OR OTHER
DISPOSITION (INCLUDING BY MERGER OR CONSOLIDATION) BY STOCKHOLDERS OF THE
COMPANY, IN ONE TRANSACTION OR A SERIES OF RELATED TRANSACTIONS, OF MORE THAN
THIRTY-FIVE PERCENT (35%) OF THE VOTING POWER REPRESENTED BY THE THEN
OUTSTANDING STOCK OF THE COMPANY TO ONE OR MORE PERSONS, OTHER THAN ANY SUCH
SALES, TRANSFERS, ASSIGNMENTS OR OTHER DISPOSITIONS BY SUCH STOCKHOLDERS TO
THEIR RESPECTIVE AFFILIATES.
FOR THE PURPOSES OF THIS AGREEMENT,
(1) "AFFILIATE" MEANS, WITH RESPECT TO ANY STOCKHOLDER OF THE COMPANY, (X) ANY
PERSON DIRECTLY OR INDIRECTLY CONTROLLING, CONTROLLED BY OR UNDER COMMON CONTROL
WITH SUCH STOCKHOLDER OR (Y) ANY OFFICER, DIRECTOR OR GENERAL PARTNER OF SUCH
STOCKHOLDER; AND (2) "PERSON" MEANS AN INDIVIDUAL, PARTNERSHIP, CORPORATION,
JOINT VENTURE, ASSOCIATION, TRUST, UNINCORPORATED ASSOCIATION, OTHER ENTITY,
ASSOCIATION OR GROUP OF ASSOCIATED PERSONS ACTING IN CONCERT (EXCEPT THAT SUCH
TERM SHALL NOT INCLUDE EMPLOYEES OF THE COMPANY, DAN W. MATTHIAS AND/OR REBECCA
C. MATTHIAS);
(II)
THE CORPORATION SELLS ALL OR SUBSTANTIALLY
ALL OF ITS ASSETS TO ANY OTHER PERSON IN ANY SALE OR SERIES OF RELATED SALES
(OTHER THAN A TRANSACTION TO WHICH ONLY THE COMPANY AND ONE OR MORE OF ITS
SUBSIDIARIES ARE PARTIES); OR
(III)
ANY PERSON BECOMES A DIRECT OR INDIRECT
BENEFICIAL OWNER OF SHARES OF STOCK OF THE CORPORATION REPRESENTING AN AGGREGATE
OF 35% OR MORE OF THE VOTES THEN ENTITLED TO BE CAST AT AN ELECTION OF DIRECTORS
OF THE CORPORATION (UNLESS A VOTING AGREEMENT REMAINS IN EFFECT IN RESPECT OF A
GREATER THAN 51% OF SUCH SHARES).
(C)
IN THE EVENT OF A TERMINATION OF EMPLOYEE'S
EMPLOYMENT HEREUNDER PURSUANT TO SECTION 9.6, EMPLOYEE SHALL BE ENTITLED TO
RECEIVE ALL ACCRUED BUT UNPAID (AS OF THE EFFECTIVE DATE OF SUCH TERMINATION)
BASE SALARY, BENEFITS AND BONUSES, AND THE SEVERANCE PAY; PROVIDED, HOWEVER,
THAT IF THIS AGREEMENT IS ASSUMED BY ANY SUCCESSOR TO ALL OR SUBSTANTIALLY ALL
OF THE COMPANY'S ASSETS AND BUSINESS, SUCH PAYMENTS SHALL BE THE JOINT AND
SEVERAL OBLIGATION OF THE COMPANY AND SUCH PURCHASER.
ALSO, IN THE EVENT OF
TERMINATION PURSUANT TO THIS SECTION 9.6, ALL OUTSTANDING OPTIONS SHALL BECOME
IMMEDIATELY VESTED AND EXERCISABLE.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS
SECTION 9.6, ALL BASE SALARY, BENEFITS AND
8
BONUSES SHALL CEASE AT THE TIME OF SUCH TERMINATION, SUBJECT TO THE TERMS OF ANY
BENEFIT OR COMPENSATION PLANS THEN IN FORCE AND APPLICABLE TO EMPLOYEE.
(D)
NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, IF THE EMPLOYEE'S EMPLOYMENT TERMINATES FOR ANY REASON FOLLOWING A
CHANGE IN CONTROL, THEN, ANY ACCRUED AND UNPAID OPTION COMPENSATION PAYABLE IN
CONNECTION WITH THAT TERMINATION WILL BE PAID IN THE FORM OF A CASH LUMP SUM (IN
LIEU OF AN ACTUAL STOCK OPTION GRANT): (I) IN THE CASE OF OPTION COMPENSATION
PAYABLE IN RESPECT OF A COMPLETED FISCAL YEAR, ON THE CUSTOMARY PAYMENT DATE IN
AN AMOUNT EQUAL TO THE PRODUCT OF (A) THE NUMBER OF SHARES THAT WOULD HAVE BEEN
SUBJECT TO THE STOCK OPTION THAT OTHERWISE WOULD HAVE BEEN GRANTED IN RESPECT OF
THAT OPTION COMPENSATION, BUT FOR THE