Modifications to Section 4. If, at the time of enforcement of Section 4 of this Agreement, a court shall hold that the period, scope, or geographical area restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum period, scope, or geographical area reasonable under such circumstances shall be substituted for the stated period, scope, or geographical area and that the court shall revise the restrictions contained herein to cover the maximum period, scope, and geographical area permitted by law. If, in any proceeding, a court refuses to enforce all of the separate covenants deemed included herein because, taken together, they are deemed more extensive than necessary to assure Employer of the intended benefit of this Agreement, it is expressly understood and agreed that those of such covenants or portions of such covenants that, if eliminated, would permit the remaining separate covenants or portions thereof to be enforced in such proceeding shall, for the purpose of such proceeding, be deemed eliminated from the provisions hereof. Employee acknowledges that Employee is a member of Employer’s management group with access to Employer’s confidential business information and Employee’s services are unique to Employer and the Related Entities. Employee therefore agrees that the remedy at law for any breach by Employee of any of the covenants and agreements set forth in this Section 4 will be inadequate and that in the event of any such breach, Employer may, in addition to the other remedies that may be available to it at law, apply to any court of competent jurisdiction to obtain specific performance and/or injunctive relief prohibiting Employee (together with all those persons associated with Employee) from the breach of such covenants and agreements and to enforce, or prevent any violations of, the provisions of this Agreement. In addition, in the event of an alleged breach or violation by Employee of this Section 4, the applicable Non-Compete Period and Non-Solicitation Period set forth in this Section shall be tolled until such breach or violation has been cured.
Modifications to Section 4. 3.
a. In 2001, Tenant achieved a capitalized value in excess of $[***] which, pursuant to Section 4.3, reduced the required Security Deposit and Pledge Account to $[***] (a “Capitalized Value Reduction”). Subsequent reductions in Tenant’s capitalized value would, under the terms of the Lease, require reversal of the Capitalized Value Reduction. Landlord confirms, however, that it has waived the requirement of such reversal for the period up to the date hereof. Landlord’s waiver has relied, among other factors, on Tenant’s representation and warranty that it was not aware of any defaults by either Landlord or Tenant under the Lease or Pledge Documents nor any event or condition that if left uncured would constitute a default with the passage of time, which representation and warranty Tenant hereby confirms as of the date of this First Amendment.
b. From and after the date hereof, the following provisions shall govern the required amount of the Security Deposit and Pledge Account: The Security Deposit and Pledge Account may remain at $[***], provided that if the capitalized value of Tenant reduces below $[***], or if the cash and cash equivalents, including short and long term investments in marketable securities, restricted investments, and interest receivables associated with investments in marketable securities, held by Tenant free and clear of all liens and pledges except the Pledge Account falls below $[***], or if Tenant’s total stockholder equity established pursuant to GAAP falls below $[***], then the Capitalized Value Reduction shall be reversed and the amount of the Security Deposit and Pledge Account shall be restored to the full amount required but for the Capitalized Value Reduction. Thereafter, the Capitalized Value Reduction shall be reinstituted if Tenant’s capitalized value reaches a value of $[***], and shall be reversed again if the capitalized value thereafter reduces below $[***] or if Tenant’s unpledged cash and equivalents (plus amounts held in the Pledge Account) fall below $[***], or if Tenant’s total stockholder equity falls below $[***], and so on from that point with capitalized value trigger points of $[***] and $[***] respectively, a cash and equivalents trigger point of $[***], and a total stockholder equity trigger point of $[***]. However, in no event shall the Security Deposit and Pledge Account in any circumstances fall below $[***] as provided for under Section 4.3 of the lease.
