ANY OF ITS SUBSIDIARIES
(THE "CURE PERIOD");
(II)
THE WILLFUL OR INTENTIONAL ENGAGING BY EXECUTIVE IN CONDUCT THAT
CAUSES MATERIAL AND DEMONSTRABLE INJURY, MONETARILY OR OTHERWISE, TO THE
COMPANY, THE INVESTORS OR THEIR RESPECTIVE AFFILIATES;
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(III)
THE COMMISSION BY EXECUTIVE OF A CRIME CONSTITUTING (A) A FELONY
UNDER THE LAWS OF THE UNITED STATES OR ANY STATE THEREOF OR (B) A MISDEMEANOR
INVOLVING MORAL TURPITUDE; OR
(IV)
A MATERIAL BREACH OF BY EXECUTIVE OF THIS AGREEMENT OR OTHER
AGREEMENTS, INCLUDING, WITHOUT LIMITATION, ENGAGING IN ANY ACTION IN BREACH OF
RESTRICTIVE COVENANTS, HEREIN OR THEREIN, THAT CONTINUES BEYOND THE CURE PERIOD
(TO THE EXTENT THAT, IN THE BOARD'S REASONABLE JUDGMENT, SUCH BREACH CAN BE
CURED).
d.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
e.
"Change in Control" shall mean (i) the sale (in one transaction
or a series of transactions) of all or substantially all of the assets of the
Company to an Unaffiliated Person (as defined below); (ii) a sale (in one
transaction or a series of transactions) resulting in more than 50% of the
voting stock of the Company being held by an Unaffiliated Person; (iii) a
merger, consolidation, recapitalization or reorganization of the Company with or
into an Unaffiliated Person; if and only if any such event listed in clauses (i)
through (iii) above results in the inability of the Investors, or any member or
members of the Investors, to designate or elect a majority of the Board (or the
board of directors of the resulting entity or its parent company).
For purposes
of this definition, the term "Unaffiliated Person" means any Person or "group"
(as such term is defined in Sections 13(d)(3) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended) who is not (x) an Investor or any member of
the Investors, (y) an Affiliate of any Investor or any member of any Investor,
or (z) an entity in which any Investor, or any member of any Investor holds,
directly or indirectly, a majority of the economic interests in such entity.
F.
"GOOD REASON" SHALL MEAN "GOOD REASON" AS SUCH TERM IS DEFINED
IN THE EMPLOYMENT AGREEMENT, OR IF THERE IS NO SUCH EMPLOYMENT AGREEMENT, "GOOD
REASON" SHALL MEAN:
(I)
A REDUCTION IN EXECUTIVE'S BASE SALARY OR ANNUAL INCENTIVE
COMPENSATION (OTHER THAN A GENERAL REDUCTION IN BASE SALARY THAT AFFECTS ALL
MEMBERS OF SENIOR MANAGEMENT IN SUBSTANTIALLY THE SAME PROPORTIONS, PROVIDED
THAT EXECUTIVE'S BASE SALARY IS NOT REDUCED BY MORE THAN 10%);
(II)
A SUBSTANTIAL REDUCTION OR ADVERSE CHANGE IN EXECUTIVE'S DUTIES
AND RESPONSIBILITIES;
(III)
A TRANSFER OF EXECUTIVE'S PRIMARY WORKPLACE BY MORE THAN FIFTY
MILES FROM THE CURRENT WORKPLACE;
(IV)
FAILURE OF THE COMPANY OR THE EMPLOYER TO COMPLY WITH AND SATISFY
SECTION 7(D) OF THIS AGREEMENT; OR
(V)
FAILURE OF THE COMPANY, THE EMPLOYER OR ANY SUCCESSOR TO MAINTAIN
THE AGREEMENT FOR A TWO YEAR PERIOD FOLLOWING A CHANGE IN CONTROL.
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AND PROVIDED, FURTHER, THAT "GOOD REASON" SHALL CEASE TO EXIST FOR ANY SUCH