THE SAME
BASIS AS OTHER NON-MANAGEMENT DIRECTORS.
4.
OTHER ACTIVITIES.
THE COMPANY EXPLICITLY ACKNOWLEDGES AND AGREES
THAT, DURING THE TERM,
KIRKLAND AND ITS OFFICERS AND EMPLOYEES, INCLUDING
KIRSCHBAUM, WILL ALSO BE ENGAGED IN A VARIETY OF OTHER SUBSTANTIAL BUSINESS
ACTIVITIES THAT DO NOT RELATE TO THE BUSINESS OF THE COMPANY.
5.
SUCCESSORS AND ASSIGNS.
NEITHER THIS AGREEMENT NOR ANY RIGHT OR
INTEREST UNDER IT SHALL BE ASSIGNABLE BY EITHER OF KIRKLAND OR THE COMPANY
WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER; PROVIDED, HOWEVER, THAT KIRKLAND
MAY ASSIGN ITS RIGHTS AND INTERESTS HEREUNDER TO ITS PARENT OR ANY SUBSIDIARY
ENTITY WITHOUT SUCH PRIOR WRITTEN CONSENT FROM THE COMPANY; AND PROVIDED,
FURTHER, THAT THE COMPANY SHALL BE OBLIGATED TO CAUSE THE ASSIGNMENT OF THIS
AGREEMENT PURSUANT TO A CHANGE OF CONTROL, AS SET FORTH IN SECTION 6 BELOW.
THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE SUCCESSORS
AND PERMITTED ASSIGNS OF EACH PARTY.
6.
CHANGE OF CONTROL.
UPON A CHANGE OF CONTROL OF THE COMPANY (AS
DEFINED BELOW), THE COMPANY SHALL BE OBLIGATED TO CAUSE ANY SURVIVING OR
SUCCESSOR ENTITY TO ASSUME, BE RESPONSIBLE FOR AND HONOR SECTIONS 2 AND 3(B)(II)
OF THIS AGREEMENT.
FOR PURPOSES OF THIS AGREEMENT, A "CHANGE OF CONTROL" MEANS
(A) THE ACQUISITION, DIRECTLY OR INDIRECTLY, BY ANY UNAFFILIATED PERSON, ENTITY
OR GROUP (A "THIRD PARTY") OF BENEFICIAL OWNERSHIP OF 50% OR GREATER OF THE
COMBINED VOTING POWER OF THE COMPANY'S THEN OUTSTANDING VOTING SECURITIES
ENTITLED TO VOTE GENERALLY IN THE ELECTION OF DIRECTORS; OR (B) CONSUMMATION OF
(I) A REORGANIZATION, MERGER OR CONSOLIDATION OF THE COMPANY, OR (II) A
LIQUIDATION OR DISSOLUTION OF THE COMPANY OR (III) A SALE OF ALL OR
SUBSTANTIALLY ALL OF THE ASSETS OF THE COMPANY (WHETHER SUCH ASSETS ARE HELD
DIRECTLY OR INDIRECTLY) TO A THIRD PARTY; OR (C) THE INDIVIDUALS WHO AS OF THE
DATE OF THIS AGREEMENT ARE MEMBERS OF THE BOARD OF DIRECTORS (TOGETHER WITH ANY
DIRECTORS ELECTED OR NOMINATED BY A MAJORITY OF SUCH INDIVIDUALS) CEASE FOR ANY
REASON TO CONSTITUTE AT LEAST A MAJORITY OF THE MEMBERS OF THE BOARD OF
DIRECTORS; EXCEPT THAT ANY EVENT OR TRANSACTION WHICH WOULD BE A "CHANGE OF
CONTROL" UNDER CLAUSE (A) OR (B)(I) OR (III) OF THIS DEFINITION, SHALL NOT BE A
CHANGE OF CONTROL IF PERSONS WHO WERE THE EQUITY HOLDERS OF THE COMPANY
IMMEDIATELY PRIOR TO SUCH EVENT OR TRANSACTION (OTHER THAN THE ACQUIROR IN THE
CASE OF A REORGANIZATION, MERGER OR CONSOLIDATION), IMMEDIATELY THEREAFTER,
BENEFICIALLY OWN MORE THAN 50% OF THE COMBINED VOTING POWER OF THE COMPANY'S OR
THE REORGANIZED, MERGED OR CONSOLIDATED COMPANY'S THEN OUTSTANDING VOTING
SECURITIES ENTITLED TO VOTE GENERALLY IN THE ELECTION OF DIRECTORS.
7.
CONFIDENTIAL INFORMATION.
KIRKLAND RECOGNIZES AND ACKNOWLEDGES
THAT IT HAS HAD, AND WILL HAVE, DURING THE TERM, ACCESS TO CERTAIN CONFIDENTIAL
INFORMATION (AS DEFINED BELOW) OF THE COMPANY AND THAT SUCH INFORMATION
CONSTITUTES VALUABLE, SPECIAL AND UNIQUE PROPERTY OF THE COMPANY.
KIRKLAND
AGREES THAT IT WILL NOT, DURING OR AFTER THE TERM, DISCLOSE ANY