BE DETERMINED BY A MAJORITY OF THE DIRECTORS AND THEIR
DETERMINATION SHALL BE SET FORTH IN WRITING AND ATTESTED TO BY EACH CONCURRING
DIRECTOR.
PROVIDED FURTHER THAT IN CONNECTION WITH AN EVENT DESCRIBED IN
SECTION 6.1 (III) ABOVE, EXECUTIVE SHALL FIRST HAVE RECEIVED A WRITTEN NOTICE
FROM THE CORPORATION WHICH SETS FORTH IN REASONABLE DETAIL THE MANNER IN WHICH
EXECUTIVE HAS GROSSLY OR PERSISTENTLY NEGLECTED HER DUTIES, AND EXECUTIVE SHALL
HAVE A PERIOD OF TEN
2
(10) DAYS TO CURE THE SAME, BUT THE CORPORATION SHALL NEITHER BE REQUIRED TO
GIVE WRITTEN NOTICE OF, NOR SHALL EXECUTIVE HAVE A PERIOD TO CURE, THE SAME OR
ANY SIMILAR GROSS OR PERSISTENT NEGLECT OR MATERIAL BREACH WHICH THE CORPORATION
HAS PREVIOUSLY GIVEN WRITTEN NOTICE TO EXECUTIVE HEREUNDER AND EXECUTIVE HAS
CURED SUCH NEGLECT OR BREACH.
6.2
A "CHANGE OF CONTROL" SHALL BE DEEMED TO HAVE OCCURRED IF
(I) THERE SHALL BE CONSUMMATED (A) ANY CONSOLIDATION OR MERGER IN WHICH THE
CORPORATION IS NOT THE CONTINUING OR SURVIVING CORPORATION OR PURSUANT TO WHICH
SHARES OF THE CORPORATION'S COMMON STOCK WOULD BE CONVERTED INTO CASH,
SECURITIES OR OTHER PROPERTY, OTHER THAN A CONSOLIDATION OR A MERGER HAVING THE
SAME PROPORTIONATE OWNERSHIP OF COMMON STOCK OF THE SURVIVING CORPORATION
IMMEDIATELY AFTER THE CONSOLIDATION OR MERGER OR (B) ANY SALE, LEASE, EXCHANGE
OR OTHER TRANSFER (IN ONE TRANSACTION OR A SERIES OF RELATED TRANSACTIONS OTHER
THAN IN THE ORDINARY COURSE OF BUSINESS OF THE CORPORATION) OF ALL, OR
SUBSTANTIALLY ALL, OF THE ASSETS OF THE CORPORATION TO ANY CORPORATION, PERSON
OR OTHER ENTITY WHICH IS NOT A DIRECT OR INDIRECT WHOLLY-OWNED SUBSIDIARY OF THE
CORPORATION, OR (II) ANY PERSON, GROUP, CORPORATION OR OTHER ENTITY
(COLLECTIVELY, "PERSONS") SHALL ACQUIRE BENEFICIAL OWNERSHIP (AS DETERMINED
PURSUANT TO SECTION 13(D) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED,
AND RULES AND REGULATIONS PROMULGATED THEREUNDER) OF 50% OR MORE OF THE
CORPORATION'S OUTSTANDING COMMON STOCK.
IN ALL CASES, THE DETERMINATION OF
WHETHER A CHANGE OF CONTROL HAS OCCURRED SHALL BE MADE IN ACCORDANCE WITH
SECTION 409A OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND
THE REGULATIONS, NOTICES AND OTHER GUIDANCE OF GENERAL APPLICABILITY ISSUED
THEREUNDER.
6.3
"CONFIDENTIAL INFORMATION" MEANS ANY INFORMATION THAT IS NOT
GENERALLY KNOWN, INCLUDING TRADE SECRETS, OUTSIDE THE COMPANY AND THAT IS
PROPRIETARY TO THE COMPANY, RELATING TO ANY PHASE OF THE COMPANY'S EXISTING OR
REASONABLY FORESEEABLE BUSINESS WHICH IS DISCLOSED TO EXECUTIVE DURING
EXECUTIVE'S EMPLOYMENT BY THE COMPANY INCLUDING INFORMATION CONCEIVED,
DISCOVERED OR DEVELOPED BY EXECUTIVE.
CONFIDENTIAL INFORMATION INCLUDES, BUT IS
NOT LIMITED TO, BUSINESS PLANS; FINANCIAL STATEMENTS AND PROJECTIONS; OPERATING
FORMS (INCLUDING CONTRACTS) AND PROCEDURES; PAYROLL AND PERSONNEL RECORDS;
MARKETING MATERIALS AND PLANS; PROPOSALS; SUPPLIER INFORMATION; CUSTOMER
INFORMATION; SOFTWARE CODES AND COMPUTER PROGRAMS; CUSTOMER LISTS; PROJECT
LISTS; PROJECT FILES; TRAINING MANUALS; POLICIES AND PROCEDURES MANUALS; HEALTH
AND SAFETY MANUALS; TARGET LISTS FOR NEW STORES AND INFORMATION RELATING TO
POTENTIAL NEW STORE LOCATIONS; PRICE INFORMATION AND COST INFORMATION;
ADMINISTRATIVE TECHNIQUES OR DOCUMENTS OR INFORMATION THAT IS DESIGNATED BY THE
COMPANY AS