OF SUCH TRANSACTION OWNS THE COMPANY OR SUBSTANTIALLY ALL OF
THE COMPANY'S ASSETS EITHER DIRECTLY OR THROUGH ONE OR MORE SUBSIDIARIES) (SUCH
RESULTING OR ACQUIRING CORPORATION IS REFERRED TO HEREIN AS THE "ACQUIRING
CORPORATION") IN SUBSTANTIALLY THE SAME PROPORTIONS AS THEIR OWNERSHIP,
IMMEDIATELY PRIOR TO SUCH BUSINESS COMBINATION, OF THE OUTSTANDING COMPANY
COMMON STOCK AND OUTSTANDING COMPANY VOTING SECURITIES, RESPECTIVELY; AND
(II) NO PERSON (EXCLUDING THE ACQUIRING CORPORATION, ANY EMPLOYEE BENEFIT PLAN
(OR RELATED TRUST) MAINTAINED OR SPONSORED BY THE COMPANY OR BY THE ACQUIRING
CORPORATION OR ANY EXEMPT PERSON) WHICH HAS EITHER (X) FILED A FORM 13D IN
RESPECT OF ITS HOLDINGS WITH THE SEC, OR (Y) IN THE REASONABLE OPINION OF THE
COMPANY, SUCH PERSON SHOULD HAVE FILED A FORM 13D WITH THE SEC IN RESPECT OF ITS
HOLDINGS AND ITS INTENTIONS, BENEFICIALLY OWNS, DIRECTLY OR INDIRECTLY, 30% OR
MORE OF THE THEN OUTSTANDING SHARES OF COMMON STOCK OF THE ACQUIRING
CORPORATION, OR OF THE COMBINED VOTING POWER OF THE THEN-OUTSTANDING SECURITIES
OF SUCH CORPORATION ENTITLED TO VOTE GENERALLY IN THE ELECTION OF DIRECTORS
(EXCEPT TO THE EXTENT THAT SUCH OWNERSHIP EXISTED PRIOR TO THE BUSINESS
COMBINATION); OR
D)
APPROVAL BY THE STOCKHOLDERS OF THE
COMPANY OF A COMPLETE LIQUIDATION OR DISSOLUTION OF THE COMPANY (AS
DISTINGUISHED FROM A FILING MADE BY THE COMPANY UNDER CHAPTER 11 OF THE FEDERAL
BANKRUPTCY LAWS).
1.2
"CHANGE IN CONTROL DATE" MEANS THE FIRST DATE DURING
THE TERM (AS DEFINED IN SECTION 2) ON WHICH A CHANGE IN CONTROL OCCURS.
ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, IF (A) A CHANGE IN
CONTROL OCCURS, (B)
THE EXECUTIVE'S EMPLOYMENT WITH THE COMPANY IS TERMINATED
PRIOR TO THE DATE ON WHICH THE CHANGE IN CONTROL OCCURS, AND (C) IT IS
REASONABLY DEMONSTRATED BY THE EXECUTIVE THAT SUCH TERMINATION OF EMPLOYMENT
(I) WAS AT THE REQUEST OF A THIRD PARTY WHO HAS TAKEN STEPS REASONABLY
CALCULATED TO EFFECT A CHANGE IN CONTROL OR (II) OTHERWISE AROSE IN CONNECTION
WITH
2
OR IN ANTICIPATION OF A CHANGE IN CONTROL, THEN FOR ALL PURPOSES OF THIS
AGREEMENT THE "CHANGE IN CONTROL DATE" SHALL MEAN THE DATE IMMEDIATELY PRIOR TO
THE DATE OF SUCH TERMINATION OF EMPLOYMENT.
1.3
"CAUSE" MEANS:
A)
THE EXECUTIVE'S ABJECT FAILURE TO WORK
COOPERATIVELY WITH THE COMPANY'S OTHER OFFICERS AND SENIOR EMPLOYEES, AS
DETERMINED IN GOOD FAITH BY THE BOARD OF DIRECTORS, FOLLOWING REASONABLE NOTICE
AND OPPORTUNITY TO CURE;
B)
THE EXECUTIVE'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT IN PERFORMING ANY ACTION, OR NOT PERFORMING ANY ACTION, THAT
HAS HAD, OR COULD HAVE, ALONE OR IN THE AGGREGATE, A MATERIAL NEGATIVE IMPACT ON
THE COMPANY;
C)
THE EXECUTIVE'S THEFT, DISHONESTY,
WILLFUL MISCONDUCT, BREACH OF FIDUCIARY DUTY FOR PERSONAL PROFIT, OR
FALSIFICATION OF ANY COMPANY DOCUMENTS OR RECORDS;
D)
THE EXECUTIVE'S UNAUTHORIZED USE,
MISAPPROPRIATION, DESTRUCTION OR DIVERSION OF ANY MATERIAL ASSET OR CORPORATE
OPPORTUNITY OF THE COMPANY (INCLUDING, WITHOUT LIMITATION, THE EXECUTIVE'S
IMPROPER USE OR DISCLOSURE OF THE COMPANY'S CONFIDENTIAL OR PROPRIETARY
INFORMATION OR HIS FAILURE TO ABIDE BY COMPANY POLICIES RELATING TO
CONFIDENTIALITY);