Common use of Change of Control of the Company Clause in Contracts

Change of Control of the Company. If, prior to March 6, 2000, there is a Company Change of Control and on the effective date of such Company Change of Control (the "Effective Date") the Executive is a regular full-time employee of the Company (and has been so employed continuously since the date of this agreement), then the Company shall pay to the Executive within twenty (20) days after the Effective Date an amount equal to the product of (a) the number of Appreciation Units set forth in Paragraph 1 multiplied by (b) the positive difference, if any, resulting from the subtraction of (I) $3.0625 from (II) the lesser of (i) the Average Price or (ii) $9.0625. If there is no positive difference resulting from the subtraction referred to in the preceding sentence, then no payment shall be due or made to the Executive under this Paragraph 5. For purposes of this Paragraph 5, "Average Price" means the arithmetic average of the closing prices of the Common Stock of Holdings on the American Stock Exchange on the twenty (20) most recent trading days prior to the Effective Date on which the Common Stock of Holdings was traded on such Exchange; provided, that if there are fewer than twenty (20) trading days between the date of the first public announcement of a proposed Company Change of Control (the "Announcement Date") and the Effective Date, then only the trading days following the Announcement Date shall be taken into account for purposes of determining the Average Price; provided, further, that if the Effective Date occurs on or before the Announcement Date, then the Average Price shall be the fair market value of the consideration received or to be received by Holdings or the stockholders of Holdings, as the case may be, in connection with or by reason of the transaction resulting or which will result in the Company Change of Control, in either case determined on a per share basis with respect to the shares of Common Stock of Holdings then outstanding (including, to the extent applicable, shares of Common Stock issuable upon the exercise of outstanding options to purchase shares of the Common Stock of Holdings); and provided further, that if the company Change of Control involves an issuer tender offer or other "going private" transaction, then the Average Price shall be the amount per outstanding share of Common Stock of Holdings paid or to be paid by the purchaser in such issuer tender offer or other "going private" transaction. If the Common Stock of Holdings is not listed on the American Stock Exchange during the relevant period prior to the Effective Date, then such closing prices shall be determined by reference to the principal market or exchange in or on which the Common Stock of Holdings is traded during the relevant period. For purposes of this Paragraph 5, "Company Change of Control" means the happening of any of the following events:

Change of Control of the Company. IfNotwithstanding anything to the contrary in this Agreement, prior to March 6, 2000, there is if the Board of Directors of the Company and the holders of a majority of the Company's outstanding shares of Common Stock approve a sale of the Company that constitutes a Change of Control and on the effective date of such Company Change of Control (the "Effective Date") the Executive is a regular full-time employee of the Company (and has been so employed continuously since the date of this agreementas defined below), then the Company shall pay to will give the Executive Stockholder thirty (30) days' notice of the proposed transaction. The Company will, at the Stockholder's request given by him or her within twenty five (205) days after of the Effective Date an amount equal to the product receipt of (a) the number of Appreciation Units set forth in Paragraph 1 multiplied by (b) the positive difference, if any, resulting from the subtraction of (I) $3.0625 from (II) the lesser of (i) the Average Price or (ii) $9.0625. If there is no positive difference resulting from the subtraction referred to in notice required under the preceding sentence, then no payment shall cause the buyer also to offer to purchase all, but not less than all, of the Shares held by the Stockholder and, upon the request of the Company within such 5-day period, the Stockholder shall, upon the request of the Company, be due obligated to sell his or made her Shares to the Executive under this Paragraph 5buyer, for the same price and on the same terms and conditions as the buyer's purchase of the shares of Common Stock from the majority shareholders of the Company. The Stockholder further agrees to take all necessary and desirable actions in connection with the consummation of a Change of Control of the Company. For purposes of this Paragraph 5Agreement, a "Average Price" means the arithmetic average Change of Control of the closing prices Company" shall occur: (i) upon the vote of the Common Stock shareholders of Holdings on the American Stock Exchange on Company approving a merger or consolidation in which the twenty (20) most recent trading days Company's shareholders immediately prior to the Effective Date effective time of the merger or consolidation will beneficially own immediately after the effective time of the merger or consolidation securities of the surviving or new corporation having less than 50% of the "voting power" of the surviving or new corporation, including "voting power" exercisable on which the Common Stock of Holdings was traded on such Exchangea contingent or deferred basis as well as immediately exercisable "voting power"; provided, however, that if there are fewer than twenty no such merger or consolidation shall constitute a "change of control" in the event that following such transaction the Taylor Family (20as defined below) trading days between the date owns, directly or indirectly, 30% xx more of the first public announcement combined "voting power" of the surviving or new corporation's outstanding securities, excluding "voting power" exercisable on a contingent or deferred basis. (ii) upon the consummation of a proposed sale, lease, exchange or other transfer or disposition by the Company Change of Control (all or substantially all of the "Announcement Date") and assets of the Effective DateCompany on a consolidated basis, then only the trading days following the Announcement Date shall be taken into account for purposes of determining the Average Price; provided, furtherhowever, that if the Effective Date occurs on mortgage, pledge or before the Announcement Date, then the Average Price shall be the fair market value hypothecation of all or substantially all of the consideration received or to be received by Holdings or assets of the stockholders of Holdings, as the case may beCompany on a consolidated basis, in connection with or by reason a bona fide financing shall not constitute a Sale of the transaction resulting Company; or (iii) when any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934) is or which will result becomes the "beneficial owner" (as defined in Rule 13d-3 of the Securities Exchange Act as in effect on date hereof, but excluding (a) any Company Change sponsored employee benefit plan and (b) any member of Controlthe Taylor Family), in either case determined directly or indirectly, of shares of Company stoxx xxxh that the Taylor Family owxx xxxs than 30% of the combined "voting power" of the Company's then outstanding securities, excluding "voting power" exercisable on a per share basis with respect to the shares of Common Stock of Holdings then outstanding (including, to the extent applicable, shares of Common Stock issuable upon the exercise of outstanding options to purchase shares of the Common Stock of Holdings); and provided further, that if the company Change of Control involves an issuer tender offer contingent or other "going private" transaction, then the Average Price shall be the amount per outstanding share of Common Stock of Holdings paid or to be paid by the purchaser in such issuer tender offer or other "going private" transaction. If the Common Stock of Holdings is not listed on the American Stock Exchange during the relevant period prior to the Effective Date, then such closing prices shall be determined by reference to the principal market or exchange in or on which the Common Stock of Holdings is traded during the relevant perioddeferred basis. For purposes of this Paragraph 5Agreement, "Company Change the Taylor Family means (i) Sidney J. Taylor and Iris Taylor, (ii) a desxxxxxxt of Control" means the happening Sidney J. Tayxxx xxx Xxxx Xxxlor, (xxx) xxx xstate, trust, guardiansxxx xx xxxxxxxxxship xxx xxx xxxmary benefit of any of individual described in (i) or (ii) above, or (iv) a proprietorship, partnership, limited liability company, or corporation controlled by and substantially all the following events:interest in which are owned, directly or indirectly, by one or more individuals or entities described in (i), (ii), or (iii) above.