AGAINST ANY OTHER OBLIGATIONS
OF THE EMPLOYEE TO THE COMPANY OR ANY OF ITS SUBSIDIARIES.
(F)
CERTAIN RESTRICTIONS ON
REPURCHASES; DELAY OF REPURCHASE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, THE COMPANY SHALL NOT BE PERMITTED OR OBLIGATED TO MAKE ANY PAYMENT
WITH RESPECT TO A REPURCHASE OF ANY SHARES FROM THE EMPLOYEE IF (I) SUCH
REPURCHASE (OR THE PAYMENT OF A DIVIDEND BY A SUBSIDIARY TO THE COMPANY TO FUND
SUCH REPURCHASE) WOULD RESULT IN A VIOLATION OF THE TERMS OR PROVISIONS OF, OR
RESULT IN A DEFAULT OR AN EVENT OF DEFAULT UNDER ANY GUARANTY, FINANCING OR
SECURITY AGREEMENT OR DOCUMENT ENTERED INTO BY THE COMPANY OR ANY SUBSIDIARY
FROM TIME TO TIME (THE "FINANCING AGREEMENTS"), (II) SUCH REPURCHASE WOULD
VIOLATE ANY OF THE TERMS OR PROVISIONS OF THE CERTIFICATE OF INCORPORATION AND
BY-LAWS OF THE COMPANY OR (III) THE COMPANY HAS NO FUNDS LEGALLY AVAILABLE TO
MAKE SUCH PAYMENT UNDER THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE. IF
PAYMENT WITH RESPECT TO A REPURCHASE BY THE COMPANY OTHERWISE PERMITTED OR
REQUIRED UNDER THIS SECTION 5 IS PREVENTED BY THE TERMS OF THE PRECEDING
SENTENCE: (I) THE PAYMENT OF THE APPLICABLE PURCHASE PRICE SHALL BE POSTPONED
AND WILL TAKE PLACE AT THE FIRST OPPORTUNITY THEREAFTER WHEN THE COMPANY HAS
FUNDS LEGALLY AVAILABLE TO MAKE SUCH PAYMENT AND WHEN SUCH PAYMENT 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 OR BY-LAWS, (II) SUCH REPURCHASE OBLIGATION SHALL RANK AGAINST
6
OTHER SIMILAR REPURCHASE OBLIGATIONS WITH RESPECT TO COMMON SHARES ACCORDING TO
PRIORITY IN TIME OF THE EFFECTIVE DATE OF THE TERMINATION OF EMPLOYMENT GIVING
RISE TO SUCH REPURCHASE (PROVIDED THAT ANY REPURCHASE COMMITMENT ARISING FROM
DISABILITY OR DEATH SHALL HAVE PRIORITY OVER ANY OTHER REPURCHASE OBLIGATION)
AND (III) THE PURCHASE PRICE, EXCEPT IN THE CASE OF A TERMINATION FOR CAUSE,
SHALL BE INCREASED BY AN AMOUNT EQUAL TO INTEREST ON SUCH PURCHASE PRICE FOR THE
PERIOD DURING WHICH PAYMENT IS DELAYED AT AN ANNUAL RATE EQUAL TO THE WEIGHTED
AVERAGE COST OF THE COMPANY'S BANK INDEBTEDNESS OUTSTANDING DURING THE DELAY
PERIOD.
(G)
RIGHT TO RETAIN SHARES. IF THE
OPTIONS OF THE COMPANY AND THE INITIAL INVESTORS TO PURCHASE THE SHARES PURSUANT
TO THIS SECTION 5 ARE NOT EXERCISED WITH RESPECT TO ALL OF THE SHARES, THE
EMPLOYEE SHALL BE ENTITLED TO RETAIN THE REMAINING SHARES, ALTHOUGH THOSE SHARES
SHALL REMAIN SUBJECT TO ALL OF THE OTHER PROVISIONS OF THIS AGREEMENT.
(H)
NOTICE OF TERMINATION; ETC.
PRIOR TO A PUBLIC OFFERING, THE COMPANY SHALL GIVE PROMPT WRITTEN NOTICE TO THE
INITIAL INVESTORS OF ANY TERMINATION OF THE EMPLOYEE'S EMPLOYMENT WITH THE
COMPANY AND OF THE COMPANY DECISION WHETHER OR NOT TO PURCHASE SHARES PURSUANT
TO SECTION 5(A).
(I)
PUBLIC OFFERING. THE
PROVISIONS OF THIS SECTION 5 SHALL TERMINATE UPON A PUBLIC OFFERING, PROVIDED
THAT SUCH TERMINATION SHALL NOT AFFECT THE COMPANY'S REPURCHASE RIGHT FOLLOWING
A