Common use of Inducement Payments Clause in Contracts

Inducement Payments. A. If, within two (2) years after a Change in Control, the Associate’s “Circumstances of Employment” (as hereinafter defined) shall have changed, the Associate may terminate his employment by written notice to the Corporation given no later than ninety (90) days following such change in the Associate’s Circumstances of Employment. In the event of such termination by the Associate of his employment or if, within two (2) years after a Change in Control, the Corporation shall terminate the Associate’s employment other than for “Cause” (as hereinafter defined), the Corporation shall pay to the Associate, subject to the provisions of paragraph F of this Article FIRST and compliance by Associate with Article THIRD hereof, starting no earlier than on the fifth (5th) business day following the six (6) months’ anniversary of such termination (or death of Associate, if sooner), in cash, the “Special Severance Payment” (as hereinafter defined) as provided in Section E below. B. Change in Control shall be deemed to occur upon: (a) a change in ownership of the Corporation, which shall occur on the date that any one person, or more than one person acting as a “Group” (as defined under Section 409A of the Code (as defined hereunder)), other than Xxxxxxxx Xxxxxxxx or Xxxxxxxx Xxxxxxxxx or a member of the Xxxxxxxx or Gershwind families or any trust established principally for members of the Xxxxxxxx or Gershwind families or an executor, administrator or personal representative of an estate of a member of the Xxxxxxxx or Gershwind families and/or their respective affiliates, acquires ownership of stock of the Corporation that, together with stock held by such person or Group, constitutes more than 50% of the total fair market value or total voting power of the stock of the Corporation; provided, however, that, if any one person or more than one person acting as a Group, is considered to own more than 50% of the total fair market value or total voting power of the stock of the Corporation, the acquisition of additional stock by the same person or persons is not considered to cause a change in the ownership of the Corporation; (b) a change in the effective control of the Corporation, which shall occur on the date that (1) any one person, or more than one person acting as a Group, other than Xxxxxxxx Xxxxxxxx or Xxxxxxxx Xxxxxxxxx or a member of the Xxxxxxxx or Gershwind families or any trust established principally for members of the Xxxxxxxx or Gershwind families or an executor, administrator or personal representative of an estate of a member of the Xxxxxxxx or Gershwind families and/or their respective affiliates, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the Corporation possessing 50% or more of the total voting power of the stock of the Corporation; or (2) a majority of the members of the Board is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election; provided, however, that, if one person, or more than one person acting as a Group, is considered to effectively control the Corporation, the acquisition of additional control of the Corporation by the same person or persons is not considered a change in the effective control of the Corporation; or (c) a change in the ownership of a substantial portion of the Corporation’s assets, which shall occurs on the date that any one person, or more than one person acting as a Group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the Corporation that have a total Gross Fair Market Value (as defined hereunder) equal to or more than 80% of the total Gross Fair Market Value of all of the assets of the Corporation immediately prior to such acquisition or acquisitions; provided, however, that, a transfer of assets by the Corporation is not treated as a change in the ownership of such assets if the assets are transferred to (1) a shareholder of the Corporation (immediately before the asset transfer) in exchange for or with respect to its stock; (2) an entity, 50% or more of the total value or voting power of which is owned, directly or indirectly, by the

Inducement Payments. A. If, within two (2) years after a Change in Control, the Associate’s “Circumstances of Employment” (as hereinafter defined) shall have changed, the Associate may terminate his employment by written notice to the Corporation given no later than ninety (90) days following such change in the Associate’s Circumstances of Employment. In the event of such termination by the Associate of his employment or if, within two (2) years after a Change in Control, the Corporation shall terminate the Associate’s employment other than for “Cause” (as hereinafter defined), the Corporation shall pay to the Associate, subject to the provisions of paragraph F of this Article FIRST and compliance by Associate with Article THIRD hereof, starting no earlier than on the fifth (5th) business day following the six (6) months’ anniversary of such termination (or death of Associate, if sooner)FIRST, in cash, the “Special Severance Payment” (as hereinafter defined) as provided in Section E below. B. Change in Control shall be deemed to occur upon: (a) a change in ownership of the Corporation, which shall occur on the date that any one person, or more than one person acting as a “Group” (as defined under Section 409A of the Code (as defined hereunder)), other than Xxxxxxxx Xxxxxxxx or Xxxxxxxx Xxxxxxxxx or a member of the Xxxxxxxx or Gershwind families or any trust established principally for members of the Xxxxxxxx or Gershwind families or an executor, administrator or personal representative of an estate of a member of the Xxxxxxxx or Gershwind families and/or their respective affiliates, acquires ownership of stock of the Corporation that, together with stock held by such