VOTING SECURITIES ISSUED OR PURCHASED
UNDER ANY EMPLOYEE BENEFIT PLAN OF THE COMPANY OR ITS SUBSIDIARIES;
OR
II.
A PLAN OF REORGANIZATION, MERGER, CONSOLIDATION, SALE OF ALL OR
SUBSTANTIALLY ALL OF THE ASSETS OF THE COMPANY OR SIMILAR TRANSACTION OCCURS OR
IS EFFECTUATED IN WHICH THE COMPANY IS NOT THE RESULTING OR SURVIVING ENTITY;
PROVIDED, HOWEVER, THAT SUCH AN EVENT LISTED ABOVE WILL BE DEEMED TO HAVE
5
OCCURRED OR TO HAVE BEEN EFFECTUATED ONLY UPON RECEIPT OF ALL REQUIRED
REGULATORY APPROVALS NOT INCLUDING THE LAPSE OF ANY REQUIRED WAITING PERIODS; OR
III.
THE BOARD DETERMINES IN ITS SOLE DISCRETION THAT A CHANGE IN
CONTROL HAS OCCURRED.
b.
Benefits Upon Change in Control.
I.
SEVERANCE BENEFITS.
IF A CHANGE OF CONTROL OCCURS WITHIN THE
FIRST THREE (3) YEARS OF EXECUTIVE'S EMPLOYMENT PURSUANT TO THIS AGREEMENT, AND
EXECUTIVE NO LONGER REPORTS TO LEE BARBA OR THE THEN CURRENT CHIEF EXECUTIVE
OFFICER OF THE COMPANY AS A RESULT OF THE CHANGE OF CONTROL, EXECUTIVE SHALL
HAVE THE RIGHT TO RESIGN WITHIN THIRTY (30) DAYS FOLLOWING THE CHANGE OF CONTROL
AND BE ENTITLED TO RECEIVE A CASH SEVERANCE BENEFIT IN AN AMOUNT EQUAL TO SIX
(6) MONTH'S BASE SALARY (BASED ON EXECUTIVE'S ANNUAL SALARY ON THE DATE OF THE
CHANGE OF CONTROL), LESS APPLICABLE TAXES.
SUCH AMOUNT SHALL BE PAID IN
BI-WEEKLY INSTALLMENTS IN ACCORDANCE WITH THE COMPANY'S NORMAL PAYROLL PRACTICES
AND SCHEDULE.
PROVIDED HOWEVER, THE COMPANY SHALL HAVE NO OBLIGATION TO PROVIDE
EXECUTIVE WITH ANY SEVERANCE COMPENSATION UNDER THIS SECTION 6 IF EXECUTIVE IS
IN BREACH OR VIOLATION OF ANY OF THE COVENANTS CONTAINED IN SECTIONS 7, 8, 9, 10
OR 12, DURING THE TIME PERIOD IN WHICH THE COMPANY IS MAKING THE SEVERANCE
PAYMENTS.
c.
No Mitigation or Offset.
Executive shall not be required to
mitigate the amount of any payment provided for in this Section 6 of this
Agreement by seeking other employment or otherwise. The Company shall not be
entitled to set off or reduce any severance payments owed to Executive under
this Section 6 by the amount of earnings or benefits received by Executive in
future employment.
7.
NONDISCLOSURE.
DURING THE EMPLOYMENT PERIOD, THE COMPANY AGREES
AND PROMISES TO PROVIDE, AND EXECUTIVE WILL ACQUIRE, KNOWLEDGE WITH RESPECT TO
THE COMPANY'S BUSINESS OPERATIONS, INCLUDING, BY WAY OF ILLUSTRATION, THE
COMPANY'S WORK PRODUCT (AS DEFINED BELOW), TRADE SECRETS, PROCESSES,
METHODOLOGIES AND METHODS FOR ANALYZING AND INVESTING IN THE STOCK MARKET,
SOFTWARE, DATABASES, AND OTHER TECHNICAL INFORMATION, BUSINESS INFORMATION,
CUSTOMER LISTS AND INFORMATION, CUSTOMER PREFERENCES, PROMOTIONAL AND MARKETING
MATERIALS, MARKETING PLANS AND STRATEGIES, BUSINESS PLANNING, FINANCIAL, AND
COSTING INFORMATION RELATED THERETO, REGARDLESS OF THE FORM OR MEDIA CONTAINING
SUCH INFORMATION, AND CONFIDENTIAL INFORMATION RELATING TO THE COMPANY'S
POLICIES AND EMPLOYEES (ALL OF SUCH INFORMATION HEREIN REFERRED TO AS THE
"CONFIDENTIAL INFORMATION").
THE PROTECTION OF THE CONFIDENTIAL INFORMATION
AGAINST UNAUTHORIZED DISCLOSURE OR USE IS OF CRITICAL IMPORTANCE TO THE
COMPANY.
EXECUTIVE AGREES THAT EXECUTIVE WILL NOT, DURING HER EMPLOYMENT,
DIVULGE TO ANY PERSON, DIRECTLY OR INDIRECTLY, EXCEPT TO THE COMPANY OR