Common use of Resignation by Executive Following A Change in Control Clause in Contracts

Resignation by Executive Following A Change in Control. Executive may resign from the Company's employ during the thirty (30) day period commencing on the first anniversary following a Change in Control of the Company for any reason by providing the Company with a written notice of termination. Should Executive notify the Company that Good Reason exists at any time within the twenty-four (24) months following a Change in Control and should the event constituting Good Reason continue for more than ten (10) days following Executive's notice, Executive may, at his option, immediately resign or resign at any time during such twenty-four month period and any such resignation shall be treated as a resignation for Good Reason under this Agreement. For purposes of this Agreement, a Change in Control of the Company means the occurrence of one of the following events: (a) any "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes, after the Effective Date, the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing twenty-five percent (25%) or more of the Company's then outstanding securities eligible to vote for the election of the Company's Board of Directors (the "Company Voting Securities"); provided, that an event described in this paragraph (a) shall not be a Change in Control if any of the following becomes such a beneficial owner: (i) the Company or any majority-owned subsidiary of the Company (a "Subsidiary"), (ii) any employee benefit plan (or related trust) sponsored or maintained by the Company or any Subsidiary, (iii) any underwriter temporarily holding securities pursuant to an offering of such securities, (iv) [Xxxxxxx Xxxxx Capital Partners, Highland Capital and Xxx Xxxxxx], (v) Executive or any group of persons including Executive (or any entity controlled by Executive or any group of persons including Executive),or (vi) a beneficial owner of less than twenty-five percent (25%) of the Company Voting Securities that becomes a beneficial owner of twenty-five percent (25%) or more of the Company Voting Securities solely by reason of redemption of such securities by the Company; (b) the consummation of a merger, consolidation or reorganization of the Company (a "Business Combination"), unless, following such Business Combination, the owners of the Company Voting Securities immediately prior to such Business Combination (or their affiliates) beneficially own, directly or indirectly, fifty percent (50%) or more of the combined voting power of the then outstanding voting securities entitled to vote generally in the election of the directors of the corporation resulting from such Business Combination (a "Non- Qualifying Transaction"); or (c) during any period of twenty-four (24) consecutive months after the Effective Date, the failure (for any reason other than death) of individuals who, at the beginning of such period, constitute the Board (the "Incumbent Directors") to constitute at least a majority of the Board; provided that a director who was not a director at the beginning of such twenty-four (24) month period shall be deemed to have satisfied such twenty-four (24) month requirement (and be an Incumbent Director) if such director is elected by, or on the recommendation of (i) or with the approval of, at least two-thirds (2/3) of the directors who then qualified as Incumbent Directors either actually (because they were directors at the beginning of such twenty-four (24) month period) or by prior operation of this Section 6.5(c) or (ii) any person described in clause (iv) of Section 6.5(a) above pursuant to contractual rights as of the Effective Date with respect to Company Voting Securities owned by such person.) The initial public offering of common stock of the Company pursuant to a registration statement filed under the Securities Act of 1933, as amended (a "Public Offering"), the commencement of proceedings under the Bankruptcy Code with respect to the Company, or the acquisition of equity in the Company or its successor pursuant to a plan of reorganization approved by a bankruptcy court with respect to the Company shall not be treated as a Change in Control for purposes of this Agreement.