person or Group, constitutes more than 50% of the total fair market value or total voting power of the stock of the Corporation; provided, however, that, if any one person or more than one person acting as a Group, is considered to own more than 50% of the total fair market value or total voting power of the stock of the Corporation, the acquisition of additional stock by the same person or persons is not considered to cause a change in the ownership of the Corporation; (b) a change in the effective control of the Corporation, which shall occur on the date that (1) any one person, or more than one person acting as a Group, other than Xxxxxxxx Xxxxxxxx or Xxxxxxxx Xxxxxxxxx or a member of the Xxxxxxxx or Gershwind families or any trust established principally for members of the Xxxxxxxx or Gershwind families or an executor, administrator or personal representative of an estate of a member of the Xxxxxxxx or Gershwind families and/or their respective affiliates, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the Corporation possessing 50% or more of the total voting power of the stock of the Corporation; or (2) a majority of the members of the Board is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election; provided, however, that, if one person, or more than one person acting as a Group, is considered to effectively control the Corporation, the acquisition of additional control of the Corporation by the same person or persons is not considered a change in the effective control of the Corporation; or (c) a change in the ownership of a substantial portion of the Corporation’s assets, which shall occurs occur on the date that any one person, or more than one person acting as a Group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the Corporation that have a total Gross Fair Market Value (as defined hereunder) equal to or more than 80% of the total Gross Fair Market Value of all of the assets of the Corporation immediately prior to such acquisition or acquisitions; provided, however, that, a transfer of assets by the Corporation is not treated as a change in the ownership of such assets if the assets are transferred to (1) a shareholder of the Corporation (immediately before the asset transfer) in exchange for or with respect to its stock; (2) an entity, 50% or more of the total value or voting power of which is owned, directly or indirectly, by thethe Corporation; (3) a person, or more than one person acting as a Group, that owns, directly or indirectly, 50% or more of the total value or voting power of all the outstanding stock of the Corporation; or (4) an entity, at least 50% of the total value or voting power of which is owned, directly or indirectly, by a person described in Article FIRST B(c)(3).

Inducement Payments. A. Subject to the provisions of paragraph G of this Article FIRST, if a “Change in Control” (as hereinafter defined) shall occur, the Corporation shall pay to the Executive, in cash, the amount of $800,000, which amount shall be due and payable thirty (30) days after the occurrence of a Change in Control. B. If, within two five (25) years after a Change in Control, the AssociateExecutive’s “Circumstances of Employment” (as hereinafter defined) shall have changed, the Associate Executive may terminate his employment by written notice to the Corporation given no later than ninety (90) days following such change in the AssociateExecutive’s Circumstances of Employment. In the event of such termination by the Associate Executive of his employment or if, within two five (25) years after a Change in Control, the Corporation shall terminate the AssociateExecutive’s employment other than for “Cause” (as hereinafter defined), the Corporation shall pay to the AssociateExecutive, subject to the provisions of paragraph F G of this Article FIRST and compliance by Associate with Article THIRD hereofFIRST, starting no earlier than on the fifth (5th) business day following the six (6) months’ anniversary of the date of such termination (or death the date of AssociateExecutive’s death, if soonerearlier), in cash, the “Special Severance Payment” (as hereinafter defined) as provided in Section E below). B. C. A Change in Control shall be deemed to occur upon: (a) a change in ownership of the Corporation, which shall occur on the date that any one person, or more than one person acting as a “Group” (as defined under Section 409A of the Code (as defined hereunder)Code), other than Xxxxxxxx Xxxxxxxx or Xxxxxxxx Xxxxxxxxx or a member of the Xxxxxxxx or Gershwind families or any trust established principally for members of the Xxxxxxxx or Gershwind families or an executor, administrator or personal representative of an estate of a member of the Xxxxxxxx or Gershwind families and/or their respective affiliates, acquires ownership of stock of the Corporation that, together with stock held by such person or Group, constitutes more than 50% of the total fair market value or total voting power of the stock of the Corporation; provided, however, that, if any one person or more than one person acting as a Group, is considered to own more than 50% of the total fair market value or total voting power of the stock of the Corporation, the acquisition of additional stock by the same person or persons is not considered to cause a change in the ownership of the Corporation; (b) a change in the effective control of the Corporation, which shall occur on the date that (1) any one person, or more than one person acting as a Group, other than Xxxxxxxx Xxxxxxxx or Xxxxxxxx Xxxxxxxxx or a member of the Xxxxxxxx or Gershwind families or any trust established principally for members of the Xxxxxxxx or Gershwind families or an executor, administrator or personal representative of an estate of a member of the Xxxxxxxx or Gershwind families and/or