A REGISTERED PUBLIC
OFFERING.
PERSONS WILL BE CONSIDERED TO BE ACTING AS A GROUP (A "GROUP") IF
THEY ARE OWNERS OF A CORPORATION THAT ENTERS INTO A MERGER, CONSOLIDATION,
PURCHASE OR ACQUISITION OF STOCK, OR SIMILAR BUSINESS TRANSACTION WITH THE
CORPORATION.
IF A PERSON OWNS STOCK IN BOTH CORPORATIONS THAT ENTER INTO A
MERGER, CONSOLIDATION, PURCHASE OR ACQUISITION OF STOCK, OR SIMILAR TRANSACTION,
SUCH SHAREHOLDER IS CONSIDERED TO BE ACTING AS A GROUP WITH OTHER SHAREHOLDERS
ONLY WITH RESPECT TO THE OWNERSHIP IN THAT CORPORATION BEFORE THE TRANSACTION
GIVING RISE TO THE CHANGE AND NOT WITH RESPECT TO THE OWNERSHIP INTEREST IN THE
OTHER CORPORATION.
PERSONS WILL NOT BE CONSIDERED TO BE ACTING AS A GROUP
SOLELY BECAUSE THEY PURCHASE ASSETS OF THE SAME CORPORATION AT THE SAME TIME OR
PURCHASE OR OWN STOCK OF THE SAME CORPORATION AT THE SAME TIME, OR AS A RESULT
OF THE SAME PUBLIC OFFERING;
(II)
THE DATE THAT ANY PERSON OR GROUP ACQUIRES OWNERSHIP OF MORE THAN
50% OF THE THEN OUTSTANDING VOTING SECURITIES ENTITLED TO VOTE GENERALLY IN THE
ELECTION OF DIRECTORS OF THE CORPORATION; OR
(III)
THE DATE THAT ANY PERSON OR GROUP ACQUIRES (OR HAS ACQUIRED
DURING THE 12-MONTH PERIOD ENDING ON THE DATE OF THE MOST RECENT ACQUISITION BY
THE PERSON OR GROUP) ASSETS FROM THE PARENT THAT HAVE A TOTAL GROSS FAIR MARKET
VALUE EQUAL TO OR MORE THAN 40% OF THE TOTAL GROSS FAIR MARKET VALUE OF ALL OF
THE ASSETS OF THE PARENT IMMEDIATELY
7
BEFORE SUCH ACQUISITION OR ACQUISITIONS; PROVIDED THAT SUCH ACQUISITION IS
REQUIRED TO BE APPROVED BY THE PARENT'S STOCKHOLDERS UNDER THE DELAWARE GENERAL
CORPORATION LAW.
FOR THIS PURPOSE, GROSS FAIR MARKET VALUE MEANS THE VALUE OF
THE ASSETS OF THE PARENT, OR THE VALUE OF THE ASSETS BEING DISPOSED OF,
DETERMINED WITHOUT REGARD TO ANY LIABILITIES ASSOCIATED WITH THESE ASSETS.
(F)
"GOOD REASON" SHALL MEAN WITHOUT THE WRITTEN CONSENT OF EMPLOYEE:
(I)
A MATERIAL CHANGE IN EMPLOYEE'S DUTIES OR RESPONSIBILITIES WHICH
RESULTS IN OR REFLECTS A MATERIAL DIMINUTION OF THE SCOPE OR IMPORTANCE OF
EMPLOYEE'S POSITION;
(II)
A MATERIAL REDUCTION IN EMPLOYEE'S BASE SALARY;
(III)
A MATERIAL REDUCTION IN THE LEVEL OF BENEFITS AVAILABLE OR
AWARDED TO EMPLOYEE;
(IV)
A RELOCATION BY THE COMPANY OF EMPLOYEE'S PRIMARY EMPLOYMENT
LOCATION TO A LOCATION WHICH IS MORE THAN 50 MILES FROM EMPLOYEE'S PRIMARY
EMPLOYMENT LOCATION BEFORE THE CHANGE IN CONTROL; OR
(V)
ANY MATERIAL FAILURE BY THE COMPANY TO COMPLY WITH SECTION 3.5 OF
THIS AGREEMENT;
SO LONG AS EMPLOYEE NOTIFIES THE COMPANY WITHIN 90 DAYS AFTER THE EXISTENCE OF
ANY OF THESE CONDITIONS AND THE COMPANY FAILS TO CURE THE CONDITION WITHIN 30
DAYS AFTER RECEIPT OF THE NOTICE.
NOTWITHSTANDING THE FOREGOING, NO GOOD REASON
EXISTS UNLESS THE TERMINATION OF EMPLOYMENT OCCURS BY NO LATER THAN TWO YEARS
AFTER THE INITIAL EXISTENCE OF ANY CONDITION PROVIDED IN THIS SECTION 3.4(F).
(G)
"WINDOW PERIOD" SHALL MEAN THE 30-DAY PERIOD FOLLOWING THE FIRST
ANNIVERSARY OF A CHANGE IN CONTROL.
3.5.
SPECIAL TAX PAYMENTS.
(A)