**Exhibit 10.1**

** **

**EMPLOYMENTAGREEMENT**

 

THISAGREEMENT is made as of the 1st day of April, 2002, between NetBank, Inc. (the“Company”), a Georgia corporation, and **ThomasLee Cable**  (the “Executive”),a resident of the State of **Georgia**,to be effective as of the date described in Section 1.10 hereof.

 

RECITALS:

 

TheCompany desires to employ the Executive and the Executive desires to acceptsuch employment.

 

In consideration of theabove premises and the mutual agreements hereinafter set forth, the partieshereby agree as follows:

 

**1.**     **Definitions.**Whenever used in this Agreement, the following terms and theirvariant forms shall have the meaning set forth below:

 

1.1           “Agreement” shall mean this Agreement and anyAnnexes and Exhibits incorporated herein together with any amendments heretomade in the manner described in this Agreement.

 

1.2           “Affiliate” shall mean any business entity thatcontrols, is controlled by, or is under common control with, the Company.

 

1.3           “Average MonthlyCompensation” shall mean the quotient determined by dividing (A) the sum of(i) the Executive’s Base Salary and (ii) Executive’s maximum IncentiveCompensation (as defined in Section 4.2(a)) for the year of termination by (B)twelve (12).

 

1.4           “Base Salary” shall have themeaning set forth in Annex A.  

 

1.5           “Business of the Company” shall mean the businessconducted by the Company and its Affiliates, which is currently banking,residential mortgage lending, commercial lending and leasing and provision ofother financial services.

 

1.6           “Cause” shall mean:

 

1.6.1       With respect to****termination by the Company,

 

(a) a material breach of the terms of thisAgreement by the Executive (including, without limitation, failure by theExecutive to perform his duties and responsibilities in the manner and to theextent required under this Agreement, or a breach of any representation orwarranty of the Executive set forth herein); which breach remains uncured afterthe expiration of thirty (30) days following the delivery of written notice ofsuch breach to the Executive by the Company; or

 

(b)conduct by the Executive that amounts to personal dishonesty, willfulmisconduct, breach of fiduciary duty involving personal profit, intentionalfailure

 

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to perform stated duties,willful violation of any law, rule or regulation (other than traffic violationsor similar offenses), or willful violation of any final cease and desist orderapplicable to the Executive.

 

1.6.2       With respect to termination by theExecutive,

 

(a)  a material breach of the terms of thisAgreement by the Company that remains uncured after the expiration of thirty(30) days following the delivery of written notice of such breach to theCompany by the Executive; or

 

(b)  any requirement by the Company that theExecutive’s services be rendered primarily at a location or locations otherthan the Business Location set forth in Annex A.

 

1.7           “Change in Control” has the meaning set forth inAnnex B attached hereto.

 

1.8           “Permanent Disability” shallmean the total inability of the Executive to perform his duties under thisAgreement for a period of ninety (90) consecutive days as certified by aphysician chosen by the Company and reasonably acceptable to the Executive;provided, however, if the Executive is****coveredby a disability insurance policy, the term “Permanent Disability” shall havethe meaning set forth in such policy.

 

1.9           “ProprietaryInformation” shall mean:

 

(a) Information related to the Company or anyAffiliate,

 

(i)which derives economic value, actual or potential, from not being generallyknown to or readily ascertainable by other persons who can obtain economicvalue from its disclosure or use; and

 

(ii)which is the subject of efforts that are reasonable under the circumstances to****maintain its secrecy;and              -

 

(b)All tangible reproductions or embodiments of such information.

 

Assumingthe criteria in (a)(i) and (a)(ii) above are satisfied, Proprietary Informationincludes, but is not limited to, technical and non-technical data related tothe compilations, programs, methods, techniques, finances, actual or potentialcustomers and suppliers, existing and future products, and employees of theCompany or its Affiliates.  ProprietaryInformation also includes information which has been disclosed to the Companyor its Affiliates by a third party and which the Company or any Affiliate isobligated to treat as confidential.

 

1.10         “Term” means the period commencing on the datehereof and ending on the first anniversary of such date.

 

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**2.  Duties.**

 

2.1           The Executive is employed in theposition set forth in Annex A and, subject to the direction of the Company,shall perform and discharge well and faithfully the duties which may beassigned to him from time to time by the Company in connection with the conductof its business.  The Executive may beassigned duties that may be primarily concentrated in one or more direct orindirect subsidiaries of the Company.

