BELOW).
THE FOREGOING DEFINITIONS OF GOOD REASON SHALL NOT BE
APPLICABLE, HOWEVER, IF THE EVENT CONSTITUTING GOOD REASON OCCURS:
(I) WITH
EXECUTIVE'S EXPRESS PRIOR WRITTEN CONSENT,
4
OR (II) IN CONNECTION WITH TERMINATION OF EXECUTIVE'S EMPLOYMENT FOR CAUSE OR
DUE TO HIS DEATH OR PERMANENT DISABILITY.
(I)
FOR PURPOSES OF THIS AGREEMENT, "CHANGE IN CONTROL" OF THE
COMPANY SHALL BE DEEMED TO HAVE OCCURRED IF:
(I) ANY PERSON (AS SUCH TERM IS
USED IN SECTIONS 13(D) AND 14(D) OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED (THE "EXCHANGE ACT"), OTHER THAN A TRUSTEE OR OTHER FIDUCIARY HOLDING
SECURITIES OF THE COMPANY UNDER AN EMPLOYEE BENEFIT PLAN OF THE COMPANY, BECOMES
THE BENEFICIAL OWNER (AS DEFINED IN RULE 13D-3 PROMULGATED UNDER THE EXCHANGE
ACT), DIRECTLY OR INDIRECTLY, OF SECURITIES OF THE COMPANY REPRESENTING FIFTY
PERCENT (50%) OR MORE OF:
(A) THE OUTSTANDING SHARES OF COMMON STOCK OF THE
COMPANY, OR (B) THE COMBINED VOTING POWER OF THE COMPANY'S THEN-OUTSTANDING
SECURITIES ENTITLED TO VOTE GENERALLY IN THE ELECTION OF DIRECTORS; (II) THE
STOCKHOLDERS OF THE COMPANY APPROVE A MERGER OR CONSOLIDATION WHICH WOULD RESULT
IN THE HOLDERS OF VOTING SECURITIES OF THE COMPANY OUTSTANDING IMMEDIATELY PRIOR
THERETO FAILING TO CONTINUE TO REPRESENT (EITHER BY REMAINING OUTSTANDING OR BY
BEING CONVERTED INTO VOTING SECURITIES OF THE SURVIVING ENTITY) AT LEAST FIFTY
PERCENT (50%) OF THE COMBINED VOTING POWER OF THE VOTING SECURITIES OF THE
COMPANY OR SUCH SURVIVING ENTITY OUTSTANDING IMMEDIATELY AFTER SUCH MERGER OR
CONSOLIDATION; OR (III) THE STOCKHOLDERS OF THE COMPANY APPROVE A PLAN OF
COMPLETE LIQUIDATION OF THE COMPANY OR AN AGREEMENT FOR THE SALE OR DISPOSITION
BY THE COMPANY OF ALL OR SUBSTANTIALLY ALL OF THE COMPANY'S ASSETS OR ANY
TRANSACTION HAVING A SIMILAR EFFECT.
(J)
IN THE EVENT OF ANY DISPUTE REGARDING THE EXISTENCE OF
EXECUTIVE'S PERMANENT DISABILITY HEREUNDER, THE MATTER WILL BE RESOLVED BY A
PHYSICIAN QUALIFIED TO PRACTICE MEDICINE IN THE BOSTON METROPOLITAN AREA WHO IS
ON THE STAFF OF A UNIVERSITY HOSPITAL AND HAS NO PRIOR RELATIONSHIP WITH
EXECUTIVE, WHICH PHYSICIAN SHALL BE JOINTLY SELECTED BY EACH OF EXECUTIVE (OR
HIS NOMINEE) AND THE BOARD OF DIRECTORS OF THE COMPANY.
FOR THIS PURPOSE,
EXECUTIVE WILL SUBMIT TO ALL APPROPRIATE MEDICAL EXAMINATIONS.
5.
CONFIDENTIAL INFORMATION.
EXECUTIVE ACKNOWLEDGES THAT THE
INFORMATION, OBSERVATIONS AND DATA OBTAINED BY HIM WHILE EMPLOYED BY THE COMPANY
CONCERNING THE BUSINESS OR AFFAIRS OF THE COMPANY ("CONFIDENTIAL INFORMATION")
ARE THE PROPERTY OF THE COMPANY.
THEREFORE, EXECUTIVE AGREES THAT HE SHALL NOT
DISCLOSE TO ANY UNAUTHORIZED PERSON OR USE FOR HIS OWN ACCOUNT ANY CONFIDENTIAL
INFORMATION WITHOUT THE PRIOR WRITTEN CONSENT OF A MAJORITY OF THE BOARD OF THE
COMPANY, UNLESS AND TO THE EXTENT REQUIRED BY LAW, RULE OR REGULATION OR
PURSUANT TO ANY ADMINISTRATIVE OR COURT ORDER.
THE TERM "CONFIDENTIAL
INFORMATION" SHALL NOT INCLUDE:
(I) INFORMATION WHICH IS GENERALLY AVAILABLE TO
THE PUBLIC OR THOSE IN THE COMPANY'S INDUSTRY AS OF THE DATE OF EXECUTION OF
THIS AGREEMENT OR WHICH LATER BECOMES GENERALLY AVAILABLE TO THE PUBLIC OR THOSE
IN