MORATORIUM OR OTHER SIMILAR LAWS
AFFECTING CREDITORS' RIGHTS GENERALLY AND (B) APPLICABLE EQUITABLE PRINCIPLES
(WHETHER CONSIDERED IN A PROCEEDING AT LAW OR IN EQUITY).
(B)
OWNERSHIP OF THE EXECUTIVE SECURITIES.
ALL OF THE EXECUTIVE
SECURITIES ARE OWNED OF RECORD AND BENEFICIALLY BY EXECUTIVE, AND EXECUTIVE HAS
GOOD AND MARKETABLE TITLE TO
5
SUCH EXECUTIVE SECURITIES, FREE AND CLEAR OF ANY SECURITY INTERESTS, CLAIMS,
LIENS, OPTIONS, PLEDGES, CHARGES, ENCUMBRANCES, VOTING TRUSTS, PROXIES OR OTHER
RESTRICTIONS OF ANY KIND WHATSOEVER ("ENCUMBRANCES").
EXECUTIVE SHALL TRANSFER
TO HOLDINGS GOOD AND MARKETABLE TITLE TO THE REPURCHASED EXECUTIVE SECURITIES.
(C)
EXECUTIVE'S UNDERSTANDING; INSTRUCTION TO CONSULT COUNSEL.
EXECUTIVE ACKNOWLEDGES THAT HE UNDERSTANDS THE CONTENTS OF THIS AGREEMENT, THAT
HE IS COMPETENT TO ENTER INTO THIS AGREEMENT AND THAT HE HAD BEEN ADVISED TO
CONSULT, AND HAS CONSULTED, WITH AN ATTORNEY CONCERNING THIS AGREEMENT, AND THAT
HIS SIGNATURE HAS NOT BEEN OBTAINED BY DURESS.
(D)
RETURN OF CONFIDENTIAL INFORMATION, ETC.
IN ACCORDANCE WITH
SECTION 8 OF THE EMPLOYMENT AGREEMENT, EXECUTIVE SHALL DELIVER ON OR PRIOR TO
THE TERMINATION DATE TO THE COMPANY ALL MEMORANDA, NOTES, PLANS, RECORDS,
REPORTS, COMPUTER TAPES, PRINTOUTS AND SOFTWARE AND OTHER DOCUMENTS (AND COPIES
THEREOF) RELATING TO CONFIDENTIAL INFORMATION, WORK PRODUCT (AS SUCH TERMS ARE
DEFINED IN THE EMPLOYMENT AGREEMENT) OR THE BUSINESS OF HOLDINGS, THE COMPANY OR
ANY SUBSIDIARY WHICH HE POSSESSES OR HAS UNDER HIS CONTROL; PROVIDED HOWEVER
THAT, EXECUTIVE SHALL RETAIN COPIES OF LEGAL FILES NECESSARY FOR EXECUTIVE'S
REPRESENTATION OF THE COMPANY.
5.
REPRESENTATION AND WARRANTY OF THE COMPANY AND HOLDINGS.
EACH OF
THE COMPANY AND HOLDINGS REPRESENTS AND WARRANTS TO EXECUTIVE THAT THE COMPANY
AND HOLDINGS HAVE THE POWER AND AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT,
TO PERFORM FULLY THEIR OBLIGATIONS HEREUNDER AND TO CONSUMMATE THE ACTIONS
CONTEMPLATED HEREBY. EACH OF THE COMPANY AND HOLDINGS HAS DULY EXECUTED AND
DELIVERED THIS AGREEMENT AND THIS AGREEMENT IS A LEGAL, VALID AND BINDING
OBLIGATION OF THE COMPANY AND HOLDINGS ENFORCEABLE AGAINST THE COMPANY AND
HOLDINGS IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY BE
LIMITED BY (A) APPLICABLE INSOLVENCY, BANKRUPTCY, REORGANIZATION, MORATORIUM OR
OTHER SIMILAR LAWS AFFECTING CREDITORS' RIGHTS GENERALLY AND (B) APPLICABLE
EQUITABLE PRINCIPLES (WHETHER CONSIDERED IN A PROCEEDING AT LAW OR IN EQUITY).
MISCELLANEOUS
6.
NONDISPARAGEMENT.
EACH PARTY AGREES THAT IT WILL NOT MAKE
NEGATIVE OR DISPARAGING COMMENTS REGARDING EACH OTHER, EXCEPT AS MAY BE REQUIRED
UNDER LAW.
7.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
ALL REPRESENTATIONS
AND WARRANTIES CONTAINED HEREIN SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS
AGREEMENT AND THE TRANSFER OF THE REPURCHASED EXECUTIVE SECURITIES HEREUNDER.
8.
GOVERNING LAW.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE
STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
9.
FURTHER ASSURANCES; ASSISTANCE AND COOPERATION.
AFTER THE
EXECUTION HEREOF, AS AND WHEN REQUESTED