 

2.2           In addition to the duties andresponsibilities specifically assigned to the Executive pursuant to Section 2.1hereof, the Executive shall: (a) devote substantially all of his time, energyand skill during regular business hours to the performance of the duties of hisemployment (reasonable vacations and reasonable absences due to illnessexcepted), and faithfully and industriously perform such duties; (b) diligentlyfollow and implement all management policies and decisions communicated to himby the Company; and (c) timely prepare all reports and accounting as may berequested of the Executive.

 

2.3           The Executive shall devotesubstantially his entire business time, attention and energies to the Businessof the Company and shall not during the term of this Agreement be engaged(whether or not during normal business hours) in any other business orprofessional activity which is competitive in nature; or interferes with hisability to perform his duties fully; or which promotes an activity inconsistentwith the nature or status of the Company, whether or not such activity ispursued for gain, profit or other pecuniary advantage; but this shall not beconstrued as preventing the Executive from (a) investing his personal assets inbusinesses which (subject to item (b) below) are not in competition with theBusiness of the Company and which will not require any services on the part ofthe Executive in their operation or affairs and in which his participation issolely that of an investor, (b) purchasing securities in any corporation whosesecurities are regularly traded provided that such purchase shall not result inhis collectively owning beneficially at any time five percent (5%) or more ofthe equity securities of any business in competition with the Business of theCompany, and (c) participating in civic and professional affairs andorganizations and conferences, preparing or publishing papers or books orteaching so long as such activity does not materially interfere with theperformance of his duties hereunder.

 

**3.  Term and Termination.**

 

3.1           Term. This Agreement shallremain in effect for the Term.  However,notwithstanding the provisions of Section 1.10, this Agreement shall terminateupon the death or Permanent Disability of Executive.

 

3.2           Termination. During the Term, the employment of the Executive under this Agreementmay****be terminated only as follows:

 

3.2.1  By the Company:

 

(a)  For Cause, with no prior notice except asprovided in Section 1.6.1; or

 

(b) Without Cause at any time, provided that the Company shall give theExecutive thirty (30) days prior written notice of its intent to terminate.

 

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3.2.2  By the Executive:

 

(a)  For Cause, with no prior notice except asprovided in Section 1.6.2; or

 

(b) Without Cause, provided that the Executive shall give the Companythirty (30) days prior written notice of his intent to terminate.

 

3.2.3  By the Executive following a Change inControl of the Company, provided that the Executive shall give written noticeto the Company of his****intention toterminate this Agreement and terminates employment prior to the expiration ofthe Term.

 

3.2.4  At any time upon mutual, written agreementof the parties.

 

3.3           Effect of Termination.  The effect of termination of the employmentof the****Executive pursuant toSection 3.2 shall be as set forth in this Section 3.3.

 

3.3.1  In the event of termination by the Company:

 

(a)  For Cause, pursuant to Section 3.2.1(a), theCompany shall have no further obligation to the Executive, except for the paymentof any amounts due and owing under Section 4 on the effective date oftermination.

 

(b) Without Cause, pursuant to Section 3.2.1(b), the Company shall berequired to meet its obligations to the Executive under Section 3.4 below.

 

3.3.2  In the event of termination by theExecutive:

 

(a)  For Cause, pursuant toSection 3.2.2(a), the Company shall be required to meet its obligations to theExecutive under Section 3.4 below.

 

(b)Without Cause, pursuant to****Section3.2.2(b), the Company shall have****nofurther obligation to the Executive, except for the payment ofany amounts due and owing under Section 4 on the effective date of termination.

 

3.3.3  In the event of termination by the Executivein connection with a Change in Control pursuant to Section 3.2.3, the Companyshall be required to meet its obligations to the Executive under Section 3.4below.

 

3.3.4  In the event of termination upon mutualagreement of the parties pursuant to Section 3.2.4, the Company shall have nofurther obligation to the Executive except for the payment of any amounts dueand owing under Section 4.1 on the effective date of termination unlessotherwise set forth in the written agreement.

 

3.3.5  Notwithstanding anything in this Section 3.3to the contrary, following any termination of the Executive’s employment, theExecutive shall be entitled to receive

 

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benefits pursuant to theemployee benefit plans in which the Executive participated during hisemployment with the Company in accordance with the terms of such plans.

 

3.4           Termination Payments. In theevent Executive’s employment is terminated under this Agreement prior to theexpiration of the Term pursuant to Section 3.3.1(b), Section 3.3.2(a), orSection 3.3.3, the Company shall pay to the Executive as severance pay andliquidated damages a lump sum amount equal to the product of the (a) AverageMonthly Compensation multiplied by (b) twelve (12), which amount shall in lieuof any other severance benefits that the Executive might otherwise have beenentitled to under any other plan, practice, arrangement or agreement of theCompany.  In addition, for a period oftwelve months following the effective date of the termination (the “SeverancePeriod”), the Company shall continue to provide to the Executive, to the extentpracticable, the benefits described in Section 4.3; provided, however, that inlieu of providing health benefits, the Company shall pay the Executive anamount equal to the difference between (x) the cost of COBRA healthcontinuation coverage that would be charged by the Company to a former employeeand eligible dependents for the greater of the Severance Period or the periodduring which the Executive and his eligible dependents are entitled to COBRAhealth continuation coverage from the Company and (y) the amount for which theExecutive would have been responsible to pay under the health benefit plans ineffect for the Executive immediately prior to his termination.  To the extent the Company determines thatthe continuation of any other benefits by the Company is not practicable, theCompany may pay the Executive an amount equal to what would have been theCompany’s cost of providing the coverage for such benefits during the SeverancePeriod to the Executive and his eligible dependents as if the coverage hadcontinued.  Notwithstanding the aboveprovisions of this Section 3.4, the Company may elect to retain the Executiveon the payroll of the Company or an Affiliate (with existing benefitscontinuing through standard payroll deduction) for all or any part of theSeverance Period in lieu of the payment of a lump sum; provided that suchelection by the Company shall not reduce the total amount due to Executive bythe Company pursuant to this Section 3.4.

 

In the event that by thefirst business day following the first anniversary of the date of thisAgreement (the “Optional Date”) either the Term is not extended or thisAgreement is not replaced, the Executive shall have the right, but only on suchOptional Date, to terminate his or her employment with the Company by writtennotice to the Company’s Chief Human Resources Executive.  If the Executive so terminates in accordancewith this paragraph, the Company shall pay to the Executive as severance pay anamount equal to the product of the (a) Average Monthly Compensation multipliedby (b) six (6), which amount shall be in lieu of any other severancebenefits that the Executive might otherwise have been entitled to under anyother plan, practice, arrangement or agreement of the Company.

 

Notwithstanding any otherprovision of this Agreement to the contrary, if the aggregate of the paymentsprovided for in this Agreement and the other payments and benefits which theExecutive has the right to receive from the Company (the “Total Payments”)would constitute a  “parachutepayment,” as defined in Section 28OG(b)(2) of the Internal Revenue Code, asamended (the “Code”), the Executive shall receive the Total Payments unless the(a) after-tax amount that would be retained by the Executive (after taking intoaccount all federal, state and local income taxes payable by the Executive andthe amount of any excise taxes payable by the Executive pursuant to Section4999 of the Code (the “Excise Taxes”)) if the Executive were to receive theTotal Payments has a lesser aggregate value than (b) the after-tax amount that

 

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would be retained by theExecutive (after taking into account all federal, state and local income taxesand Excise Taxes payable by the Executive) if the Executive were to receive themaximum amount of the Total Payments that the Executive could receive withoutbeing subject to the Excise Tax (the “Reduced Payments”), in which case theExecutive shall be entitled only to the Reduced Payments. If the Executive isto receive the Reduced Payments, the Executive shall be entitled to determinewhich of the Total Payments, and the relative portions of each, are to bereduced.

 

**4.  Compensation.** The Executive shall receive the followingsalary and benefits:

 

4.1           Base Salary. During the Term,the Executive shall be compensated at an annual rate equal to the Base Salary set forth inAnnex A. The Base Salary and performance shall be reviewed by the ChiefExecutive Officer annually, and the Executive shall be entitled to receiveannually an increase in such amount, if any, as may be determined by the ChiefExecutive Officer. Such salary shall be payable in accordance with theCompany’s normal payroll practices.

 

4.2           Incentive Compensation.

 

(a)           The Executive shall be eligible foran annual incentive bonus determined in accordance with the provisions of AnnexA attached hereto (the “Incentive Compensation”).

 

(b)           The Executive shall be entitled toparticipate in such stock option programs as are made available to seniormanagement of the Company from time to time. Any options granted will comply inall respects with the terms of the NetBank, Inc. Stock Option Plan.