Resignation by Executive Following A Change in Control. Executive may resign from the Company's employ during the thirty ninety (3090) day period commencing on the first anniversary following a date that is six (6) months after any Change in Control of the Company for any reason by providing the Company with a written notice of termination. Should Notwithstanding anything to the contrary in Section 6.4, should Executive notify the Company that Good Reason exists at any time within the twenty-four (24) months following a any Change in Control and should the event constituting Good Reason continue for more than ten (10) days following Executive's notice, Executive may, at his option, immediately resign or resign at any time during such twenty-four month period and any such resignation shall be treated as a resignation for Good Reason under this Agreement. For purposes of this Agreement, a Change in Control of the Company means the occurrence of one of the following events: (a) The acquisition by any "person" individual, entity or "group" group (within the meaning of Sections 13(dSection 13(d)(3) and or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes, after (a "Person") of beneficial ownership (within the Effective Date, the "beneficial owner" (as defined in meaning of Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, ) of securities of the Company representing twenty-five percent (25%) or more of either (A) the Company's then then-outstanding shares of common stock of the Company (the "Outstanding Company Common Stock") or (B) the combined voting power of the then-outstanding voting securities eligible of the Company entitled to vote for generally in the election of the Company's Board of Directors directors (the "Outstanding Company Voting Securities"); provided, that an event described in however, that, for purposes of this paragraph (a) Section 6.5(a), the following acquisitions shall not be constitute a Change in Control if any of the following becomes such a beneficial ownerControl: (i) any acquisition directly from the Company or any majority-owned subsidiary of the Company (a "Subsidiary")Company, (ii) any acquisition by the Company, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any Subsidiaryof its affiliates, (iiiiv) any acquisition by any corporation pursuant to a transaction that complies with Sections 6.5(c)(i), 6.5(c)(ii) and 6.5(c)(iii), (v) any acquisition by any underwriter temporarily holding securities pursuant to an offering of such securities, (ivvi) [any acquisition by Xxxxxxx Xxxxx Capital Partners, Partners and Highland Capital and Xxx Xxxxxx]Capital, (vvii) any acquisition by Executive or any group of persons including Executive (or any entity controlled by Executive or any group of persons including Executive),or Executive) or (viviii) a beneficial owner of less than twenty-five percent (25%) of the Outstanding Company Voting Securities that becomes a beneficial owner of twenty-five percent (25%) or more of the Outstanding Company Voting Securities solely by reason of redemption or repurchase of such securities by the CompanyCompany so long as such beneficial owner takes immediate action to reduce its beneficial ownership of Company Voting Securities below twenty-five percent (25%); (b) the consummation of a merger, consolidation or reorganization of the Company (a "Business Combination"), unless, following such Business Combination, the owners of the Company Voting Securities immediately prior to such Business Combination (or their affiliates) beneficially own, directly or indirectly, fifty percent (50%) or more of the combined voting power of the then outstanding voting securities entitled to vote generally in the election of the directors of the corporation resulting from such Business Combination (a "Non- Qualifying Transaction"); or (c) during any period of twenty-four (24) consecutive months after the Effective Date, the failure (for any reason other than death) of Any time at which individuals who, at as of the beginning of such perioddate hereof, constitute the Board (the "Incumbent DirectorsBoard") cease for any reason to constitute at least a majority of the Board; provided provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; provided, further, that any individual becoming a director subsequent to the date hereof who was not a director at the beginning of such twenty-four (24) month period shall be deemed to have satisfied such twenty-four (24) month requirement (and be an Incumbent Director) if such director is elected by, or on the recommendation of (i) or with the approval of, at least two-thirds (2/3) of the directors who then qualified as Incumbent Directors either actually (because they were directors at the beginning of such twenty-four (24) month period) or by prior operation of this Section 6.5(c) or (ii) any person described in clause (ivvi) of Section 6.5(a) above pursuant to contractual rights as of the Effective Date with respect to Outstanding Company Voting Securities owned by such person.; (c) The initial public offering Consummation of common stock a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving the Company or any of its subsidiaries, a sale or other disposition of all or substantially all of the Company pursuant to a registration statement filed under the Securities Act assets of 1933, as amended (a "Public Offering"), the commencement of proceedings under the Bankruptcy Code with respect to the Company, or the acquisition of equity in assets or stock of another entity by the Company or any of its successor pursuant subsidiaries (each, a "Business Combination"), in each case unless, following such Business Combination, (i) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Common Stock and the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than fifty percent (50%) of the then-outstanding shares of common stock and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation that, as a result of such transaction, owns the Company or all or substantially all of the Company's assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Stock and the Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of reorganization approved by a bankruptcy court with respect the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, twenty-five percent (25%) or more of, respectively, the then-outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such corporation, except to the extent that such ownership existed prior to the Business Combination, and (iii) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination; or (d) Approval by the shareholders of the Company shall not be treated as of a Change in Control for purposes complete liquidation or dissolution of this Agreementthe Company.

