EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated September 26, 2003 by and between NexMed, Inc.,
a Nevada corporation (the "Company") and Xxxxx X. Xxxxxx (the "Executive").
WHEREAS, the Company desires to continue to employ Executive and to enter
into an agreement (the "Agreement") embodying the terms of such employment;
WHEREAS, the Company considers it essential to its best interests and the
best interests of its stockholders to xxxxxx the continued employment of
Executive by the Company during the term of this Agreement; and
WHEREAS, Executive is willing to accept and continue his employment on the
terms hereinafter set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein and for other good and valuable consideration, the parties agree as
follows:
1. Term of Employment. Subject to earlier termination in accordance with the
provisions of Section 6 of this Agreement, Executive shall be employed by
the Company pursuant to the terms of this Agreement for a period commencing
on January 1, 2003 (the "Effective Date") and ending on December 31, 2005
(the "Expiration Date"); provided, however, that, the term of employment
under this Agreement (the "Employment Term") shall be automatically
extended for one additional year unless and until either party gives notice
to the other, at least 60 days before the Expiration Date, that the
Employment Term should not be automatically extended.
2. Position.
(a) During the Employment Term, Executive shall be employed as a Senior
Vice President of the Company, and shall have such duties, authority,
and responsibility as are commensurate with his position, subject to
the direction of the Company's Chief Executive Officer (the "CEO").
Executive shall initially have the title of Senior Vice President,
Scientific Affairs of the Company.
(b) During the Employment Term, Executive shall devote all of his business
time and attention to the performance of his duties hereunder
faithfully and to the best of his abilities and shall not undertake
employment with, or participate in, the conduct of the business
affairs of any other person, corporation, or entity; provided, that,
nothing shall preclude Executive from (i) with the prior written
approval of the CEO, serving in due course as a director, trustee or
member of a committee of any organization or (ii) participating in the
affairs of any recognized charitable organizations, or in any
community affairs, of Executive's choice.
(c) Executive's duties hereunder shall be performed for the Company
worldwide, with particular emphasis in the Company's headquarters in
Robbinsville, New Jersey.
3. Compensation.
(a) Base Salary. During the Employment Term, the Company shall pay
Executive a base salary, subject to increase at the discretion of the
Board of Directors of the Company (the "Board"), at the annual rate of
$203,000 (the "Base Salary"), payable in regular installments in
accordance with the Company's usual payroll dates practices.
(b) Bonus. With respect to each calendar year during the Employment Term,
Executive shall be eligible to earn an annual bonus award (the
"Bonus"). The amount of the Bonus shall be determined by the Board, or
the Compensation Committee of the Board (the "Compensation
Committee"), in its sole discretion, based upon the achievement by the
Company of objective financial targets established and determined by
the Board or the Compensation Committee in consultation with Executive
no later than the end of the first month of such calendar year. The
Bonus in respect of each calendar year in the Employment Term shall be
paid as promptly as practicable following the delivery of the
Company's audited financial statements for such year or, if later, by
April 30 of the calendar year following such year.
(c) Stock Option Grants.
(i) On August 13, 2003, the Compensation Committee approved a grant
to Executive of an option to purchase an aggregate of 120,000
shares of the Company's common stock (the "Option") with an
exercise price of three dollars and seventy-six cents ($3.76)
per share, and with terms and conditions substantially identical
to those contained in Executive's previous option grant. The
Option shall vest in three equal installments on December 31,
2003, December 31, 2004, and December 31, 2005, respectively,
assuming continuous and uninterrupted employment until such
dates.
(ii) The Option shall be subject to The NexMed, Inc. Stock Option and
Long-Term Incentive Compensation Plan (the "Option Plan") and
the applicable stock option agreement.
(iii) In addition to the foregoing, the CEO may recommend to the
Compensation Committee that additional stock options be granted
to Executive in accordance with the terms and subject to the
conditions of the Option Plan.
(iv) All of Executive's outstanding but unvested stock options shall
vest immediately upon the occurrence of a Change in Control (as
defined in Appendix A hereto).
