EXHIBIT 10.9
BJ'S WHOLESALE CLUB, INC.
INDEMNIFICATION AGREEMENT
This Agreement, made and entered into as of this ____ day of
__________________ (the "Agreement"), is between BJ's Wholesale Club, Inc., a
Delaware corporation (the "Company," which term shall include any one or more of
its subsidiaries where appropriate), and ____________________________ (the
"Indemnitee"):
WHEREAS, highly competent persons are reluctant to serve public companies
as directors or as officers or in other capacities unless they are provided with
adequate indemnification against inordinate risks of claims and actions against
them arising out of their service to, and activities on behalf of, such
companies; and
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the
Company; and
WHEREAS, Indemnitee is willing to serve, continue to serve and/or to take
on additional service for or on behalf of the Company on the condition that he
or she be so indemnified;
NOW THEREFORE, in consideration of the premises and the covenants contained
herein, the Company and Indemnitee do hereby covenant and agree as follows:
1. Definitions. For purposes of this Agreement:
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(a) "Change of Control" shall have the meaning set forth on Exhibit A
hereto.
(b) "Corporate Status" describes the status of a person who is or was
or has agreed to become a director of the Company or any of its
subsidiaries, or is or was or has agreed to become an officer or fiduciary
of the Company or of any other corporation, partnership, joint venture,
limited liability company, trust, employee benefit plan or other enterprise
which such person is or was serving or has agreed to serve at the request
of the Company.
(c) "Disinterested Director" means a director of the Company who is
not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(d) "Expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, travel expenses,
duplicating costs,
printing and binding costs, telephone charges, postage, delivery service
fees and all other disbursements or expenses of the types customarily
incurred in connection with prosecuting, defending, preparing to prosecute
or defend or investigating a Proceeding, but shall not include the amount
of judgments, fines or penalties against Indemnitee.
(e) "Independent Counsel" means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither presently is,
nor in the past five years has been, retained to represent the Company or
Indemnitee in any matter material to either such party. Notwithstanding
the forgoing, the term "Independent Counsel" shall not include any person
who, under the applicable standards of professional conduct then
prevailing\\, \\would have a conflict of interest in representing either
the Company or Indemnitee in an action to determine Indemnitee's rights
under this Agreement.
(f) "Proceeding" includes any action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative hearing, appeal
or any other proceeding, whether civil, criminal, administrative or
investigative, arising on or after the date of this Agreement (and
regardless of when the Indemnitee's act or failure to act occurred), except
one initiated by an Indemnitee pursuant to Section 10 of this Agreement to
enforce his or her rights under this Agreement.
2. Services by Indemnitee. Indemnitee agrees to serve or continue to
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serve as a director or officer of the Company and/or one or more of its
subsidiaries. This Agreement shall not impose any obligation on the Indemnitee
or the Company or any of its subsidiaries to continue the Indemnitee's position
with the Company or any of its subsidiaries beyond any period otherwise
applicable.
3. General. The Company shall indemnify, and shall advance Expenses to,
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Indemnitee as provided in this Agreement with respect to any matters pertaining
to Indemnitee's Corporate Status and to the fullest extent permitted by law.
4. Proceedings Other Than Proceedings by or in the Right of the Company.
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Indemnitee shall be entitled to the rights of indemnification provided in this
Section 4 if, by reason of his or her Corporate Status, he or she is, or is
threatened to be made, a party to any threatened, pending, or completed
Proceeding other than a Proceeding by or in the right of the Company. Pursuant
to this Section 4, Indemnitee shall be indemnified against Expenses, judgments,
penalties and fines and amounts paid in settlement actually and reasonably
incurred by him or her or on his or her behalf in connection with any such
Proceeding or any claim, issue or matter therein, if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any criminal Proceeding,
had no reasonable cause to believe his or her conduct was unlawful.
Notwithstanding the preceding provisions of this Section 4, it is the intention
of the
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parties hereto that Indemnitee shall be indemnified to the full extent
authorized or permitted by Delaware law and, therefore, to the extent Delaware
law shall permit broader contractual indemnification, this contract shall be
deemed amended to incorporate such broader indemnification.
5. Proceedings by or in the Right of the Company. Indemnitee shall be
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entitled to the rights of indemnification provided in this Section 5 if, by
reason of his or her Corporate Status, he or she is, or is threatened to be
made, a party to any threatened, pending or completed Proceeding brought by or
in the right of the Company to procure a judgment in its favor. Pursuant to
this Section 5, Indemnitee shall be indemnified against Expenses and, to the
extent permitted by applicable law, amounts paid in settlement actually and
reasonably incurred by him or her on his or her behalf in connection with such
Proceeding if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Company.
Notwithstanding the preceding provisions of this Section 5, it is the intention
of the parties hereto that Indemnitee shall be indemnified to the full extent
authorized or permitted by Delaware law and, therefore, to the extent Delaware
law shall permit broader contractual indemnification, this contract shall be
deemed amended to incorporate such broader indemnification. Notwithstanding the
foregoing provisions of this Section 5, no indemnification against such Expenses
shall be made in respect of any claim, issue or matter as to which Indemnitee
shall have been adjudged to be liable to the Company; provided, however, that
indemnification against Expenses shall nevertheless be made by the Company in
such event to the extent that the Court of Chancery of the State of Delaware, or
the court in which such Proceeding shall have been brought or is pending, shall
determine.
6. Indemnification for Expenses of a Party who is Wholly or Partly
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Successful. Notwithstanding any other provision of this Agreement, but subject
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to Section 14, to the extent that Indemnitee is, by reason of his or her
Corporate Status, a party to and is successful, on the merits or otherwise, in
any Proceeding, he or she shall be indemnified against all Expenses actually and
reasonably incurred by him or her on his or her behalf in connection therewith.
If Indemnitee is not wholly successful in such Proceeding but is successful, on
the merits or otherwise, as to one or more but less than all claims, issues or
matters in such Proceeding, the Company shall indemnify Indemnitee against all
Expenses actually and reasonably incurred by him or her on his or her behalf in
connection with each successfully resolved claim, issue or matter. For purposes
of this Section 6 and without limitation, the termination of any claim, issue or
matter in such a Proceeding by dismissal or withdrawal, with or without
prejudice, shall be deemed to be a successful result as to such claim, issue or
matter.
7. Advance of Expenses. The Company shall advance all reasonable
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Expenses incurred by or on behalf of Indemnitee in connection with any
Proceeding within 20 days after the receipt by the Company of a statement or
statements from Indemnitee requesting such advance or advances from time to
time, whether prior to or after final
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disposition of such Proceeding. Such statement or statements shall reasonably
evidence the Expenses incurred or to be incurred by Indemnitee and shall include
or be preceded or accompanied by an undertaking by or on behalf of Indemnitee to
repay any Expenses advanced to the extent it shall ultimately be determined that
Indemnitee is not entitled to be indemnified hereunder against such Expenses.
8. Procedure for Determination of Entitlement to Indemnification.
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(a) To obtain indemnification under this Agreement, Indemnitee shall
submit to the Company a written request, including therein or therewith
such documentation and information as is reasonably available to Indemnitee
and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification hereunder.
(b) Upon written request by Indemnitee for indemnification pursuant to
Section 8(a) hereof, a determination, if required by applicable law, with
respect to Indemnitee's entitlement thereto under Delaware law shall be
made in the specific case: (i) if a Change of Control shall have occurred,
by Independent Counsel (unless Indemnitee shall request that such
determination be made by the Board of Directors or the stockholders, in
which case the determination shall be made in the manner provided below in
clauses (ii) or (iii), as the case may be) in a written opinion to the
Board of Directors, a copy of which shall be delivered to Indemnitee; (ii)
if a Change of Control shall not have occurred, (A) by the Board of
Directors by a majority vote of a quorum consisting of Disinterested
Directors, or (B) if a quorum of the Board of Directors consisting of
Disinterested Directors is not obtainable, or, even if obtainable, such
quorum of Disinterested Directors so directs, by Independent Counsel in a
written opinion to the Board of Directors, a copy of which shall be
delivered to Indemnitee, or (C) by the stockholders of the Company; or
(iii) as provided in Section 9(b) of this Agreement; and, if it is so
determined that Indemnitee is entitled to indemnification, payment to
Indemnitee shall be made within ten days after such determination.