Resignation by Executive Following A Change in Control. Executive may resign from the Company's employ during the thirty ninety (3090) day period commencing on the first anniversary following date that is six (6) months after a Change in Control of the Company for any reason by providing the Company with a written notice of termination. Should Notwithstanding anything to the contrary in Section 6.4, should Executive notify the Company that Good Reason exists at any time within the twenty-four (24) months following a Change in Control and should the event constituting Good Reason continue for more than ten (10) days following Executive's notice, Executive may, at his option, immediately resign or resign at any time during such twenty-four month period and any such resignation shall be treated as a resignation for Good Reason under this Agreement. For purposes of this Section 6.5 only, Good Reason shall include any relocation of Executive's principal place of employment more than 25 miles from the location existing on the date of the Change in Control. For purposes of this Agreement, a Change in Control of the Company means the occurrence of one of the following events: (a) The acquisition by any "person" individual, entity or "group" group (within the meaning of Sections 13(dSection 13(d)(3) and or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes, after (a "Person") of beneficial ownership (within the Effective Date, the "beneficial owner" (as defined in meaning of Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, ) of securities of the Company representing twenty-five percent (25%) or more of either (A) the Company's then then-outstanding shares of common stock of the Company (the "Outstanding Company Common Stock") or (B) the combined voting power of the then-outstanding voting securities eligible of the Company entitled to vote for generally in the election of the Company's Board of Directors directors (the "Outstanding Company Voting Securities"); provided, that an event described in however, that, for purposes of this paragraph (a) Section 6.5(a), the following acquisitions shall not be constitute a Change in Control if any of the following becomes such a beneficial ownerControl: (i) any acquisition directly from the Company or any majority-owned subsidiary of the Company (a "Subsidiary")Company, (ii) any acquisition by the Company, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any Subsidiaryof its affiliates, (iiiiv) any acquisition by any corporation pursuant to a transaction that complies with Sections 6.5(c)(i), 6.5(c)(ii) and 6.5(c)(iii), (v) any acquisition by any underwriter temporarily holding securities pursuant to an offering of such securities, (ivvi) [any acquisition by Xxxxxxx Xxxxx Capital Partners, Partners and Highland Capital and Xxx Xxxxxx]Capital, (vvii) any acquisition by Executive or any group of persons including Executive (or any entity controlled by Executive or any group of persons including Executive),or Executive) or (viviii) a beneficial owner of less than twenty-five percent (25%) of the Outstanding Company Voting Securities that becomes a beneficial owner of twenty-five percent (25%) or more of the Outstanding Company Voting Securities solely by reason of redemption or repurchase of such securities by the CompanyCompany so long as such beneficial owner takes immediate action to reduce its beneficial ownership of Company Voting Securities below twenty-five percent (25%); (b) the consummation of a merger, consolidation or reorganization of the Company (a "Business Combination"), unless, following such Business Combination, the owners of the Company Voting Securities immediately prior to such Business Combination (or their affiliates) beneficially own, directly or indirectly, fifty percent (50%) or more of the combined voting power of the then outstanding voting securities entitled to vote generally in the election of the directors of the corporation resulting from such Business Combination (a "Non- Qualifying Transaction"); or (c) during any period of twenty-four (24) consecutive months after the Effective Date, the failure (for any reason other than death) of Any time at which individuals who, at as of the beginning of such perioddate hereof, constitute the Board (the "Incumbent DirectorsBoard") cease for any reason to constitute at least a majority of the Board; provided provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; provided, further, that any individual becoming a director subsequent to the date hereof who was not a director at the beginning of such twenty-four (24) month period shall be deemed to have satisfied such twenty-four (24) month requirement (and be an Incumbent Director) if such director is elected by, or on the recommendation of (i) or with the approval of, at least two-thirds (2/3) of the directors who then qualified as Incumbent Directors either actually (because they were directors at the beginning of such twenty-four (24) month period) or by prior operation of this Section 6.5(c) or (ii) any person described in clause (ivvi) of Section 6.5(a) above pursuant to contractual rights as of the Effective Date with respect to Outstanding Company Voting Securities owned by such person.; (c) The initial public offering Consummation of common stock a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving the Company or any of its subsidiaries, a sale or other disposition of all or substantially all of the Company pursuant to a registration statement filed under the Securities Act assets of 1933, as amended (a "Public Offering"), the commencement of proceedings under the Bankruptcy Code with respect to the Company, or the acquisition of equity in assets or stock of another entity by the Company or any of its successor pursuant subsidiaries (each, a "Business Combination"), in each case unless, following such Business Combination, (i) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Common Stock and the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than fifty percent (50%) of the then-outstanding shares of common stock and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation that, as a result of such transaction, owns the Company or all or substantially all of the Company's assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Stock and the Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of reorganization approved by a bankruptcy court with respect the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, twenty-five percent (25%) or more of, respectively, the then-outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such corporation, except to the extent that such ownership existed prior to the Business Combination, and (iii) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination; or (d) Approval by the shareholders of the Company shall not be treated as of a Change in Control for purposes complete liquidation or dissolution of this Agreementthe Company.