familiesand/or their respective affiliates, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the Corporation possessing 50% or more of the total voting power of the stock of the Corporation; or (2) a majority of the members of the Board is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election; provided, however, that, if one person, or more than one person acting as a Group, is considered to effectively control the Corporation, the acquisition of additional control of the Corporation by the same person or persons is not considered a change in the effective control of the Corporation; or (c) a change in the ownership of a substantial portion of the Corporation’s assets, which shall occurs occur on the date that any one person, or more than one person acting as a Group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the Corporation that have a total Gross Fair Market Value (as defined hereunderbelow) equal to or more than 80% of the total Gross Fair Market Value of all of the assets of the Corporation immediately prior to such acquisition or acquisitions; provided, however, that, a transfer of assets by the Corporation is not treated as a change in the ownership of such assets if the assets are transferred to (1) a shareholder of the Corporation (immediately before the asset transfer) in exchange for or with respect to its stock; (2) an entity, 50% or more of the total value or voting power of which is owned, directly or indirectly, by thethe Corporation; (3) a person, or more than one person acting as a Group, that owns, directly or indirectly, 50% or more of the total value or voting power of all the outstanding stock of the Corporation; or (4) an entity, at least 50% of the total value or voting power of which is owned, directly or indirectly, by a person described in Article FIRST C.(c)(3).

Inducement Payments. A. Subject to the provisions of paragraph G of this Article FIRST, if a “Change in Control” (as hereinafter defined) shall occur, the Corporation shall pay to the Executive, in cash, the amount of $1,200,000, which amount shall be due and payable thirty (30) days after the occurrence of a Change in Control. B. If, within two five (25) years after a Change in Control, the AssociateExecutive’s “Circumstances of Employment” (as hereinafter defined) shall have changed, the Associate Executive may terminate his employment by written notice to the Corporation given no later than ninety (90) days following such change in the AssociateExecutive’s Circumstances of Employment. In the event of such termination by the Associate Executive of his employment or if, within two five (25) years after a Change in Control, the Corporation shall terminate the AssociateExecutive’s employment other than for “Cause” (as hereinafter defined), the Corporation shall pay to the AssociateExecutive, subject to the provisions of paragraph F G of this Article FIRST and compliance by Associate with Article THIRD hereofFIRST, starting no earlier than on the fifth (5th) business day following the six (6) months’ anniversary of the date of such termination (or death the date of AssociateExecutive’s death, if soonerearlier), in cash, the “Special Severance Payment” (as hereinafter defined) as provided in Section E below). B. C. A Change in Control shall be deemed to occur upon: (a) a change in ownership of the Corporation, which shall occur on the date that any one person, or more than one person acting as a “Group” (as defined under Section 409A of the Code (as defined hereunder)Regulations), other than Xxxxxxxx Xxxxxxxx or Xxxxxxxx Xxxxxxxxx or a member of the Xxxxxxxx or Gershwind families or any trust established principally for members of the Xxxxxxxx or Gershwind families or an executor, administrator or personal representative of an estate of a member of the Xxxxxxxx or Gershwind families and/or their respective affiliates, acquires ownership of stock of the Corporation that, together with stock held by such person or Group, constitutes more than 50% of the total fair market value or total voting power of the stock of the Corporation; provided, however, that, if any one person or more than one person acting as a Group, is considered to own more than 50% of the total fair market value or total voting power of the stock of the Corporation, the acquisition of additional stock by the same person or persons is not considered to cause a change in the ownership of the Corporation; (b) a change in the effective control of the Corporation, which shall occur on the date that (1) any one person, or more than one person acting as a Group, other than Xxxxxxxx Xxxxxxxx or Xxxxxxxx Xxxxxxxxx or a member of the Xxxxxxxx or Gershwind families or any trust established principally for members of the Xxxxxxxx or Gershwind families or an executor, administrator or personal representative of an estate of a member of the Xxxxxxxx or Gershwind families and/or familiesand/or their respective affiliates, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the Corporation possessing 50% or more of the total voting power of the stock of the Corporation; or (2) a majority of the members of the Board is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election; provided, however, that, if one person, or more than one person acting as a Group, is considered to effectively control the Corporation, the acquisition of additional control of the Corporation by the same person or persons is not considered a change in the effective control of the Corporation; or (c) a change in the ownership of a substantial portion of the Corporation’s assets, which shall occurs occur on the date that any one person, or more than one person acting as a Group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the Corporation that have a total Gross Fair Market Value (as defined