Indemnitee shall cooperate with the person, persons or entity making such
determination with respect to Indemnitee's entitlement to indemnification,
including providing to such person, persons or entity upon reasonable
advance request any documentation or information which is not privileged or
otherwise protected from disclosure and which is reasonably available to
Indemnitee and reasonably necessary to such determination. Any costs or
expenses (including attorneys' fees and disbursements) incurred by
Indemnitee in so cooperating shall be borne by the Company (irrespective of
the determination as to Indemnitee's entitlement to indemnification) and
the Company hereby indemnifies and agrees to hold Indemnitee harmless
therefrom.
(c) In the event the determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to Section 8(b) of this
Agreement,
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the Independent Counsel shall be selected as provided in this Section 8(c).
If a Change of Control shall not have occurred, the Independent Counsel
shall be selected by the Board of Directors, and the Company shall give
written notice to Indemnitee advising him or her of the identity of the
Independent Counsel so selected. If a Change of Control shall have
occurred, the Independent Counsel shall be selected by Indemnitee (unless
Indemnitee shall request that such selection be made by the Board of
Directors, in which event the preceding sentence shall apply), and
Indemnitee shall give written notice to the Company advising it of the
identity of the Independent Counsel so selected. In either event,
Indemnitee or the Company, as the case may be, may, within seven days after
such written notice of selection shall have been given, deliver to the
Company or to Indemnitee, as the case may be, a written objection to such
selection. Such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of
"Independent Counsel" as defined in Section 1 of this Agreement, and the
objection shall set forth with particularity the factual basis of such
assertion. If such written objection is made, the Independent Counsel so
selected may not serve as Independent Counsel unless and until a court has
determined that such objection is without merit. If, within 20 days after
submission by Indemnitee of a written request for indemnification pursuant
to Section 8(a) hereof, no Independent Counsel shall have been selected or
if selected, shall have been objected to, in accordance with this Section
8(c), either the Company or Indemnitee may petition the Court of Chancery
of the State of Delaware or other court of competent jurisdiction for
resolution of any objection which shall have been made by the Company or
Indemnitee to the other's selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the Court or by
such other person as the Court shall designate, and the person with respect
to whom an objection is favorably resolved or the person so appointed shall
act as Independent Counsel under Section 8(b) hereof. The Company shall pay
any and all reasonable fees and expenses of Independent Counsel incurred by
such Independent Counsel in connection with acting pursuant to Section 8(b)
hereof, and the Company shall pay all reasonable fees and expenses incident
to the procedures of this Section 8(c), regardless of the manner in which
such Independent Counsel was selected or appointed.
9. Presumptions and Effect of Certain Proceedings.
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(a) In making a determination with respect to entitlement to
indemnification hereunder, the person, persons or entity making such
determination shall presume that Indemnitee is entitled to indemnification
under this Agreement if Indemnitee has submitted a request for
indemnification in accordance with Section 8(a) of this Agreement, and the
Company shall have the burden of proof to overcome that presumption in
connection with the making by any person, persons or entity of any
determination contrary to that presumption.
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(b) If the person, persons or entity empowered or selected under
Section 8 of this Agreement to determine whether Indemnitee is entitled to
indemnification shall not have made such determination within 60 days after
receipt by the Company of the request therefor, the requisite determination
of entitlement to indemnification shall be deemed to have been made and
Indemnitee shall be entitled to such indemnification, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a material
fact necessary to make Indemnitee's statement not materially misleading, in
connection with the request for indemnification, or (ii) a prohibition of
such indemnification under applicable law; provided, however, that such 60-
day period may be extended for a reasonable time, not to exceed an
additional 30 days, if the person, persons or entity making the
determination with respect to entitlement to indemnification in good faith
requires such additional time for the obtaining or evaluating of
documentation and/or information relating thereto; and provided, further,
that the foregoing provisions of this Section 9(b) shall not apply if the
determination of entitlement to indemnification is to be made by the
stockholders pursuant to Section 8(b) of this Agreement and if (A) within
15 days after receipt by the Company of the request for such determination
the Board of Directors has resolved to submit such determination to the
stockholders for their consideration at an annual meeting thereof to be
held within 75 days after such receipt and such determination is made
thereat, or (B) a special meeting of stockholders is called within 15 days
after such receipt for the purpose of making such determination, such
meeting is held for such purpose within 60 days after having been so called
and such determination is made thereat.
