Common use of Change of Control of the Company Clause in Contracts

Change of Control of the Company. If, prior to March 6, 2000, there is a Company Change of Control and on the effective date of such Company Change of Control (the "Effective Date") the Executive is a regular full-time employee of the Company (and has been so employed continuously since the date of this agreement), then the Company shall pay to the Executive within twenty (20) days after the Effective Date an amount equal to the product of (a) the number of Appreciation Units set forth in Paragraph 1 multiplied by (b) the positive difference, if any, resulting from the subtraction of (I) $3.0625 from (II) the lesser of (i) the Average Price or (ii) $9.0625. If there is no positive difference resulting from the subtraction referred to in the preceding sentence, then no payment shall be due or made to the Executive under this Paragraph 5. For purposes of this Paragraph 5, "Average Price" means the arithmetic average of the closing prices of the Common Stock of Holdings on the American Stock Exchange on the twenty (20) most recent trading days prior to the Effective Date on which the Common Stock of Holdings was traded on such Exchange; provided, that if there are fewer than twenty (20) trading days between the date of the first public announcement of a proposed Company Change of Control (the "Announcement Date") and the Effective Date, then only the trading days following the Announcement Date shall be taken into account for purposes of determining the Average Price; provided, further, that if the Effective Date occurs on or before the Announcement Date, then the Average Price shall be the fair market value of the consideration received or to be received by Holdings or the stockholders of Holdings, as the case may be, in connection with or by reason of the transaction resulting or which will result in the Company Change of Control, in either case determined on a per share basis with respect to the shares of Common Stock of Holdings then outstanding (including, to the extent applicable, shares of Common Stock issuable upon the exercise of outstanding options to purchase shares of the Common Stock of Holdings); and provided further, that if the company Change of Control involves an issuer tender offer or other "going private" transaction, then the Average Price shall be the amount per outstanding share of Common Stock of Holdings paid or to be paid by the purchaser in such issuer tender offer or other "going private" transaction. If the Common Stock of Holdings is not listed on the American Stock Exchange during the relevant period prior to the Effective Date, then such closing prices shall be determined by reference to the principal market or exchange in or on which the Common Stock of Holdings is traded during the relevant period. For purposes of this Paragraph 5, "Company Change of Control" means the happening of any of the following events: