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.
13.
RELATION TO OTHER BENEFITS.
ANY ECONOMIC OR OTHER BENEFIT TO THE
OPTIONEE UNDER THIS AGREEMENT SHALL NOT BE TAKEN INTO ACCOUNT IN DETERMINING ANY
BENEFITS TO WHICH THE 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 OR
NONEMPLOYEE DIRECTORS OF THE COMPANY OR ANY SUBSIDIARY.
14.
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.
15.
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
5
TO BE SEPARABLE FROM THE OTHER PROVISIONS HEREOF, AND THE REMAINING PROVISIONS
HEREOF SHALL CONTINUE TO BE VALID AND FULLY ENFORCEABLE.
16.
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.
17.
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 THE OPTIONEE, AND THE SUCCESSORS AND
ASSIGNS OF THE COMPANY.
18.
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.
19.
PRIOR AGREEMENT.
AS OF THE EFFECTIVE DATE, THIS AGREEMENT
SUPERSEDES ANY AND ALL PRIOR AND/OR CONTEMPORANEOUS AGREEMENTS, EITHER ORAL OR
IN WRITING, BETWEEN THE PARTIES HERETO, OR BETWEEN EITHER OR BOTH OF THE PARTIES
HERETO AND THE COMPANY, WITH RESPECT TO THE SUBJECT MATTER HEREOF.
EACH PARTY
TO THIS AGREEMENT ACKNOWLEDGES