Common use of Following a Public Offering Clause in Contracts

Following a Public Offering. Subject to Section 5.02(c) below, a --------------------------- "Change of Control" shall be deemed to have occurred if, following a Public Offering, (i) any person including a group, but excluding any stockholder of the Employer who immediately prior to the Public Offering beneficially owned 12% or more of the Employer's outstanding shares, becomes the beneficial owner of shares of the Employer having more than 50% of the total number of votes that may be cast for the election of directors of the Employer, (ii) any person including a group, other than the Employee or any group of which the Employee is a party, increases its beneficial ownership of shares of the Employer beyond such person's ownership immediately after the Public Offering by a number of shares equal to or greater than 33% of the total number of votes that may be cast for the election of directors; (iii) the individuals who serve on the Board of Directors of the Employer as of the effective date hereof (the "Incumbent Directors") cease for any reason to constitute at least a majority of the Board of Directors of the Employer; provided, however, any person who becomes a director subsequent to the effective date hereof, whose election or nomination for election was approved by a vote of at least a majority of the directors then constituting the Incumbent Directors, shall for purposes of this clause (iii) be considered an Incumbent Director; (iv) the consummation of a merger or consolidation of the Employer in which the stockholders of the Employer immediately prior to such merger or consolidation, would not, immediately after the merger or consolidation, beneficially own, directly or indirectly, shares representing in the aggregate more than 50% of the combined voting power of the voting securities of the corporation issuing cash or securities in the merger or consolidation (or of its ultimate parent corporation, if any); or (v) there is consummated an agreement for the sale or disposition by the Employer of all or substantially all of the Employer's assets (on a consolidated basis), other than a sale or disposition by the Employer of all or substantially all of the Employer's assets to an entity, at least 50% of the combined voting power of the voting securities of which are owned by persons in substantially the same proportion as their ownership of the Employer immediately prior to such sale.

Following a Public Offering. Subject to Section 5.02(c) below, a --------------------------- "Change of Control" shall be deemed to have occurred if, following a Public Offering, (i) any person including a group, but excluding any stockholder of the Employer who immediately prior to the Public Offering beneficially owned 12% or more of the Employer's outstanding shares, becomes the beneficial owner of shares of the Employer having more than 50% of the total number of votes that may be cast for the election of directors of the Employer, (ii) any person including a group, other than the Employee Employee, or any group of which the Employee is a party, increases its beneficial ownership of shares of the Employer beyond such person's ownership immediately after the Public Offering by a number of shares equal to or greater than 33% of the total number of votes that may be cast for the election of directors; (iii) the individuals who serve on the Board of Directors of the Employer as of the effective date hereof (the "Incumbent Directors") cease for any reason to constitute at least a majority of the Board of Directors of the Employer; provided, however, any person who becomes a director subsequent to the effective date hereof, whose election or nomination for election was approved by a vote of at least a majority of the directors then constituting the Incumbent Directors, shall for purposes of this clause (iii) be considered an Incumbent Director; , (iv) the consummation of a merger or consolidation of the Employer in which the stockholders of the Employer immediately prior to such merger or consolidation, would not, immediately after the merger or consolidation, beneficially own, directly or indirectly, shares representing in the aggregate more than 50% of the combined voting power of the voting securities of the corporation issuing cash or securities in the merger or consolidation (or of its ultimate parent corporation, if any); or (v) there is consummated an agreement for the sale or disposition by the Employer of all or substantially all of the Employer's assets (on a consolidated basis), other than a sale or disposition by the Employer of all or substantially all of the Employer's assets to an entity, at least 50% of the combined voting power of the voting securities of which are owned by persons in substantially the same proportion as their ownership of the Employer immediately prior to such sale.