 

4.3           Benefits.

 

(a)           In addition to the Base Salary andIncentive Compensation, the Executive shall be entitled to such other benefitsas may be available from time to time for employees of the Company.  All such benefits shall be awarded andadministered in accordance with the Company’s standard policies and practices.Such benefits may include, by way of example only, profit sharing plans,retirement or investment funds, dental, health, life and disability insurancebenefits, and such other benefits as the Company deems appropriate.

 

(b)          The Company specifically agreesto reimburse the Executive for reasonable business expenses incurred by him inperformance of his duties hereunder, as approved from time to time inaccordance with the Company’s policy; provided that the Executive shall, as acondition of reimbursement, submit verification of the nature and amount ofsuch expenses in accordance with reimbursement policies from time to timeadopted by the Company and in sufficient detail to comply with Internal RevenueService regulations.

 

(c)           On a non-cumulative basis theExecutive shall be entitled to four weeks of vacation each year, during whichhis compensation shall be paid in full, and which

 

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shall be taken as approvedin advance by the Company, taking into account the requirements of the Company.

 

4.4           Withholding. The Company maydeduct from each payment of compensation hereunder all amounts required to bededucted and withheld in accordance with applicable federal and state income,FICA and other withholding requirements.

 

**5.  Proprietary Information.**

 

5.1           Treatment of ProprietaryInformation.  As a managementofficial of the Company, the Executive has access to Proprietary Information.The Executive agrees to maintain the confidentiality of all ProprietaryInformation throughout the Term and after the termination of this Agreement.

 

5.2           Obligations of Executive.  During the period described in Section 5.1,the Executive will hold the Proprietary Information in trust and strictestconfidence, and will not use, reproduce, distribute, disclose or otherwisedisseminate the Proprietary Information except to the extent necessary toperform the duties assigned to him by the Company.

 

5.3           Delivery upon Termination.Upon termination of his employment with the Company, the Executive willpromptly deliver to the Company all property belonging to the Company,including, without limitation, all Proprietary Information then in hispossession or control.

 

**6. Non-Solicitation. **The Executiveagrees that during his employment by the Company and, in the event of histermination, other than pursuant to Sections 3.2.1(b) or 3.2.2(a), for a periodof twelve (12) months thereafter, he will not (except on behalf of or with theprior written consent of the Company) on his own behalf or in the service or onbehalf of others, do any of the following:

 

6.1          Customers.  Solicit, divert or appropriate, or****attempt to solicit, divert or appropriate,directly or by assisting others, any business from any of the Company’scustomers, including actively-sought prospective customers, with whom theExecutive has or had material contact during the last two (2) years of hisemployment, for purposes of providing products or services that are competitivewith those provided by the Company or its Affiliates.

 

6.2           Vendors. Solicit, divert or appropriate, or****attemptto solicit, divert or appropriate, directly or by assisting others, anyproducts any productsor services being provided to the Company from any of its vendors with whom theExecutive has or had material contact during the last two (2) years of hisemployment to the extent such solicitation, diversion or appropriation wouldinterfere with any such vendor’s ability to continue to provide the products orservices to the Company or its Affiliates in the same manner and to the sameextent as those provided to the Company or its Affiliates immediately prior tothe Executive’s actions.

 

6.2           Employees. Solicit, recruitor hire away, or attempt to solicit, recruit or hire away, directly or byassisting others, any employee of the Company or its Affiliates, whether or

 

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not such employeeis a full-time employee or a temporary employee of the Company or itsAffiliates, and whether or not such employment is pursuant to written agreementand whether or not such employment is for a determined period or is at will.

 

**7. Non-Competition.**  TheExecutive agrees that during his employment by the Company and, in the event ofhis termination, other than pursuant to Sections 3.2.1(b) or 3.2.2(a), for aperiod of twelve (12) months thereafter, he will not (except on behalf of or with the priorwritten consent of the Company), within the Non-Competition Area (as defined inAnnex A), either directly or indirectly, on his own behalf or in the service oron behalf of others, in any capacity which involves duties and responsibilitiessimilar to those undertaken for the Company, engage in any business which isthe same as or essentially the same as the Business of the Company.