4. Employee Benefits. During the Employment Term, Executive shall be eligible
for inclusion, to the extent permitted by law, as a full-time employee of
the Company or any of its subsidiaries, in any and all of the following
plans, programs, and policies in effect
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at the time: (i) pension, profit sharing, savings, and other retirement
plans and programs, (ii) life and health (medical, dental, hospitalization,
short-term and long-term disability) insurance plans and programs, (iii)
stock option and stock purchase plans and programs, (iv) accidental death
and dismemberment protection plans and programs, (v) travel accident
insurance plans and programs, (vi) vacation policy, and (vii) other plans
and programs sponsored by the Company or any subsidiary for employees or
executives generally, including any and all plans and programs that
supplement any or all of the foregoing types of plans or programs.
5. Business Expenses and Perquisites. The Company shall reimburse to
Executive, or pay directly, all reasonable expenses incurred by Executive
in connection with the business of the Company, and its subsidiaries and
affiliates, including but not limited to business-class travel, reasonable
accommodations, and entertainment, subject to documentation in accordance
with the Company's policy.
6. Termination.
(a) By the Company for Cause. The Company may, for Cause, terminate
Executive's employment hereunder at any time by written notice to
Executive. For purposes of this Agreement, the term "Cause" shall mean
Executive's (i) engaging in fraud against the Company or
misappropriation of funds of the Company, (ii) disregard or failure to
follow specific and reasonable directives of the Board, (iii) willful
failure to perform his duties as Senior Vice President, Scientific
Affairs of the Company, (iv) willful misconduct resulting in material
injury to the Company, (v) violation of the terms of the Confidential
Information and Intellectual Property Agreement between Executive and
NexMed (U.S.A.), Inc., a wholly-owned subsidiary of the Company, dated
October 4, 2000 (the "Intellectual Property Agreement") attached
hereto as Exhibit "A", (vi) conviction of, or Executive's plea of
guilty or no contest to, a felony or any crime involving as a material
element fraud or dishonesty, or (vii) material breach (not covered by
clauses (i) through (vi)) of any of the other provisions of this
Agreement; provided, that, in the case of subclauses (ii), (iii) or
(vii), Cause shall not exist if the act or omission deemed to
constitute Cause is cured (if curable) by Executive within thirty (30)
days after written notice thereof to Executive by the Company. For
purposes of the foregoing, no act, or failure to act, on Executive's
part shall be considered "willful" unless done, or omitted to be done,
by Executive other than in good faith, and without reasonable belief
that his action or omission was in furtherance of the interests of the
Company.
In the event of the termination of Executive's employment under
this Section 6(a) for Cause, the Employment Term shall end on the day
of such termination and the Company shall pay to Executive, no later
than ten (10) days after the last day of Executive's employment, in
one lump sum, the sum of (i) any accrued but unpaid Base Salary,
including salary in respect of any accrued and accumulated vacation,
due to Executive at the date of such termination, (ii) any earned and
unpaid Bonus due to Executive at the date of such termination for the
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calendar year ending immediately prior to the date of such
termination, and (iii) any amounts owing, but not yet paid, pursuant
to Section 5 hereof.
Except as specifically set forth in Section 8 hereof, the Company
shall have no further obligations to Executive under this Agreement.
(b) Disability or Death. If Executive should suffer a Permanent
Disability, the Company may terminate Executive's employment hereunder
upon ten (10) or more days' prior written notice to Executive. For
purposes of this Agreement, a "Permanent Disability" shall be deemed
to have occurred only when Executive has qualified for benefits
(including satisfaction of any applicable waiting period) under the
Company's or a subsidiary's long-term disability insurance arrangement
(the "LTD Policy"). In the event of the termination of Executive's
employment hereunder by reason of Permanent Disability or death, the
Employment Term shall end on the day of such termination and the
Company shall pay, no later than ten days after the last day of
Executive's employment, to Executive or Executive's legal
representative (in the event of Permanent Disability), or any
beneficiary or beneficiaries designated by Executive to the Company in
writing, or to Executive's estate if no such beneficiary has been so
designated (in the event of Executive's death), a single lump sum
payment of (i) any accrued but unpaid Base Salary, including salary in
respect of any accrued and accumulated vacation, due to Executive at
the date of such termination, (ii) any earned but unpaid Bonus due to
Executive at the date of such termination for the calendar year ending
immediately prior to the date of each termination, and (iii) any
amounts owing, but not yet paid, pursuant to Section 5 hereof.
Except as specifically set forth in Section 8 hereof, the Company
shall have no further obligations to Executive under this Agreement.
(c) By the Company without Cause. The Company may, without Cause,
terminate Executive's employment hereunder at any time upon ten (10)
or more days' written notice to Executive. In the event Executive's
employment is terminated pursuant to this Section 6(c), the Employment
Term shall end on the day of such termination and the Company shall
pay to Executive, on the last day of Executive's employment, in one
lump sum, the sum of (i) any accrued but unpaid Base Salary, including
salary in respect of any accrued and accumulated vacation, due to
Executive at the date of such termination, (ii) any earned but unpaid
Bonus due to Executive at the date of such termination for the
calendar year ending immediately prior to the date of such
termination, (iii) any amounts owing, but not yet paid, pursuant to
Section 5 hereof, and (iv) an amount equal to the Executive's annual
Base Salary at the time of such termination for six months, plus an
additional week of Base Salary for every fully completed year of
service. Executive shall also be eligible to receive a pro rata Bonus
in respect of the calendar year in which such termination occurs,
equal to the Bonus in respect of such calendar year multiplied by a
fraction, the numerator of which is the number of days in such year
preceding and including the date of termination, and the denominator
of which is 365. Such pro-rata Bonus shall be paid at the same time
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as the Bonus would have been paid had Executive continued being
employed by the Company through the date of payment.
Except as specifically set forth in Section 8 hereof, the Company
shall have no further obligations to Executive under this Agreement.
(d) By Executive for Good Reason. If any of the events described below
occurs during the Employment Term, Executive may terminate Executive's
employment hereunder for Good Reason by written notice to the Company
identifying the event or omission constituting Good Reason not more
than six (6) months following the occurrence of such event and, in the
case of subclauses (ii) and (iii)below, a failure by the Company to
cure such act or omission within thirty (30) days after receipt of
such written notice. In such event, the Employment Term and
Executive's employment hereunder will be terminated effective as of
the later of thirty-one (31) days after the Company's receipt of
Executive's notice of termination or thirty-one (31) days after the
event, and Executive's termination for Good Reason pursuant to this
Section 6(d) shall be treated for all purposes as a termination
without Cause pursuant to Section 6(c) and the provisions of Section
6(c) shall apply to such termination. In addition, all of Executive's
outstanding but unvested stock options shall vest immediately. The
occurrence of any of the following events without Executive's consent
shall permit Executive to terminate Executive's employment for "Good
Reason" pursuant to this Section 6(d):
(i) A "Change in Control" (as defined in Appendix A hereto) occurs;
(ii) The failure by the Company to observe or comply in any material
respect with any of the material provisions of this Agreement;
and
(iii) A material diminution in Executive's duties.
Except as specifically set forth in Section 8 hereof, the Company
shall have no further obligations to Executive under this Agreement.
(e) By Executive without Good Reason. Executive may terminate the
Employment Term and Executive's employment hereunder at any time
without Good Reason upon thirty (30) days advance written notice to
the Company. In the event Executive's employment is terminated
pursuant to this Section 6(e), the Company shall pay to Executive, no
later than ten (10) days after the last day of Executive's employment,
in one lump sum, the sum of (i) any accrued but unpaid Base Salary,
including salary in respect of any accrued and accumulated vacation,
due to Executive at the date of such termination, (ii) any earned and
unpaid Bonus due to Executive at the date of such termination for the
calendar year ending immediately prior to the date of such
termination, and (iii) any amounts owing, but not yet paid, pursuant
to Section 5 hereof.
Except as specifically set forth in Section 8 hereof, the Company
shall have no further obligations to Executive under this Agreement.
