PARTIAL OR COMPLETE LIQUIDATION, OR OTHER DISTRIBUTION OF ASSETS OR ISSUANCE OF
RIGHTS OR WARRANTS TO PURCHASE SECURITIES, OR (III) ANY OTHER CORPORATE
TRANSACTION OR EVENT HAVING AN EFFECT SIMILAR TO ANY OF THE FOREGOING.
IN THE
CASE OF A CHANGE IN CONTROL, SUCH SUBSTITUTIONS AND ADJUSTMENTS INCLUDE, WITHOUT
LIMITATION, CANCELING ANY AND ALL OPTIONS IN EXCHANGE FOR CASH PAYMENTS EQUAL TO
THE EXCESS, IF ANY, OF THE VALUE OF THE CONSIDERATION PAID TO A SHAREHOLDER OF
AN OPTION SHARE OVER THE OPTION PRICE PER SHARE SUBJECT TO SUCH OPTION IN
CONNECTION WITH SUCH AN ADJUSTMENT EVENT.
(B)
TO THE EXTENT THAT ANY EQUITY SECURITIES OF
ANY MEMBER OF THE COMPANY'S CONTROLLED GROUP BECOME PUBLICLY TRADED, AT SUCH
TIME ALL OPTIONS SHALL BE EXCHANGED, IN A MANNER CONSISTENT WITH SECTIONS 409A
AND 424 OF THE CODE, FOR OPTIONS WITH THE SAME INTRINSIC VALUE IN THE
PUBLICLY-TRADED ENTITY, AND ALL SHARES SHALL BE EXCHANGED FOR SHARES OF COMMON
STOCK WITH THE SAME AGGREGATE VALUE OF THE PUBLICLY-TRADED ENTITY.
14.
RELATION TO OTHER BENEFITS.
ANY ECONOMIC OR
OTHER BENEFIT TO OPTIONEE UNDER THIS AGREEMENT SHALL NOT BE TAKEN INTO ACCOUNT
IN DETERMINING ANY BENEFITS TO WHICH OPTIONEE MAY BE ENTITLED UNDER ANY
PROFIT-SHARING, RETIREMENT OR OTHER BENEFIT OR COMPENSATION PLAN MAINTAINED BY
THE COMPANY OR ANY SUBSIDIARY AND SHALL NOT AFFECT THE AMOUNT OF ANY LIFE
INSURANCE COVERAGE AVAILABLE TO ANY BENEFICIARY UNDER ANY LIFE INSURANCE PLAN
COVERING EMPLOYEES OF THE COMPANY OR ANY SUBSIDIARY.
15.
AMENDMENTS.
ANY AMENDMENT TO THE PLAN SHALL
BE DEEMED TO BE AN AMENDMENT TO THIS AGREEMENT TO THE EXTENT THAT THE AMENDMENT
IS APPLICABLE HERETO.
16.
SEVERABILITY.
IF ONE OR MORE OF THE
PROVISIONS OF THIS AGREEMENT IS INVALIDATED FOR ANY REASON BY A COURT OF
COMPETENT JURISDICTION, ANY PROVISION SO INVALIDATED SHALL BE DEEMED
4
TO BE SEPARABLE FROM THE OTHER PROVISIONS HEREOF, AND THE REMAINING PROVISIONS
HEREOF SHALL CONTINUE TO BE VALID AND FULLY ENFORCEABLE.
17.
RELATION TO PLAN.
THIS AGREEMENT IS SUBJECT
TO THE TERMS AND CONDITIONS OF THE PLAN.
IN THE EVENT OF ANY INCONSISTENT
PROVISIONS BETWEEN THIS AGREEMENT AND THE PLAN, THE PLAN SHALL GOVERN.
THE
BOARD ACTING PURSUANT TO THE PLAN, AS CONSTITUTED FROM TIME TO TIME, SHALL,
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE HEREIN, HAVE THE RIGHT TO DETERMINE ANY
QUESTIONS WHICH ARISE IN CONNECTION WITH THE OPTION OR ITS EXERCISE.
18.
SUCCESSORS AND ASSIGNS.
THE PROVISIONS OF
THIS AGREEMENT SHALL INURE TO THE BENEFIT OF, AND BE BINDING UPON, THE
SUCCESSORS, ADMINISTRATORS, HEIRS, LEGAL REPRESENTATIVES AND ASSIGNS OF
OPTIONEE, AND THE SUCCESSORS AND ASSIGNS OF THE COMPANY.
19.
GOVERNING LAW.
THE INTERPRETATION,
PERFORMANCE, AND ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICT OF
LAWS THEREOF AND ALL PARTIES, INCLUDING THEIR SUCCESSORS AND ASSIGNS, CONSENT TO
THE JURISDICTION OF THE STATE AND FEDERAL COURTS OF NEW YORK.
20.
PRIOR AGREEMENT.
AS OF THE GRANT DATE, THIS
AGREEMENT SUPERSEDES ANY AND ALL PRIOR AND/OR