TO KIRSCHBAUM:
Joel Kirschbaum
527 Madison Avenue, 17th Floor
New York, New York
10022
Facsimile:
(212) 888-1253
9.
ENTIRE AGREEMENT.
THIS AGREEMENT CONSTITUTES THE ENTIRE
AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL PRIOR AGREEMENTS AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER OF THIS
AGREEMENT.
10.
AMENDMENT.
THIS AGREEMENT MAY BE AMENDED OR MODIFIED ONLY BY A
WRITTEN INSTRUMENT EXECUTED BY BOTH THE COMPANY AND KIRSCHBAUM.
11.
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT IS PERSONAL TO KIRSCHBAUM
AND MAY NOT BE TRANSFERRED OR ASSIGNED BY HIM.
NEITHER THIS AGREEMENT NOR ANY
RIGHT OR INTEREST UNDER IT SHALL BE ASSIGNABLE BY THE COMPANY WITHOUT THE PRIOR
WRITTEN CONSENT OF KIRSCHBAUM; PROVIDED, HOWEVER, THAT THE COMPANY SHALL BE
OBLIGATED TO CAUSE THE ASSIGNMENT OF THIS AGREEMENT PURSUANT TO A CHANGE OF
CONTROL, AS SET FORTH IN SECTION 12 BELOW.
THIS AGREEMENT SHALL BE BINDING UPON
AND INURE TO THE BENEFIT OF THE HEIRS, ESTATE, SUCCESSORS AND PERMITTED ASSIGNS
OF EACH PARTY.
12.
CHANGE OF CONTROL.
UPON A CHANGE OF CONTROL OF THE COMPANY (AS
DEFINED BELOW), THE COMPANY SHALL BE OBLIGATED TO CAUSE ANY SURVIVING OR
SUCCESSOR ENTITY TO ASSUME, BE RESPONSIBLE FOR AND HONOR SECTIONS 2(B)(II) AND
3(A) OF THIS AGREEMENT.
FOR PURPOSES OF THIS AGREEMENT, A "CHANGE OF CONTROL"
MEANS (A) THE ACQUISITION, DIRECTLY OR INDIRECTLY, BY ANY UNAFFILIATED PERSON,
ENTITY OR GROUP (A "THIRD PARTY") OF BENEFICIAL OWNERSHIP OF 50% OR GREATER OF
THE COMBINED VOTING POWER OF THE COMPANY'S THEN OUTSTANDING VOTING SECURITIES
ENTITLED TO VOTE GENERALLY IN THE ELECTION OF DIRECTORS; OR (B) CONSUMMATION OF
(I) A REORGANIZATION, MERGER OR CONSOLIDATION OF THE COMPANY, OR (II) A
LIQUIDATION OR DISSOLUTION OF THE COMPANY OR (III) A SALE OF ALL OR
SUBSTANTIALLY ALL OF THE ASSETS OF THE COMPANY (WHETHER SUCH ASSETS ARE HELD
DIRECTLY OR INDIRECTLY) TO A THIRD PARTY; OR (C) THE INDIVIDUALS WHO AS OF THE
DATE OF THIS AGREEMENT ARE MEMBERS OF THE BOARD OF DIRECTORS (TOGETHER WITH ANY
DIRECTORS ELECTED OR NOMINATED BY A MAJORITY OF SUCH INDIVIDUALS) CEASE FOR ANY
REASON TO CONSTITUTE AT LEAST A MAJORITY OF THE MEMBERS OF THE BOARD OF
DIRECTORS; EXCEPT THAT ANY EVENT OR TRANSACTION WHICH WOULD BE A "CHANGE OF
CONTROL" UNDER CLAUSE (A) OR (B)(I) OR (III) OF THIS DEFINITION, SHALL NOT BE A
CHANGE OF CONTROL IF PERSONS WHO WERE THE EQUITY HOLDERS OF THE COMPANY
IMMEDIATELY PRIOR TO SUCH EVENT OR TRANSACTION (OTHER THAN THE ACQUIROR IN THE
CASE OF A REORGANIZATION, MERGER OR CONSOLIDATION), IMMEDIATELY THEREAFTER,
BENEFICIALLY OWN MORE THAN 50% OF THE COMBINED VOTING POWER OF THE COMPANY'S OR
THE REORGANIZED, MERGED OR CONSOLIDATED COMPANY'S THEN OUTSTANDING VOTING
SECURITIES ENTITLED TO VOTE GENERALLY IN THE ELECTION OF DIRECTORS.
13.
OTHER ACTIVITIES.
THE COMPANY EXPLICITLY ACKNOWLEDGES AND AGREES
THAT DURING THE TERM, KIRSCHBAUM WILL ALSO BE ENGAGED IN A VARIETY OF OTHER
SUBSTANTIAL BUSINESS ACTIVITIES THAT DO NOT RELATE TO THE BUSINESS OF THE
COMPANY.
14.
WAIVER.
EITHER PARTY'S FAILURE TO ENFORCE ANY PROVISION OR
PROVISIONS OF THIS