(c) The termination of any Proceeding or of any claim, issue or matter
therein by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, shall not (except as otherwise expressly
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provided in this Agreement) of itself adversely affect the right of
Indemnitee to indemnification or create a presumption that Indemnitee did
not act in good faith and in a manner which he or she reasonably believed
to be in or not opposed to the best interests of the Company or, with
respect to any criminal Proceeding, that Indemnitee had reasonable cause to
believe that his or her conduct was unlawful.
10. Remedies of Indemnitee.
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(a) In the event that (i) a determination is made pursuant to Section
8 of this Agreement that Indemnitee is not entitled to indemnification
under this Agreement, (ii) advancement of Expenses is not timely made
pursuant to Section 7 of this Agreement, (iii) payment of indemnification
is not made pursuant to Section 6 of this Agreement within ten days after
receipt by the Company of a written request therefor, or (iv) payment of
indemnification is not made within ten days after a determination has been
made that Indemnitee is entitled to indemnification or such determination
is deemed to have been made pursuant to
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Section 9(b) of this Agreement, Indemnitee shall be entitled to an
adjudication in an appropriate court of the State of Delaware, or in any
other court of competent jurisdiction, of his or her entitlement to such
indemnification or advancement of Expenses. Alternatively, Indemnitee, at
his or her option, may seek an award in arbitration to be conducted by a
single arbitrator pursuant to the rules of the American Arbitration
Association. The Company shall not oppose Indemnitee's right to seek any
such adjudication or award in arbitration.
(b) In the event that a determination shall have been made pursuant to
Section 8 of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant
to this Section 10 shall be conducted in all respects as a de novo trial,
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or arbitration, on the merits and Indemnitee shall not be prejudiced by
reason of that adverse determination. In any judicial proceeding or
arbitration commenced pursuant to this Section 10 the Company shall have
the burden of proving that Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be.
(c) If a determination shall have been made or deemed to have been
made pursuant to Section 8 or Section 9 of this Agreement that Indemnitee
is entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding or arbitration commenced pursuant
to this Section 10, absent (i) a misstatement by Indemnitee of a material
fact, or an omission of a material fact necessary to make Indemnitee's
statement not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under
applicable law.
(d) The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 10 that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this
Agreement.
(e) In the event that Indemnitee, pursuant to this Section 10, seeks a
judicial adjudication of or an award in arbitration to enforce his or her
rights under, or to recover damages for breach of, this Agreement,
Indemnitee shall be entitled to recover from the Company, and shall be
indemnified by the Company against, any and all expenses (of the types
described in the definition of Expenses in Section 1 of this Agreement)
actually and reasonably incurred by him or her in such judicial
adjudication or arbitration, but only if he or she prevails therein. If it
shall be determined in said judicial adjudication or arbitration that
Indemnitee is entitled to receive part but not all of the indemnification
or advancement of expenses sought, the expenses incurred by Indemnitee in
connection with such judicial adjudication or arbitration shall be
appropriately prorated.
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11. Security. To the extent requested by the Indemnitee and approved by
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the Board of Directors, the Company may at any time and from time to time
provide security to the Indemnitee for the Company's obligations hereunder
through an irrevocable bank line of credit, funded trust or other collateral.
Any such security, once provided to the Indemnitee, may not be revoked or
released without the prior written consent of Indemnitee.