hereunderbelow) equal to or more than 80% of the total Gross Fair Market Value of all of the assets of the Corporation immediately prior to such acquisition or acquisitions; provided, however, that, a transfer of assets by the Corporation is not treated as a change in the ownership of such assets if the assets are transferred to (1) a shareholder of the Corporation (immediately before the asset transfer) in exchange for or with respect to its stock; (2) an entity, 50% or more of the total value or voting power of which is owned, directly or indirectly, by thethe Corporation; (3) a person, or more than one person acting as a Group, that owns, directly or indirectly, 50% or more of the total value or voting power of all the outstanding stock of the Corporation; or (4) an entity, at least 50% of the total value or voting power of which is owned, directly or indirectly, by a person described in Article FIRST C.(c)(3).

Inducement Payments. A. Subject to the provisions of paragraph G of this Article FIRST, if a “Change in Control” (as hereinafter defined) shall occur, the Corporation shall pay to the Executive, in cash, the amount of $2,000,000, which amount shall be due and payable thirty (30) days after the occurrence of a Change in Control. B. If, within two five (25) years after a Change in Control, the AssociateExecutive’s “Circumstances of Employment” (as hereinafter defined) shall have changed, the Associate Executive may terminate his employment by written notice to the Corporation given no later than ninety (90) days following such change in the AssociateExecutive’s Circumstances of Employment. In the event of such termination by the Associate Executive of his employment or if, within two five (25) years after a Change in Control, the Corporation shall terminate the AssociateExecutive’s employment other than for “Cause” (as hereinafter defined), the Corporation shall pay to the AssociateExecutive, subject to the provisions of paragraph F G of this Article FIRST and compliance by Associate with Article THIRD hereofFIRST, starting no earlier than on the fifth (5th) business day following the six (6) months’ anniversary of the date of such termination (or death the date of AssociateExecutive’s death, if soonerearlier), in cash, the “Special Severance Payment” (as hereinafter defined) as provided in Section E below). B. C. A Change in Control shall be deemed to occur upon: (a) a change in ownership of the Corporation, which shall occur on the date that any one person, or more than one person acting as a “Group” (as defined under Section 409A of the Code (as defined hereunder)THE Regulations), other than Xxxxxxxx Xxxxxxxx or Xxxxxxxx Xxxxxxxxx or a member of the Xxxxxxxx or Gershwind families or any trust established principally for members of the Xxxxxxxx or Gershwind families or an executor, administrator or personal representative of an estate of a member of the Xxxxxxxx or Gershwind families and/or their respective affiliates, acquires ownership of stock of the Corporation that, together with stock held by such person or Group, constitutes more than 50% of the total fair market value or total voting power of the stock of the Corporation; provided, however, that, if any one person or more than one person acting as a Group, is considered to own more than 50% of the total fair market value or total voting power of the stock of the Corporation, the acquisition of additional stock by the same person or persons is not considered to cause a change in the ownership of the Corporation; (b) a change in the effective control of the Corporation, which shall occur on the date that (1) any one person, or more than one person acting as a Group, other than Xxxxxxxx Xxxxxxxx or Xxxxxxxx Xxxxxxxxx or a member of the Xxxxxxxx or Gershwind families or any trust established principally for members of the Xxxxxxxx or Gershwind families or an executor, administrator or personal representative of an estate of a member of the Xxxxxxxx or Gershwind families and/or their respective affiliates, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the Corporation possessing 50% or more of the total voting power of the stock of the Corporation; or (2) a majority of the members of the Board is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election; provided, however, that, if one person, or more than one person acting as a Group, is considered to effectively control the Corporation, the acquisition of additional control of the Corporation by the same person or persons is not considered a change in the effective control of the Corporation; or (c) a change in the ownership of a substantial portion of the Corporation’s assets, which shall occurs occur on the date that any one person, or more than one person acting as a Group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the Corporation that have a total Gross Fair Market Value (as defined hereunderbelow) equal to or more than 80% of the total Gross Fair Market Value of all of the assets of the Corporation immediately prior to such acquisition or acquisitions; provided, however, that, a transfer of assets by the Corporation is not treated as a change in the ownership of such assets if the assets are transferred to (1) a shareholder of the Corporation (immediately before the asset transfer) in exchange for or with respect to its stock; (2) an entity, 50% or more of the total value or voting power of which is owned, directly or indirectly, by thethe Corporation; (3) a person, or more than one person acting as a Group, that owns, directly or indirectly, 50% or more of the total value or voting power of all the outstanding stock of the Corporation; or (4) an entity, at least 50% of the total value or voting power of which is owned, directly or indirectly, by a person described in Article FIRST C.(c)(3).

