PERMITTED TO PARTICIPATE IN ANY BENEFITS (EXCEPT PAYMENTS DUE THE EXECUTIVE
OR THE EXECUTIVE'S BENEFICIARIES OR REPRESENTATIVES UNDER ANY APPLICABLE
PENSION, PROFIT SHARING, LIFE OR DISABILITY INSURANCE PLANS OR POLICIES); AND
(III) FORFEIT ANY AND ALL NON-VESTED OPTIONS GRANTED OR NON-VESTED COMMON STOCK
PURCHASED UNDER THE PLANS.
(E)
DEFINITIONS. FOR PURPOSES OF THIS SECTION 9 THE TERMS LISTED BELOW
SHALL MEAN THE FOLLOWING:
7
(I)
"CHANGE IN CONTROL" SHALL MEAN:
(A)
THE DIRECT OR INDIRECT ACQUISITION, WHETHER BY SALE, MERGER,
CONSOLIDATION, OR PURCHASE OF ASSETS OR STOCK, BY ANY PERSON, CORPORATION, OR
OTHER ENTITY OR GROUP THEREOF OF THE BENEFICIAL OWNERSHIP (AS THAT TERM IS USED
IN SECTION 13(D)(L) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, AND THE
RULES AND REGULATIONS PROMULGATED THEREUNDER) OF SHARES IN THE COMPANY WHICH,
WHEN ADDED TO ANY OTHER SHARES THE BENEFICIAL OWNERSHIP OF WHICH IS HELD BY THE
ACQUIROR, SHALL RESULT IN THE ACQUIRER'S HAVING MORE THAN 33% OF THE VOTES THAT
ARE ENTITLED TO BE CAST AT MEETINGS OF STOCKHOLDERS AS TO MATTERS ON WHICH ALL
OUTSTANDING SHARES ARE ENTITLED TO BE VOTED AS A SINGLE CLASS; PROVIDED,
HOWEVER, THAT SUCH ACQUISITION SHALL NOT CONSTITUTE A CHANGE OF CONTROL FOR
PURPOSES OF THIS AGREEMENT IF PRIOR TO SUCH ACQUISITION A RESOLUTION DECLARING
THAT THE ACQUISITION SHALL NOT CONSTITUTE A CHANGE OF CONTROL IS ADOPTED BY THE
BOARD WITH THE SUPPORT OF A MAJORITY OF THE BOARD MEMBERS WHO EITHER WERE
MEMBERS OF THE BOARD FOR AT LEAST TWO YEARS PRIOR TO THE DATE OF THE VOTE ON
SUCH RESOLUTION OR WERE NOMINATED FOR ELECTION TO THE BOARD BY AT LEAST
TWO-THIRDS OF THE DIRECTORS THEN STILL IN OFFICE WHO WERE MEMBERS OF THE BOARD
AT LEAST TWO YEARS PRIOR TO THE DATE OF THE VOTE ON SUCH RESOLUTION; AND
PROVIDED FURTHER, THAT NEITHER THE COMPANY, NOR ANY PERSON WHO AS OF THE DATE
HEREOF WAS A DIRECTOR OR OFFICER OF THE COMPANY, NOR ANY TRUSTEE OR OTHER
FIDUCIARY HOLDING SECURITIES UNDER AN EMPLOYEE BENEFIT PLAN OF THE COMPANY, NOR
ANY CORPORATION OWNED, DIRECTLY OR INDIRECTLY, BY THE SHAREHOLDERS OF THE
COMPANY IN SUBSTANTIALLY THE SAME PROPORTIONS AS THEIR OWNERSHIP OF SHARES OF
THE COMPANY SHALL BE DEEMED TO BE AN "ACQUIRER" FOR PURPOSES OF THIS SECTION.
(B)
THE ELECTION DURING ANY TWO-YEAR PERIOD TO A MAJORITY OF THE SEATS
ON THE BOARD OF DIRECTORS OF THE COMPANY OF INDIVIDUALS WHO WERE NOT MEMBERS OF
THE BOARD AT THE BEGINNING OF SUCH PERIOD UNLESS SUCH ADDITIONAL OR REPLACEMENT
DIRECTORS WERE APPROVED BY AT LEAST 80% OF THE CONTINUING DIRECTORS.
(C)
SHAREHOLDER APPROVAL OF 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.
(II)
"GOOD REASON" SHALL MEAN THE OCCURRENCE OF (A) A MATERIAL BREACH
OF THIS AGREEMENT BY THE COMPANY OR (B) THE FAILURE OF THE COMPANY TO CONTINUE
TO PROVIDE THE EXECUTIVE WITH SALARY AND BENEFITS SUBSTANTIALLY SIMILAR TO THOSE
DESCRIBED