to such transaction);
(3)
an acquisition by any person, entity or
group within the meaning of Section 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), or any comparable successor
provisions (excluding any employee benefit plan, or related trust, sponsored or
maintained by the Company or a subsidiary or other controlled Subsidiary of the
Company) of the beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act, or comparable successor rule) of securities
of the Company representing at least fifty percent (50%) of the combined voting
power entitled to vote in the election of directors; or
3
(4)
the individuals who, as of the date of this
Agreement, are members of the Board (the "Incumbent Board"), cease for any
reason to constitute at least fifty percent (50%) of the Board.
If the
election, or nomination for election by the Company's stockholders, of any new
director was approved by a vote of at least fifty percent (50%) of the Incumbent
Board, such new director shall be considered as a member of the Incumbent Board.
Notwithstanding the foregoing, a public offering (including the initial or any
subsequent public offering) of the common stock of the Company shall not be
considered a "Change of Control."
2.3
REIMBURSEMENT FROM THE COMPANY FOR ALL
REASONABLE AND CUSTOMARY EXPENSES INCURRED BY YOU IN PERFORMING SERVICES UNDER
THIS AGREEMENT, INCLUDING TRAVEL EXPENSES AND OTHER OUT-OF-POCKET EXPENSES, IN
ACCORDANCE WITH YOUR EXPENSE ACCOUNT AND THE COMPANY'S REIMBURSEMENT POLICIES
AND PROVIDED THAT YOU SHALL SUBMIT TO THE COMPANY REASONABLE DOCUMENTATION WITH
RESPECT TO SUCH EXPENSES.
3.
TERMINATION OF EMPLOYMENT
3.1
EVENTS OF TERMINATION
Your employment with the Company may be terminated prior to the expiration of
the Initial Term or extended term set forth in Section 1.1 hereof as follows:
(A)
WITH CAUSE.
YOUR EMPLOYMENT WITH THE
COMPANY MAY BE TERMINATED AT ANY TIME FOR "CAUSE."
AS USED IN THIS AGREEMENT,
THE TERM "CAUSE" SHALL MEAN (I) YOUR WILLFUL MISCONDUCT OR WILLFUL FAILURE TO
FULFILL AND PERFORM YOUR STATED DUTIES, INCLUDING THE OBLIGATIONS STATED HEREIN,
WHICH MISCONDUCT OR FAILURE, IF CURABLE, IS NOT FULLY CURED TO THE REASONABLE
SATISFACTION OF THE BOARD WITHIN THIRTY (30) DAYS AFTER WRITTEN NOTICE THEREOF,
(II) ANY MATERIAL BREACH BY YOU OF ANY PROVISION OF THIS AGREEMENT, WHICH, IF
CURABLE, IS NOT FULLY CURED TO THE REASONABLE SATISFACTION OF THE BOARD WITHIN
THIRTY (30) DAYS AFTER WRITTEN NOTICE THEREOF, (III) A REFUSAL TO RELOCATE IN
ACCORDANCE WITH THE BOARD'S DECISION AS CONTEMPLATED BY SECTION 3.5 OR (IV) YOUR
COMMITTING AN ACT OF THEFT, FRAUD, DISHONESTY, EMBEZZLEMENT WITH REGARD TO THE
COMPANY OR YOUR CONVICTION OF A FELONY.
FOR PURPOSES HEREOF, NO ACT, OR FAILURE
TO ACT, ON YOUR PART SHALL BE DEEMED "WILLFUL" UNLESS DONE, OR OMITTED TO BE
DONE, BY
4
YOU NOT IN GOOD FAITH AND WITHOUT REASONABLE BELIEF THAT YOUR ACT, OR FAILURE TO
ACT, WAS IN THE BEST INTEREST OF THE COMPANY.
(B)
WITHOUT CAUSE; GOOD REASON.
YOUR EMPLOYMENT