Inducement Payments. A. Subject to the provisions of paragraph G of this Article FIRST, if a “Change in Control” (as hereinafter defined) shall occur, the Corporation shall pay to the Executive, in cash, the amount of $525,000, which amount shall be due and payable thirty (30) days after the occurrence of a Change in Control. B. If, within two five (25) years after a Change in Control, the AssociateExecutive’s “Circumstances of Employment” (as hereinafter defined) shall have changed, the Associate Executive may terminate his employment by written notice to the Corporation given no later than ninety (90) days following such change in the AssociateExecutive’s Circumstances of Employment. In the event of such termination by the Associate Executive of his employment or if, within two five (25) years after a Change in Control, the Corporation shall terminate the AssociateExecutive’s employment other than for “Cause” (as hereinafter defined), the Corporation shall pay to the AssociateExecutive, subject to the provisions of paragraph F G of this Article FIRST and compliance by Associate with Article THIRD hereofFIRST, starting no earlier than on the fifth (5th) business day following the six (6) months’ anniversary of the date of such termination (or death the date of AssociateExecutive’s death, if soonerearlier), in cash, the “Special Severance Payment” (as hereinafter defined) as provided in Section E below). B. C. A Change in Control shall be deemed to occur upon: (a) a change in ownership of the Corporation, which shall occur on the date that any one person, or more than one person acting as a “Group” (as defined under Section 409A of the Code (as defined hereunder)Code), other than Xxxxxxxx Xxxxxxxx or Xxxxxxxx Xxxxxxxxx or a member of the Xxxxxxxx or Gershwind families or any trust established principally for members of the Xxxxxxxx or Gershwind families or an executor, administrator or personal representative of an estate of a member of the Xxxxxxxx or Gershwind families and/or their respective affiliates, acquires ownership of stock of the Corporation that, together with stock held by such person or Group, constitutes more than 50% of the total fair market value or total voting power of the stock of the Corporation; provided, however, that, if any one person or more than one person acting as a Group, is considered to own more than 50% of the total fair market value or total voting power of the stock of the Corporation, the acquisition of additional stock by the same person or persons is not considered to cause a change in the ownership of the Corporation; (b) a change in the effective control of the Corporation, which shall occur on the date that (1) any one person, or more than one person acting as a Group, other than Xxxxxxxx Xxxxxxxx or Xxxxxxxx Xxxxxxxxx or a member of the Xxxxxxxx or Gershwind families or any trust established principally for members of the Xxxxxxxx or Gershwind families or an executor, administrator or personal representative of an estate of a member of the Xxxxxxxx or Gershwind families and/or familiesand/or their respective affiliates, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the Corporation possessing 50% or more of the total voting power of the stock of the Corporation; or (2) a majority of the members of the Board is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election; provided, however, that, if one person, or more than one person acting as a Group, is considered to effectively control the Corporation, the acquisition of additional control of the Corporation by the same person or persons is not considered a change in the effective control of the Corporation; or (c) a change in the ownership of a substantial portion of the Corporation’s assets, which shall occurs occur on the date that any one person, or more than one person acting as a Group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the Corporation that have a total Gross Fair Market Value (as defined hereunderbelow) equal to or more than 80% of the total Gross Fair Market Value of all of the assets of the Corporation immediately prior to such acquisition or acquisitions; provided, however, that, a transfer of assets by the Corporation is not treated as a change in the ownership of such assets if the assets are transferred to (1) a shareholder of the Corporation (immediately before the asset transfer) in exchange for or with respect to its stock; (2) an entity, 50% or more of the total value or voting power of which is owned, directly or indirectly, by thethe Corporation; (3) a person, or more than one person acting as a Group, that owns, directly or indirectly, 50% or more of the total value or voting power of all the outstanding stock of the Corporation; or (4) an entity, at least 50% of the total value or voting power of which is owned, directly or indirectly, by a person described in Article FIRST C.(c)(3).