 

**8.  Remedies.  **The Executive agrees thatthe covenants contained in Sections 5 through 7 of this Agreement are of theessence of this Agreement; that each of the covenants is reasonable andnecessary to protect the business, interests and properties of the Company; andthat irreparable loss and damage will be suffered by the Company should hebreach any of the covenants. Therefore, the Executive agrees and consents that,in addition to all the remedies provided by law or in equity, the Company shallbe entitled to a temporary restraining order and temporary and permanentinjunctions to prevent a breach or contemplated breach of any of the covenants.The Company and the Executive agree that all remedies available to the Companyor the Executive, as applicable, shall be cumulative.

 

**9.  Severability. **The parties agree that eachof the provisions included in this Agreement is separate, distinct, andseverable from the other provisions of this Agreement, and that the invalidityor unenforceability of any Agreement provision shall not affect the validity orenforceability of any other provision of this Agreement. Further, if anyprovision of this Agreement is ruled invalid or unenforceable by a court ofcompetent jurisdiction because of a conflict between the provision and any applicablelaw or public policy, the provision shall be redrawn to make the provisionconsistent with and valid and enforceable under the law or public policy.

 

**10.  Notice. **All notices and othercommunications required or permitted under this Agreement shall be in writingand, if mailed by prepaid first-class mail****orcertified mail, return receipt requested, shall be deemed to have been receivedon the earlier of the date shown on the receipt or three (3) business daysafter the postmarked date thereof.  Inaddition, notices hereunder may be delivered by hand, facsimile transmission orovernight courier, in which event the notice shall be deemed effective whendelivered or transmitted.  All noticesand other communications under this Agreement shall be given to the partieshereto at the following addresses:

 

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|   | (i)                                         |   |
|--------|---------------------------------------------|--------|
|   | If to the Company, to it  at:               |   |
|   | NetBank, Inc.                               |   |
|   | Royal Centre Three                          |   |
|   | Suite 100                                   |   |
|   | Alpharetta, Georgia 30022                   |   |
|   | Attn:  Chief Human Resources Executive |   |
|   |                                        |   |
|   | (ii)                                        |   |
|   | If to the Executive, to****him or her at:   |
|   |                                        |   |
|   | Thomas L. Cable                             |   |
|   | [home address]                              |   |
|   |                                        |   |
|        |                                             |        |  |

 

**11.  Assignment. **Neither party hereto may assign or delegate this Agreement or any ofits rights and obligations hereunder without the written consent of the otherparty hereto.

 

**12.  Waiver. **A waiver by the Company ofany breach of this Agreement by the Executive shall not be effective unless inwriting, and no waiver shall operate or be construed as a waiver of the same oranother breach on a subsequent occasion.

 

**13.  Attorneys’ Fees.**   In the event of litigation between theparties concerning this Agreement, the party prevailing in such litigationshall be entitled to receive from the other party all reasonable costs andexpenses, including without limitation attorneys’ fees, incurred by theprevailing party in connection with such litigation, and the other party shallpay such costs and expenses to the prevailing party promptly upon demand by theprevailing party.

 

**14.  Applicable Law.**  This Agreement shall be construed andenforced under and in accordance with Federal law, where applicable, and thenwith the laws of the State of Georgia.

 

**15.  Entire Agreement; No AdditionalBenefit. **This Agreementembodies the entire and final****agreementof the parties on the subject matter stated in the Agreement.  No amendment or modification of thisAgreement shall be valid or binding upon the Company or the Executive unlessmade in writing and signed by both parties. All prior understandings andagreements relating to the subject matter of this Agreement are herebyexpressly terminated.   The Executiveand the Company acknowledge that, as of the date on which the Term commences,this Agreement supersedes any employment agreement, Non-Disclosure, Non-Solicitationand Non-Competition Agreement for Employees between the Executive and theCompany and/or any Affiliate thereof and any other agreement between themconcerning the subject matter hereof, including any change in control agreementbetween the Executive and the Company and/or any Affiliate.  The Executive and the Company alsoacknowledge that even though the Executive may be paid from the payroll of adirect or indirect subsidiary of the Company, the Executive is entitled to noadditional employment benefits than those from the Company as set forth herein.

 

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**16.  Rights of ThirdParties. **Nothing hereinexpressed is intended to or shall be construed to confer upon or give to anyperson, firm or other entity, other than the parties hereto and their permittedassigns, any rights or remedies under or by reason of this Agreement.

 

**17.  Survival.**The obligations of theExecutive pursuant to Sections 5, 6 and 7 shall survive the termination of theemployment of the Executive hereunder.

