IN EACH CASE IN SUBSTANTIALLY THE SAME PROPORTION AS SUCH
SHAREHOLDERS OWNED SHARES OF THE COMPANY PRIOR TO SUCH TRANSACTION; (B) THE
SHAREHOLDERS OF THE COMPANY APPROVE AN AGREEMENT FOR THE SALE OR DISPOSITION (IN
ONE TRANSACTION OR A SERIES OF TRANSACTIONS) OF ASSETS OF THE COMPANY, THE TOTAL
CONSIDERATION OF WHICH IS GREATER THAN 51% OF THE TOTAL MARKET VALUE OF THE
COMPANY, OR (C) THE COMPANY ADOPTS A PLAN OF COMPLETE LIQUIDATION OR WINDING-UP
OF THE COMPANY.
ATOTAL MARKET VALUE@ SHALL MEAN THE AGGREGATE MARKET VALUE OF
THE COMPANY=S OR THE RESULTING ENTITY=S OUTSTANDING CAPITAL STOCK (ON A FULLY
DILUTED BASIS) PLUS THE AGGREGATE MARKET VALUE OF THE COMPANY=S OR THE RESULTING
ENTITY=S OTHER OUTSTANDING EQUITY SECURITIES AS MEASURED BY THE EXCHANGE RATE OF
THE TRANSACTION OR BY SUCH OTHER METHOD AS THE BOARD DETERMINES WHERE THERE IS
NOT A READILY ASCERTAINABLE EXCHANGE RATE; OR
(IV)
IF A CHANGE IN CONTROL OTHERWISE OCCURS WHICH WOULD BE REQUIRED TO
BE REPORTED IN RESPONSE TO THE CURRENT ITEM 6(E) OF SCHEDULE 14A OF REGULATION
14A PROMULGATED UNDER THE EXCHANGE ACT, WHETHER OR NOT THE COMPANY IS THEN
SUBJECT TO SUCH REPORTING REQUIREMENT.
3.
TERMINATION FOLLOWING CHANGE IN CONTROL. IF A CHANGE IN CONTROL
SHALL HAVE OCCURRED AND EXECUTIVE IS THEREAFTER TERMINATED WHILE THIS AGREEMENT
IS IN EFFECT, EXECUTIVE SHALL BE ENTITLED TO THE BENEFITS PROVIDED IN SUBSECTION
4(D) UNLESS SUCH TERMINATION IS (A) BECAUSE OF EXECUTIVE'S DEATH, (B) BY THE
COMPANY FOR CAUSE OR DISABILITY, OR (C) BY EXECUTIVE OTHER THAN FOR GOOD REASON.
(A)
DISABILITY.
FOR PURPOSES OF THIS AGREEMENT, THE TERM "DISABILITY"
SHALL HAVE TWO DIFFERENT MEANINGS.
FOR PURPOSES OF BENEFITS DUE UNDER ANY
COMPANY-SPONSORED DISABILITY INSURANCE POLICY (WHETHER SHORT-TERM, LONG-TERM, OR
ANY APPLICABLE SALARY CONTINUATION POLICY PROVIDED DURING ANY ELIMINATION
PERIOD), THE DEFINITION OF DISABILITY SHALL CONFORM TO THE DEFINITION PROVIDED
IN SUCH POLICY.
FOR PURPOSES OF ANY PAYMENT MADE TO EXECUTIVE IN EXCESS OF THE
BENEFITS DUE UNDER ANY SUCH COMPANY-SPONSORED DISABILITY INSURANCE POLICY, THE
DEFINITION OF DISABILITY SHALL BE AT LEAST AS RESTRICTIVE AS THE APPLICABLE
DEFINITION PROVIDED IN CODE SECTION 409A.
THE EXECUTIVE'S EMPLOYMENT SHALL
TERMINATE UPON THE DISABILITY OF THE EXECUTIVE UNLESS WAIVED BY THE COMPANY,
WHERE THE DEFINITION OF DISABILITY SHALL CONFORM TO THE DEFINITION OF DISABILITY
SET FORTH IN ANY COMPANY-SPONSORED DISABILITY INSURANCE POLICY.
2
(B)
CAUSE.
FOR PURPOSES OF THIS AGREEMENT, THE COMPANY SHALL HAVE THE
RIGHT TO IMMEDIATELY TERMINATE THE EMPLOYMENT OF EXECUTIVE FOR "CAUSE" IF THE
EXECUTIVE SHALL:
(I)
WILLFULLY OR MATERIALLY BREACH THIS AGREEMENT OR CONTINUALLY FAIL
TO PERFORM THE DUTIES THAT THE EXECUTIVE IS REQUIRED TO PERFORM UNDER THE TERMS
OF THIS AGREEMENT;
(II)
WILLFULLY VIOLATE OTHER REASONABLE AND SUBSTANTIAL
RULES GOVERNING EXECUTIVE PERFORMANCE, INCLUDING, WITHOUT LIMITATION,
PROHIBITIONS AGAINST UNAUTHORIZED USE OF DRUGS OR ALCOHOL WITHOUT TREATMENT;
(III)
VIOLATE OR WILLFULLY REFUSE TO OBEY
REASONABLE INSTRUCTIONS OF
THE CHIEF EXECUTIVE OFFICER AND/OR THE BOARD OF DIRECTORS, PROVIDED THAT SUCH
INSTRUCTIONS ARE NOT IN VIOLATION OF THIS AGREEMENT;
(IV)
WILLFULLY ENGAGE IN CONDUCT THAT IS DEMONSTRABLY