THE REPURCHASE OF SUCH
SHARES WOULD HAVE OCCURRED BUT FOR THE OPERATION OF THIS SECTION 7, PLUS (II) AN
AMOUNT EQUAL TO INTEREST ON SUCH PURCHASE PRICE FOR THE PERIOD FROM THE DATE ON
WHICH THE COMPLETION OF THE REPURCHASE WOULD HAVE TAKEN PLACE BUT FOR THE
OPERATION OF THIS SECTION 7 TO THE DATE ON WHICH SUCH REPURCHASE ACTUALLY TAKES
PLACE (THE "DELAY PERIOD") AT A RATE EQUAL TO THE AVERAGE ANNUAL COST TO THE
COMPANY OF ITS AND ITS SUBSIDIARIES BANK INDEBTEDNESS OBLIGATIONS OUTSTANDING
DURING THE DELAY PERIOD OR, IF THERE ARE NO SUCH OBLIGATIONS OUTSTANDING, ONE
PERCENTAGE POINT GREATER THAN THE AVERAGE PRIME RATE CHARGED DURING SUCH PERIOD
BY ANY NATIONALLY RECOGNIZED BANK DESIGNATED BY THE COMPANY.
8.
MISCELLANEOUS.
(A)
BINDING EFFECT; BENEFITS; ASSIGNABILITY.
THIS AGREEMENT SHALL BE
BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES TO THIS AGREEMENT AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS.
NOTHING IN THIS AGREEMENT, EXPRESS OR
IMPLIED, IS INTENDED OR SHALL BE CONSTRUED TO GIVE ANY PERSON OTHER THAN THE
PARTIES TO THIS AGREEMENT OR THEIR RESPECTIVE SUCCESSORS OR ASSIGNS ANY LEGAL OR
EQUITABLE RIGHT, REMEDY OR CLAIM UNDER OR IN
8
RESPECT OF ANY AGREEMENT OR ANY PROVISION CONTAINED HEREIN.
NEITHER THIS
AGREEMENT NOR ANY RIGHT, REMEDY, OBLIGATION OR LIABILITY ARISING HEREUNDER OR BY
REASON HEREOF SHALL BE ASSIGNABLE BY THE COMPANY OR THE PURCHASER WITHOUT THE
PRIOR WRITTEN CONSENT OF THE OTHER PARTY.
(B)
AMENDMENT.
THIS AGREEMENT MAY BE AMENDED, MODIFIED OR
SUPPLEMENTED ONLY BY A WRITTEN INSTRUMENT EXECUTED BY THE PURCHASER AND THE
COMPANY.
THE PARTIES HERETO ACKNOWLEDGE THAT THE COMPANY'S CONSENT TO AN
AMENDMENT OR MODIFICATION OF THIS AGREEMENT IS SUBJECT TO THE TERMS AND
PROVISIONS