 

**IN WITNESS WHEREOF,**the Company and theExecutive have executed and delivered this Agreement as of the date first****shown above.

 
|   |   | THE COMPANY:                                     |
|--------|--------|--------------------------------------------------|
|   |   |                                             |
|   |   | NETBANK, INC.                                    |
|   |   |                                             |
|   |   | By:                                              | /s/ Douglas K. Freeman |
|   |   | Name:  Douglas K. Freeman                   |   |
|   |   | Title:    Chief Executive Officer |   |
|   |   |                                             |
|   |   |                                             |
|   |   | THE EXECUTIVE:                                   |   |
|   |   | /s/ Thomas Lee Cable                             |   |
|   |   | Thomas Lee Cable                                 |   |
|        |        |                                                  |  |  |  |

 

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# Annex A

 
| Position:               |   | Chief Technology Officer                                                                                                                                                            |
|-------------------------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                    |   |                                                                                                                                                                                |
| Base Salary:            |   | $133,899.92                                                                                                                                                                         |
|                    |   |                                                                                                                                                                                |
| Incentive Compensation: |   | Potential of 20% of Base  Salary                                                                                                                                                    |
|                    |   |                                                                                                                                                                                |
| Business Location:      |   | Other than for periods  spent traveling in connection with the performance of the Executive’s duties  hereunder, the Executive shall be based in the Alpharetta, Georgia area. |
|                    |   |                                                                                                                                                                                |
| Non-Competition Area:   |   | The counties of Fulton,  DeKalb, Cobb, Gwinett, Cherokee, Henry, Clayton, Douglass, Fayette, Coweta,  Rockdale, Newton, Barrow and Forsyth                                          |

 

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AnnexB

 

“Change in Control” means any one of thefollowing events:

 

(1)           the acquisition by any individual, entity or “group”,within the meaning of Section 13(d) (3) or Section 14(d) (2) of the SecuritiesExchange Act of 1934, as amended, (a “Person”) of beneficial ownership (withinthe meaning of Rule 13d-3 promulgated under the Securities Exchange Act of1934) of voting securities of the Company where such acquisition causes anysuch Person to own twenty-five percent (25%) or more of the combined votingpower of the then outstanding voting securities then entitled to vote generallyin the election of directors (the “Outstanding Voting Securities”); provided,however, that for purposes of this paragraph (1) of this definition, thefollowing shall not be deemed to result in a Change in Control, (i) any acquisitiondirectly from the Company, unless such a Person subsequently acquiresadditional shares of Outstanding Voting Securities other than from the Company,in which case any such subsequent acquisition shall be deemed to be a Change inControl; (ii) any acquisition by any employee benefit plan (or related trust)sponsored or maintained by the Company or any corporation controlled by theCompany; or (iii) any acquisition by merger, consolidation, share exchange,combination, reorganization, sale or transfer or like transaction that is NOTotherwise described in paragraph (2) or (4) below as long as no Person (otherthan an employee benefit plan or related trust sponsored or maintained by theCompany, any corporation controlled by the Company or any company resultingfrom such business combination) obtains beneficial ownership of twenty-fivepercent (25%) or more of the then Outstanding Voting Securities;

 

(2)           a merger, consolidation, share exchange, combination,reorganization or like transaction involving the Company in which thestockholders of the Company immediately prior to such transaction do not own atleast fifty percent (50%) of the value or voting power of the issued andoutstanding capital stock of the Company or its successor immediately after suchtransaction;

 

(3)           the sale or transfer (other than as security for theCompany’s obligations) of more than fifty percent (50%) of the assets of theCompany in any one transaction, a series of related transactions or a series oftransactions occurring within a one (1) year period in which the Company, anycorporation controlled by the Company or the stockholders of the Companyimmediately prior to the transaction do not own at least fifty percent (50%) ofthe value or voting power of the issued and outstanding equity securities ofthe acquiror immediately after the transaction;

 

(4)           the sale or transfer of more than fifty percent (50%) ofthe value or voting power of the issued and outstanding capital stock of theCompany by the holders thereof in any one transaction, a series of relatedtransactions or a series of transactions occurring within a one (1) year periodin which the Company, any corporation controlled by the Company or thestockholders of the Company immediately prior to the transaction do not own atleast fifty percent (50%) of the value or voting power of the issued andoutstanding equity securities of the acquiror immediately after thetransaction; or

 

(5)           the dissolution or liquidation of theCompany.

 

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