ALL OF THE
COMPANY'S ASSETS EITHER DIRECTLY OR THROUGH ONE OR MORE SUBSIDIARIES) (SUCH
RESULTING OR ACQUIRING CORPORATION IS REFERRED TO HEREIN AS THE "ACQUIRING
CORPORATION") IN SUBSTANTIALLY THE SAME PROPORTIONS AS THEIR OWNERSHIP,
IMMEDIATELY PRIOR TO SUCH BUSINESS COMBINATION, OF THE OUTSTANDING COMPANY
COMMON STOCK AND OUTSTANDING COMPANY VOTING SECURITIES, RESPECTIVELY; AND
(II) NO PERSON (EXCLUDING THE ACQUIRING CORPORATION, ANY EMPLOYEE BENEFIT PLAN
(OR RELATED TRUST) MAINTAINED OR SPONSORED BY THE COMPANY OR BY THE ACQUIRING
CORPORATION OR ANY EXEMPT PERSON) WHICH HAS EITHER (X) FILED A FORM 13D IN
RESPECT OF ITS HOLDINGS WITH THE SEC, OR (Y) IN THE REASONABLE OPINION OF THE
COMPANY, SHOULD HAVE FILED A FORM 13D WITH THE SEC IN RESPECT OF ITS HOLDINGS
AND ITS INTENTIONS, BENEFICIALLY OWNS, DIRECTLY OR INDIRECTLY, 30% OR MORE OF
THE THEN OUTSTANDING SHARES OF COMMON STOCK OF THE ACQUIRING CORPORATION, OR OF
THE COMBINED VOTING POWER OF THE THEN-OUTSTANDING SECURITIES OF SUCH CORPORATION
ENTITLED TO VOTE GENERALLY IN THE ELECTION OF DIRECTORS (EXCEPT TO THE EXTENT
THAT SUCH OWNERSHIP EXISTED PRIOR TO THE BUSINESS COMBINATION); OR
(D)
APPROVAL BY THE STOCKHOLDERS OF THE COMPANY OF A COMPLETE LIQUIDATION OR
DISSOLUTION OF THE COMPANY (AS DISTINGUISHED FROM A FILING MADE BY THE COMPANY
UNDER CHAPTER 11 OF THE FEDERAL BANKRUPTCY LAWS).
1.2
"CHANGE IN CONTROL DATE" MEANS THE FIRST DATE DURING THE TERM (AS
DEFINED IN SECTION 2) ON WHICH A CHANGE IN CONTROL OCCURS.
ANYTHING IN THIS
AGREEMENT TO THE CONTRARY NOTWITHSTANDING, IF (A) A CHANGE IN CONTROL OCCURS,
(B)
THE EXECUTIVE'S EMPLOYMENT WITH THE COMPANY IS TERMINATED PRIOR TO THE DATE
ON WHICH THE CHANGE IN CONTROL OCCURS, AND (C) IT IS REASONABLY DEMONSTRATED BY
THE EXECUTIVE THAT SUCH TERMINATION OF EMPLOYMENT (I) WAS AT THE REQUEST OF A
THIRD PARTY WHO HAS TAKEN STEPS REASONABLY CALCULATED TO EFFECT A CHANGE IN
CONTROL OR (II) OTHERWISE AROSE IN CONNECTION WITH OR IN ANTICIPATION OF A
CHANGE IN CONTROL, THEN FOR ALL PURPOSES OF THIS AGREEMENT THE "CHANGE IN
CONTROL DATE" SHALL MEAN THE DATE IMMEDIATELY PRIOR TO THE DATE OF SUCH
TERMINATION OF EMPLOYMENT.
1.3
"CAUSE" MEANS:
(A)
THE EXECUTIVE'S ABJECT FAILURE TO WORK COOPERATIVELY WITH THE COMPANY'S
OTHER OFFICERS AND SENIOR EMPLOYEES, AS DETERMINED IN GOOD FAITH BY THE CEO,
FOLLOWING REASONABLE NOTICE AND OPPORTUNITY TO CURE;
2
(B)
THE EXECUTIVE'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN PERFORMING ANY
ACTION, OR NOT PERFORMING ANY ACTION, THAT HAS HAD, OR COULD HAVE, ALONE OR IN
THE AGGREGATE, A MATERIAL NEGATIVE IMPACT ON THE COMPANY;
(C)
THE EXECUTIVE'S THEFT, DISHONESTY, WILLFUL MISCONDUCT, BREACH OF FIDUCIARY
DUTY FOR PERSONAL PROFIT, OR FALSIFICATION OF ANY COMPANY DOCUMENTS OR RECORDS;
(D)
THE EXECUTIVE'S UNAUTHORIZED USE, MISAPPROPRIATION, DESTRUCTION OR
DIVERSION OF ANY MATERIAL ASSET OR CORPORATE OPPORTUNITY OF THE COMPANY
(INCLUDING, WITHOUT LIMITATION, THE EXECUTIVE'S IMPROPER USE OR DISCLOSURE OF
THE COMPANY'S CONFIDENTIAL OR PROPRIETARY INFORMATION OR HIS FAILURE TO ABIDE BY
COMPANY POLICIES RELATING TO CONFIDENTIALITY);
(E)
ANY INTENTIONAL ACT BY THE EXECUTIVE WHICH HAS A MATERIAL DETRIMENTAL