12. Non-Exclusivity; Duration of Agreement; Subrogation.
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(a) The rights of indemnification and to receive advancement of
Expenses as provided by this Agreement shall not be deemed exclusive of any
other rights to which Indemnitee may at any time be entitled under
applicable law, the Company's certificate of incorporation or by-laws, any
other agreement, a vote of stockholders or a resolution of directors, or
otherwise. This Agreement shall continue as to Indemnitee even though his
or her Corporate Status may have ceased and shall inure to the benefit of
Indemnitee and his or her heirs, executors and administrators.
(b) In the event of any payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such
documents as are necessary to enable the Company to bring suit to enforce
such rights.
(c) The Company shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder if and to the extent
that Indemnitee has otherwise actually received such payment under any
insurance policy, contract, agreement or otherwise.
13. Severability. If any provision or provisions of this Agreement shall
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be held to be invalid, illegal or unenforceable for any reason whatsoever: (a)
the validity, legality and enforceability of the remaining provisions of this
Agreement (including without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby; and (b) to the fullest extent
permitted by applicable law, the provisions of this Agreement (including,
without limitation, each portion of any Section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held invalid, illegal or unenforceable.
14. Exception to Right of Indemnification or Advancement of Expenses.
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Notwithstanding any other provision of this Agreement, except as otherwise
provided in Section 10, Indemnitee shall not be entitled to indemnification or
advancement of
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Expenses under this Agreement with respect to any Proceeding, or any claim
therein, brought or made by him or her against the Company without the prior
written consent of the Company.
15. Headings. The headings of the paragraphs of this Agreement are
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inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
16. Modification and Waiver. This Agreement may be amended from time to
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time to reflect changes in Delaware law or for other reasons. No supplement,
modification or amendment of this Agreement shall be binding unless executed in
writing by both of the parties hereto. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
17. Notice by Indemnitee. Indemnitee agrees promptly to notify the
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Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advancement of Expenses
covered hereunder; provided, however, that the failure to give any such notice
shall not disqualify the Indemnitee from indemnification hereunder.
18. Notices. All notices, requests, demands and other communications
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hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed, or (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the date
on which it is so mailed:
(a) If to Indemnitee to:
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(b) If to the Company to:
BJ's Wholesale Club, Inc.
Xxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
or to such other address as may have been furnished to Indemnitee by the Company
or the Company by Indemnitee, as the case may be.
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19. Governing Law. The parties agree that this Agreement shall be
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governed by, and construed and enforced in accordance with, the domestic
substantive laws of the State of Delaware without giving effect to any choice or
conflict of laws rule or provision that would result in the application of the
domestic substantive laws of any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
BJ'S WHOLESALE CLUB, INC.
By ____________________________
INDEMNITEE
________________________________
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EXHIBIT A
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Definition of "Change of Control"
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For the purpose of this Agreement, a "Change of Control" shall mean:
(a) The acquisition by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"))(a "Person") of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
either (i) the then-outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (ii) the combined voting power of the
then-outstanding voting securities of the Company entitled to vote generally in
the election of directors (the "Outstanding Company Voting Securities");
provided, however, that for purposes of this subsection (a), the following
acquisitions shall not constitute a Change of Control: (i) any acquisition
directly from the 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 corporation controlled by the Company, or (iv)
any acquisition by any corporation pursuant to a transaction which satisfies the
criteria set forth in clauses (i), (ii) and (iii) of subsection (c) of this
definition; or
(b) Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director subsequently
to the date hereof whose election, or nomination for election by the Company's
stockholders, 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 (except that this proviso shall
not apply to any individual whose initial assumption of office as a director
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); or
(c) Consummation of a reorganization, merger or consolidation
involving the Company or a sale or other disposition of all or substantially all
of the assets of the Company (a "Business Combination"), in each case, unless,
immediately following such Business Combination, (i) all or substantially all of
the individuals and entities who were the beneficial owners, respectively, of
the Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 60% of, respectively, 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, of the
corporation resulting from such Business Combination (which as used in section
(c) of this definition shall include, without limitation, a corporation which as
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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 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 the Company or such corporation resulting from such
Business Combination) beneficially owns, directly or indirectly, 20% 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 and (iii) at least half
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 stockholders of the Company of a complete
liquidation or dissolution of the Company.
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