THE COMPANY
BUT ONLY IF RECEIVED BY BSMB ON THE DATE OF CONSUMMATION OF SUCH SALE OF THE
COMPANY, OR TO BE RECEIVED THEREAFTER IN CONNECTION WITH SUCH SALE OF THE
COMPANY PURSUANT TO AN INSTALLMENT SALE (EXCLUDING, FOR THE AVOIDANCE OF DOUBT,
ANY FEES PAID TO BSMB PURSUANT TO THE SERVICES AGREEMENT, BUT INCLUDING THE
PORTION OF ANY ADVISORY FEE (AS DEFINED IN THE SERVICES AGREEMENT) PAID TO BSMB
IN EXCESS OF $500,000 IN ANY FISCAL YEAR OF THE COMPANY); AND
(C)
THERE SHALL BE TAKEN INTO ACCOUNT THE EFFECT
OF ANY DILUTION RESULTING FROM ANY VESTING OF THE OPTION PURSUANT TO THIS
AGREEMENT.
6.
VESTING OF TIME VESTING OPTIONS.
(A)
A PORTION OF THE OPTION GRANTED UNDER THIS AGREEMENT REPRESENTING
THE RIGHT TO PURCHASE [
] SHARES SHALL BE SUBJECT TO VESTING (THE
"TIME VESTING OPTIONS") IN THE MANNER DESCRIBED IN THIS SECTION 6.
4
(B)
THE TIME VESTING OPTIONS SHALL FULLY VEST AND BECOME EXERCISABLE
WITH RESPECT TO THE APPLICABLE NUMBER OF SHARES SET FORTH BELOW IF AND ONLY IF
THE TERMINATION DATE DOES NOT OCCUR DURING THE PERIOD BEGINNING ON THE DATE
HEREOF AND ENDING ON THE APPLICABLE VESTING DATE DETERMINED BELOW. THE TIME
VESTING OPTIONS SHALL CUMULATIVELY VEST AND BECOME EXERCISABLE WITH RESPECT TO
16.66% OF THE SHARES (ROUNDED TO THE NEAREST ONE-THOUSANDTH (0.001) OF A SHARE
OF COMMON STOCK) ON EACH DECEMBER 31 AFTER THE DATE HEREOF DURING THE PERIOD
BEGINNING ON THE DATE HEREOF AND ENDING ON DECEMBER 31, 2012.
(C)
UPON A CHANGE IN CONTROL (AS DEFINED BELOW), 100% OF ANY PORTION
OF THE TIME VESTING OPTIONS THAT IS NOT VESTED AS OF THE DATE OF SUCH CHANGE IN
CONTROL SHALL BECOME VESTED AND IMMEDIATELY EXERCISABLE AND, SUBJECT TO SECTIONS
5.10 AND 6.4 OF THE PLAN, SHALL REMAIN EXERCISABLE FOR A PERIOD OF 90 DAYS
FOLLOWING SUCH CHANGE IN CONTROL. FOR THE PURPOSES
HEREOF, "CHANGE IN CONTROL"
MEANS ANY (I) SALE OR ISSUANCE (OR SERIES OF SALES OR ISSUANCES) OF COMMON STOCK
OR THE RIGHT TO ACQUIRE COMMON STOCK BY THE COMPANY OR ANY HOLDERS THEREOF WHICH
RESULTS IN ANY PERSON OR GROUP OF AFFILIATED PERSONS (OTHER THAN THE OWNERS OF
COMMON STOCK OR THE RIGHT TO ACQUIRE COMMON STOCK AS OF THE DATE HEREOF AND
AFFILIATES OF SUCH PERSONS) OWNING AND/OR HAVING THE RIGHT TO ACQUIRE MORE THAN
50% OF THE COMMON STOCK ON A FULLY DILUTED BASIS AT THE TIME OF SUCH SALE OR
ISSUANCE (OR SERIES OF SALES OR ISSUANCES), OTHER THAN IN CONNECTION WITH A
PUBLIC OFFERING OR (II) MERGER, SHARE EXCHANGE, REORGANIZATION, RECAPITALIZATION
OR CONSOLIDATION TO WHICH THE COMPANY IS A PARTY (OTHER THAN A MERGER IN WHICH
THE COMPANY IS THE SURVIVING ENTITY, OR A SHARE EXCHANGE IN WHICH CAPITAL STOCK
OF THE COMPANY IS ISSUED, THAT DOES NOT RESULT IN MORE THAN 49% OF THE COMPANY'S
OUTSTANDING CAPITAL STOCK POSSESSING THE VOTING POWER (UNDER ORDINARY
CIRCUMSTANCES) TO ELECT A MAJORITY OF THE BOARD BEING OWNED OF RECORD OR
BENEFICIALLY BY PERSONS OR ENTITIES OTHER