ANY OF ITS
SUBSIDIARIES (THE "CURE PERIOD");
(II)
THE WILLFUL OR INTENTIONAL ENGAGING BY
EXECUTIVE IN CONDUCT THAT CAUSES MATERIAL AND DEMONSTRABLE INJURY, MONETARILY OR
OTHERWISE, TO THE COMPANY, THE INVESTORS OR THEIR RESPECTIVE AFFILIATES;
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(III)
THE COMMISSION BY EXECUTIVE OF A CRIME
CONSTITUTING (A) A FELONY UNDER THE LAWS OF THE UNITED STATES OR ANY STATE
THEREOF OR (B) A MISDEMEANOR INVOLVING MORAL TURPITUDE; OR
(IV)
A MATERIAL BREACH OF BY EXECUTIVE OF THIS
AGREEMENT OR OTHER AGREEMENTS, INCLUDING, WITHOUT LIMITATION, ENGAGING IN ANY
ACTION IN BREACH OF RESTRICTIVE COVENANTS, HEREIN OR THEREIN, THAT CONTINUES
BEYOND THE CURE PERIOD (TO THE EXTENT THAT, IN THE BOARD'S REASONABLE JUDGMENT,
SUCH BREACH CAN BE CURED).
d.
"Code" shall mean the Internal Revenue
Code of 1986, as amended.
e.
"Change in Control" shall mean (i) the
sale (in one transaction or a series of transactions) of all or substantially
all of the assets of the Company to an Unaffiliated Person (as defined below);
(ii) a sale (in one transaction or a series of transactions) resulting in more
than 50% of the voting stock of the Company being held by an Unaffiliated
Person; (iii) a merger, consolidation, recapitalization or reorganization of the
Company with or into an Unaffiliated Person; if and only if any such event
listed in clauses (i) through (iii) above results in the inability of the
Investors, or any member or members of the Investors, to designate or elect a
majority of the Board (or the board of directors of the resulting entity or its
parent company).
For purposes of this definition, the term "Unaffiliated
Person" means any Person or "group" (as such term is defined in Sections
13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934, as amended) who is
not (x) an Investor or any member of the Investors, (y) an Affiliate of any
Investor or any member of any Investor, or (z) an entity in which any Investor,
or any member of any Investor holds, directly or indirectly, a majority of the
economic interests in such entity.
F.
"GOOD REASON" SHALL MEAN "GOOD
REASON" AS SUCH TERM IS DEFINED IN THE EMPLOYMENT AGREEMENT, OR IF THERE IS NO
SUCH EMPLOYMENT AGREEMENT, "GOOD REASON" SHALL MEAN:
(I)
A REDUCTION IN EXECUTIVE'S BASE SALARY OR
ANNUAL INCENTIVE COMPENSATION (OTHER THAN A GENERAL REDUCTION IN BASE SALARY
THAT AFFECTS ALL MEMBERS OF SENIOR MANAGEMENT IN SUBSTANTIALLY THE SAME
PROPORTIONS, PROVIDED THAT EXECUTIVE'S BASE SALARY IS NOT REDUCED BY MORE THAN
10%);
(II)
A SUBSTANTIAL REDUCTION OR ADVERSE CHANGE IN
EXECUTIVE'S DUTIES AND RESPONSIBILITIES;
(III)
A TRANSFER OF EXECUTIVE'S PRIMARY WORKPLACE BY
MORE THAN FIFTY MILES FROM THE CURRENT WORKPLACE;
(IV)
FAILURE OF THE COMPANY OR THE EMPLOYER TO COMPLY
WITH AND SATISFY SECTION 7(D) OF THIS AGREEMENT; OR
(V)
FAILURE OF THE COMPANY, THE EMPLOYER OR ANY
SUCCESSOR TO MAINTAIN THE AGREEMENT FOR A TWO YEAR PERIOD FOLLOWING A CHANGE IN
CONTROL.
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AND PROVIDED, FURTHER, THAT "GOOD REASON" SHALL CEASE TO EXIST FOR ANY SUCH