Inducement Payments. A. If, within two (2) years after a Change in Control, the Associate’s “Circumstances of Employment” (as hereinafter defined) shall have changed, the Associate may terminate his employment by written notice to the Corporation given no later than ninety (90) days following such change in the Associate’s Circumstances of Employment. In the event of such termination by the Associate of his employment or if, within two (2) years after a Change in Control, the Corporation shall terminate the Associate’s employment other than for “Cause” (as hereinafter defined), the Corporation shall pay to the Associate, subject to the provisions of paragraph F of this Article FIRST and compliance by Associate with Article THIRD hereof, starting no earlier than on the fifth (5th) business day following the six (6) months’ anniversary of such termination (or death of Associate, if sooner), in cash, the “Special Severance Payment” (as hereinafter defined) as provided in Section E below. B. Change in Control shall be deemed to occur upon: (a) a change in ownership of the Corporation, which shall occur on the date that any one person, or more than one person acting as a “Group” (as defined under Section 409A of the Code (as defined hereunder)), other than Xxxxxxxx Xxxxxxxx or Xxxxxxxx Xxxxxxxxx or a member of the Xxxxxxxx or Gershwind families or any trust established principally for members of the Xxxxxxxx or Gershwind families or an executor, administrator or personal representative of an estate of a member of the Xxxxxxxx or Gershwind families and/or their respective affiliates, acquires ownership of stock of the Corporation that, together with stock held by such person or Group, constitutes more than 50% of the total fair market value or total voting power of the stock of the Corporation; provided, however, that, if any one person or more than one person acting as a Group, is considered to own more than 50% of the total fair market value or total voting power of the stock of the Corporation, the acquisition of additional stock by the same person or persons is not considered to cause a change in the ownership of the Corporation; (b) a change in the effective control of the Corporation, which shall occur on the date that (1) any one person, or more than one person acting as a Group, other than Xxxxxxxx Xxxxxxxx or Xxxxxxxx Xxxxxxxxx or a member of the Xxxxxxxx or Gershwind families or any trust established principally for members of the Xxxxxxxx or Gershwind families or an executor, administrator or personal representative of an estate of a member of the Xxxxxxxx or Gershwind families and/or their respective affiliates, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the Corporation possessing 50% or more of the total voting power of the stock of the Corporation; or (2) a majority of the members of the Board is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election; provided, however, that, if one person, or more than one person acting as a Group, is considered to effectively control the Corporation, the acquisition of additional control of the Corporation by the same person or persons is not considered a change in the effective control of the Corporation; or (c) a change in the ownership of a substantial portion of the Corporation’s assets, which shall occurs occur on the date that any one person, or more than one person acting as a Group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the Corporation that have a total Gross Fair Market Value (as defined hereunder) equal to or more than 80% of the total Gross Fair Market Value of all of the assets of the Corporation immediately prior to such acquisition or acquisitions; provided, however, that, a transfer of assets by the Corporation is not treated as a change in the ownership of such assets if the assets are transferred to (1) a shareholder of the Corporation (immediately before the asset transfer) in exchange for or with respect to its stock; (2) an entity, 50% or more of the total value or voting power of which is owned, directly or indirectly, by thethe Corporation; (3) a person, or more than one person acting as a Group, that owns, directly or indirectly, 50% or more of the total value or voting power of all the outstanding stock of the Corporation; or (4) an entity, at least 50% of the total value or voting power of which is owned, directly or indirectly, by a person described in Article FIRST B(c)(3).