A BUSINESS COMBINATION, UNLESS IMMEDIATELY FOLLOWING
SUCH BUSINESS COMBINATION:
I.
MORE THAN 50% OF THE TOTAL VOTING POWER OF (X) THE CORPORATION THAT
OWNS, LEASES OR CONTROLS ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF THE SURVIVING
CORPORATION, OR (Y) IF APPLICABLE, THE PARENT CORPORATION, IS REPRESENTED BY POI
VOTING SECURITIES THAT WERE OUTSTANDING IMMEDIATELY PRIOR TO SUCH BUSINESS
COMBINATION (OR, IF APPLICABLE, IS REPRESENTED BY SHARES INTO WHICH SUCH POI
VOTING SECURITIES WERE CONVERTED PURSUANT TO SUCH BUSINESS COMBINATION);
II.
NO PERSON (OTHER THAN ONE OR MORE CURRENT DEBT HOLDER OR ANY EMPLOYEE
BENEFIT PLAN (OR RELATED TRUST) SPONSORED OR MAINTAINED BY ONE OR MORE CURRENT
DEBT HOLDER (OR A SYNDICATE OR GROUP IN WHICH ONE OR MORE OF SUCH PERSONS,
COLLECTIVELY, BENEFICIALLY OWN A MAJORITY OF THE TOTAL VOTING POWER OF THE
SUBJECT VOTING SECURITIES
5
BENEFICIALLY OWNED BY SUCH SYNDICATE OR GROUP), THE SURVIVING CORPORATION OR THE
PARENT CORPORATION) IS OR BECOMES THE BENEFICIAL OWNER, DIRECTLY OR INDIRECTLY,
OF MORE THAN THIRTY-THREE AND ONE-THIRD PERCENT (331/3%) OF THE TOTAL VOTING
POWER OF THE OUTSTANDING VOTING SECURITIES ELIGIBLE TO ELECT DIRECTORS (OR THE
EQUIVALENT) OF THE PARENT CORPORATION (OR, IF THERE IS NO PARENT CORPORATION,
THE SURVIVING CORPORATION); AND
III.
AT LEAST A MAJORITY OF THE MEMBERS OF THE BOARD OF DIRECTORS OF THE
PARENT CORPORATION (OR, IF THERE IS NO PARENT CORPORATION, THE SURVIVING
CORPORATION) FOLLOWING THE CONSUMMATION OF THE BUSINESS COMBINATION WERE
INCUMBENT DIRECTORS AT THE TIME OF THE BOARD'S APPROVAL OF THE EXECUTION OF THE
INITIAL AGREEMENT PROVIDING FOR SUCH BUSINESS COMBINATION.
It is the intent of the parties that if an event that would constitute a "Change
in Control" under this Agreement occurs at POAMI, a "Change in Control" shall
have occurred for the purpose of this Agreement.
Upon the occurrence of an
event described in the preceding sentence, unless the context otherwise
requires, for purposes of this Agreement, POAMI shall be substituted for the
defined term "POI" in the definition of "Change in Control" together with
appropriate changes to other references in the definition of "Change in Control"
to give effect to the parties' intent;
(E)
"CITICORP GROUP" MEANS CITIBANK INTERNATIONAL PLC, ANY FUND THAT
IS CONTROLLED BY THE FOREGOING AND, AS APPLICABLE, THEIR RESPECTIVE PARTNERS,
MEMBERS, SUBSIDIARIES AND AFFILIATES (INCLUDING WITHOUT LIMITATION, ANY OTHER
ENTITIES CONTROLLED BY OR UNDER COMMON CONTROL WITH SUCH ENTITIES), WHERE THE
ASSETS OF EACH SUCH PARTNER, MEMBER, SUBSIDIARY OR AFFILIATE PRIMARILY CONSIST
OF POI VOTING SECURITIES AND/OR DEBT OF POI OR POAMI.
(F)
"CURRENT DEBT HOLDERS" MEANS QUADRANGLE GROUP, CITICORP GROUP
AND MACKAY SHIELDS GROUP.
(G)
"DATE OF TERMINATION" MEANS:
(A)
IF EXECUTIVE'S EMPLOYMENT IS TO BE TERMINATED FOR DISABILITY, 30 DAYS AFTER
NOTICE OF TERMINATION IS GIVEN (PROVIDED THAT EXECUTIVE SHALL NOT HAVE RETURNED
TO THE PERFORMANCE OF EXECUTIVE'S DUTIES ON A FULL-TIME BASIS DURING SUCH 30 DAY
PERIOD);
(B)
IF EXECUTIVE'S EMPLOYMENT IS TO BE TERMINATED BY THE COMPANY FOR CAUSE OR
BY EXECUTIVE FOR GOOD REASON, THE DATE SPECIFIED IN THE NOTICE OF