| ||(v) || |
any other benefits as required by applicable law.
For purposes of this Agreement, Change in Control means the occurrence of any of the following:
| ||(i) || |
any one person, or more than one person acting as a group (Person), acquires ownership of the stock of the Company that, together with the stock held by such Person, constitutes more than 50% of the total voting power of the stock of the Company, except that any change in the ownership of the stock of the Company as a result of a private financing of the Company that is approved by the Board will not be considered a Change in Control; or
| ||(ii) || |
the sale of all or substantially all assets of the Company.
For purposes of this definition, Persons will be considered to be acting as a group if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction with the Company. Further and for the avoidance of doubt, a transaction will not constitute a Change in Control if: (i) its sole purpose is to re-domicile the Company in a jurisdiction other than its original jurisdiction of incorporation, or (ii) its sole purpose is to create a holding company that will be owned in substantially the same proportions by the persons who held the Companys securities immediately before such transaction. With regard to any payment considered to be nonqualified deferred compensation under Section 409A (as defined below), to the extent applicable, that is payable upon a Change in Control, to avoid the imposition of an additional tax, interest or penalty under Section 409A of the Internal Revenue Code of 1986, as amended, no amount will be payable unless such change in control constitutes a change in control event within the meaning of Section 1.409A-3(i)(5) of the Treasury Regulations.
11.5 Release. The parties acknowledge and agree that damages which will result to the Executive for Termination without Cause by the Company or other breach of this Agreement by the Company shall be extremely difficult or impossible to establish or prove, and agree that the Severance Payment shall constitute liquidated damages for any breach of this Agreement by the Company through the date of termination. The Executive agrees that, except for such other payments and benefits to which the Executive may be entitled as expressly provided by the terms of this Agreement or any applicable benefit plan, such liquidated damages shall be in lieu of all other claims that the Executive may make by reason of termination of his employment or any such breach of this Agreement and that, as a condition to receiving the Severance Payment, the Executive will execute a release of claims in a form reasonably satisfactory to the Company.
12. Indemnification of Executive.
12.1 Indemnification. In the event that (a) the Executive was or is a party or is threatened to be made a party to any Proceeding (as defined below) by reason of the Executives Corporate Status (as defined below) or (b) the Executive was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company to procure a judgment in its favor by reason of the Executives Corporate Status, the Executive shall be indemnified by the Company against all Expenses (as defined below) and Liabilities (as defined below) incurred or paid by the Executive in connection with such Proceeding (referred to herein as Indemnifiable Amounts). For purposes hereof, the terms (i) Proceeding means any threatened, pending or completed claim, action, suit, arbitration, alternate dispute resolution process, investigation, administrative hearing, appeal, or any other proceeding, whether civil, criminal, administrative, arbitrative or investigative, whether formal or informal, (ii) Corporate Status means the status of the Executive as an employee and/or director of the Company, as applicable, (iii) Expenses means all fees, costs and expenses incurred in connection with any Proceeding, including, without limitation, reasonable attorneys fees, disbursements and retainers, fees and disbursements of expert witnesses, private investigators and professional advisors (including, without limitation, accountants and investment bankers), court costs, transcript costs, fees of experts, travel expenses, duplicating, printing and binding costs, telephone and fax transmission charges, postage, delivery services, secretarial services and other disbursements and expenses and (iv) Liabilities means judgments, damages, liabilities, losses, penalties, excise taxes, and fines.