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(f) Release. Notwithstanding any other provision of this Agreement to the
contrary, Executive acknowledges and agrees that any and all payments
and benefits to which Executive is entitled under this Section 6 are
conditioned upon and subject to Executive's execution of a general
waiver and release, in such reasonable and customary form as shall be
prepared by the Company, of all claims Executive may have against the
Company, except as to matters covered by provisions of this Agreement
which specifically survive the termination of this Agreement.
7. No Mitigation; Employee Benefit Plans. Executive shall not be required to
mitigate amounts payable to him under this Agreement by seeking other
employment or otherwise, and there shall be no offset against amounts
payable to Executive under this Agreement on account of Executive's
subsequent employment. Amounts payable to Executive under this Agreement
shall not be offset by any claims that the Company may have against
Executive, and such amounts payable to Executive under this Agreement shall
not be affected by any other circumstances, including, without limitation,
any counterclaim, recoupment, defense, or other right that the Company may
have against Executive or others. Except as otherwise provided in this
Agreement, the termination of Executive's employment hereunder shall have
no effect on the rights and obligations of the Company and Executive under
the Company's benefit plans; provided, however, that, payments made to
Executive as a result of the termination of Executive's employment
hereunder shall not be considered as includible compensation with respect
to any employee benefit plans maintained by the Company, except to the
extent otherwise required by law.
8. Indemnification. In the event that Executive is made a party or threatened
to be made a party to any action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (a "Proceeding"), by reason of
Executive's employment with, or serving as an officer of, the Company, the
Company shall indemnify and hold Executive harmless, and defend Executive
to the fullest extent authorized by the laws of the state in which the
Company is incorporated, as the same exist and may hereafter be amended,
against any and all claims, demands, suits, judgments, assessments, and
settlements (collectively the "Claims"), including all expenses incurred or
suffered by Executive in connection therewith (excluding, however, any
legal fees incurred by Executive for Executive's own counsel, except as
otherwise provided in this Section 8), and such indemnification shall
continue as to Executive even after Executive is no longer employed by the
Company hereunder, and shall inure to the benefit of Executive's heirs,
executors, and administrators; provided, however, that, Executive promptly
gives written notice to the Company of any such Claims (although
Executive's failure to promptly give notice shall not affect the Company's
obligations under this Section 8 except to the extent that such failure
prejudices the Company or its ability to defend such Claims). The Company
shall have the right to undertake, with counsel or other representatives of
its own choosing, the defense or settlement of any Claims. In the event
that the Company shall fail to notify Executive, within ten days of its
receipt of Executive's written notice, that the Company has elected to
undertake such defense or settlement, or if at any time the Company shall
otherwise fail to diligently defend or pursue settlement of such Claims,
then Executive shall have the right to undertake the defense, compromise,
or settlement of such Claims,
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in which event the Company shall hold Executive harmless from any legal
fees incurred by Executive for Executive's counsel. Neither Executive nor
the Company shall settle any Claims without the prior written consent of
the other, which consent shall not be unreasonably withheld or delayed. In
the event that the Company submits to Executive a bona fide settlement
offer from the claimant of Claims (which settlement offer shall include as
an unconditional term thereof the giving by the claimant or the plaintiff
to Executive a release from all liability in respect of such Claims), and
Executive refuses to consent to such settlement, then thereafter the
Company's liability to Executive for indemnification hereunder with respect
to such Claims shall not exceed the settlement amount included in such bona
fide settlement offer, and Executive shall either assume the defense of
such Claims or pay the Company's attorneys' fees and other out-of-pocket
costs incurred thereafter in continuing the defense of such Claims.
Regardless of which party is conducting the defense of any such Claims, the
other party, with counsel or other representatives of its own choosing and
at its sole cost and expense, shall have the right to consult with the
party conducting the defense of such Claims and its counsel or other
representatives concerning such Claims and Executive and the respective
counsel or other representatives shall cooperate with respect to such
Claims. The party conducting the defense of any such Claims and its counsel
shall in any case keep the other party and its counsel (if any) fully
informed as to the status of such Claims and any matters relating thereto.
Executive and the Company shall provide to the other such records, books,
documents, and other materials as shall reasonably be necessary for each to
conduct or evaluate the defense of any Claims, and will generally cooperate
with respect to any matters relating thereto. This Section 8 shall remain
in effect after this Agreement is terminated, regardless of the reasons for
such termination. The indemnification provided to Executive pursuant to
this Section 8 shall not supersede or reduce any indemnification provided
to Executive under any separate agreement, or the By-Laws of the Company;
in this regard, it is intended that this Agreement shall expand and extend
Executive's rights to receive indemnification.
9. Withholding. The Company shall have the right to deduct and withhold from
all payments to Executive hereunder all payroll taxes, income tax
withholding and other federal, state and local taxes and charges which
currently are or which hereafter may be required by law to be so deducted
and withheld.
10. Non-assignability. Executive's rights and benefits hereunder are personal
to Executive, and shall not be alienated, voluntarily or involuntarily
assigned, or transferred.
11. Binding Effect. This Agreement shall be binding upon the parties hereto,
and their respective assigns, successors, executors, administrators, and
heirs. In the event the Company becomes a party to any merger,
consolidation, or reorganization, this Agreement shall remain in full force
and effect as an obligation of the Company or its successor(s) in interest.
None of the payments provided for by this Agreement shall be subject to
seizure for payment of any debts or judgments against Executive or
Executive's beneficiary or beneficiaries, nor shall Executive or any such
beneficiary or beneficiaries have any right to transfer or encumber any
right or benefit hereunder.
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12. Entire Agreement; Modification. This Agreement and the Intellectual
Property Agreement contain the entire agreement relating to Executive's
employment by the Company. These Agreements may not be changed orally, and
may be changed only by an agreement in writing signed by the parties
hereto.
13. Notices. All notices and communications hereunder shall be in writing, sent
by certified or registered mail, return receipt requested, postage prepaid;
by facsimile transmission, with proof of the time and date of receipt
retained by the transmitter; or by hand-delivery properly receipted. The
actual date of receipt as shown by the return receipt therefore, the
facsimile transmission sheet, or the hand-delivery receipt, as the case may
be, shall determine the date on which (and, in the case of a facsimile, the
time at which) notice was given. All payments required hereunder by the
Company to Executive shall be sent postage prepaid, or, at Executive's
election, shall be transferred to Executive electronically to such bank
account as Executive may designate in writing to the Company, including
designation of the applicable electronic address. The foregoing items
(other than any electronic transfer to Executive) shall be addressed as
follows (or to such other address as the Company and Executive may
designate in writing from time to time):
To the Company:
NexMed, Inc.
000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: 000-000-0000
Attention: Chief Executive Officer
To Executive:
Xx. Xxxxx X. Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
Fax: 000-000-0000
14. Governing Law; Jurisdiction. This Agreement shall be governed by, and
construed and enforced according to, the domestic laws of the State of New
Jersey without giving effect to the principles of conflict of laws thereof,
or such principles of any other jurisdiction which could cause the
application of the substantive law of any jurisdiction other than the State
of New Jersey. The Company and Executive agree that the Superior Court of
the State of New Jersey, Xxxxxx County, shall have exclusive jurisdiction
to hear and determine any dispute, which may arise under this Agreement.
15. Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, and each other provision of the Agreement
shall be severable and enforceable to the extent permitted by law.
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16. Headings. The headings of the Sections hereof are provided for convenience
only and are not to serve as a basis for interpretation or construction,
and shall not constitute a part, of this Agreement.
17. Signature in Counterparts. This Agreement may be signed in counterparts,
each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, Executive has hereunto set his hand and the Company
has caused this Agreement to be executed in its name on its behalf, all as of
the day and year first above written.
/s/ Xxxxx X. Xxxxxx
------------------------
Xxxxx X. Xxxxxx
NEXMED, INC.
By: /s/ X. Xxxxxx Mo
-----------------------------------------
Title: President and Chief Executive Officer
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Appendix A
Change in Control
For the purpose of this Agreement, a "Change in Control" shall be deemed to have
taken place if:
A. Individuals who, on the date hereof, constitute the Board (the "Incumbent
Directors") cease for any reason to constitute at least a majority of the Board,
provided that any person becoming a director subsequent to the date hereof,
whose election or nomination for election was approved by a vote of at least
two-thirds of the Incumbent Directors then on the Board (either by a specific
vote or by approval of the proxy statement of the Company in which such person
is named as a nominee for director, without written objection to such
nomination) shall be an Incumbent Director; provided, however, that, no
individual initially elected or nominated as a director of the Company as a
result of an actual or threatened election contest with respect to directors or
as a result of any other actual or threatened solicitation of proxies or
consents by or on behalf of any person other than the Board shall be deemed to
be an Incumbent Director;
B. Any "Person" (as such term is defined in Section 3(a)(9) of the Securities
Exchange Act of 1934 (the "Exchange Act") and as used in Sections 13(d)(3) and
14(d)(2) of the Exchange Act) is or becomes a "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing 25% or more of the combined voting power of the Company's
then outstanding securities eligible to vote for the election of the Board (the
"Voting Securities"); provided, however, that, the event described in this
paragraph B shall not be deemed to be a Change in Control by virtue of any of
the following acquisitions: (i) by the Company or any subsidiary of the Company
in which the Company owns more than 25% of the combined voting power of such
entity (a "Subsidiary"), (ii) by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any Subsidiary, (iii) by any
underwriter temporarily holding the Company's Voting Securities pursuant to a
public offering of such Voting Securities, (iv) pursuant to a Non-Qualifying
Transaction (as defined in paragraph C immediately below), (v) pursuant to any
acquisition by Executive or by any Person which is an "affiliate" (within the
meaning of 17 C.F.R. ss. 230.405) of Executive (an "Excluded Person");
C. The consummation of a merger, consolidation, statutory share exchange or
similar form of corporate transaction involving the Company or any of its
Subsidiaries that requires the approval of the Company's stockholders, whether
for such transaction or the issuance of securities in the transaction (a
"Business Combination"), unless immediately following such Business Combination:
(i) more than 25% of the total voting power of (A) the corporation resulting
from such Business Combination (the "Surviving Corporation"), or (B) if
applicable, the ultimate parent corporation that directly or indirectly has
beneficial ownership of 100% of the voting securities eligible to elect
directors of the Surviving Company (the "Parent Corporation"), is represented by
the Company's Voting Securities that were outstanding immediately prior to such
Business Combination (or, if applicable, is represented by shares into which the
Company's Voting Securities were converted pursuant to such Business
Combination), and such voting power among the holders thereof is in
substantially the same proportion as the voting power of the Company's Voting
Securities among the holders thereof immediately prior to the Business
Combination, (ii) no Person (other than (A) any employee benefit plan (or
related trust)
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sponsored or maintained by the Surviving Corporation or the Parent Corporation
or (B) an Excluded Person is or becomes the beneficial owner, directly or
indirectly, of 25% or more of the total voting power of the outstanding voting
securities eligible to elect directors of the Parent Corporation (or, if there
is no Parent Corporation, the Surviving Corporation) and (iii) at least a
majority of the members of the board of directors of the Parent Corporation (or,
if there is no Parent Corporation, the Surviving Corporation) following the
consummation of the Business Combination were Incumbent Directors at the time of
the Board's approval of the execution of the initial agreement providing for
such Business Combination (any Business Combination which satisfies all of the
criteria specified in (i), (ii) and (iii) above shall be deemed to be a
"Non-Qualifying Transaction");
D. A sale of all or substantially all of the Company's assets, other than to an
Excluded Person;
E. The stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company; or
F. Such other events as the Board may designate.
Notwithstanding the foregoing, a Change in Control of the Company shall
not be deemed to occur solely because any person acquires beneficial ownership
of more than 25% of the Company's Voting Securities as a result of the
acquisition of the Company's Voting Securities by the Company which reduces the
number of the Company's Voting Securities outstanding; provided, that, if after
such acquisition by the Company such person becomes the beneficial owner of
additional Company Voting Securities that increases the percentage of
outstanding Company Voting Securities beneficially owned by such person, a
Change in Control of the Company shall then occur.
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