BY THE VOTE OF AT LEAST A MAJORITY
OF THE DIRECTORS THEN COMPRISING THE INCUMBENT BOARD SHALL BE DEEMED TO HAVE
BEEN A MEMBER OF THE INCUMBENT BOARD; AND PROVIDED FURTHER, THAT ANY INDIVIDUAL
WHO WAS INITIALLY ELECTED AS A DIRECTOR OF THE COMPANY AS A RESULT OF AN ACTUAL
OR THREATENED SOLICITATION BY A PERSON OTHER THAN THE COMPANY FOR THE PURPOSE OF
OPPOSING A SOLICITATION BY ANY OTHER PERSON WITH RESPECT TO THE ELECTION OR
REMOVAL OF DIRECTORS, OR ANY OTHER ACTUAL OR THREATENED SOLICITATION OF PROXIES
OR CONSENTS BY OR ON BEHALF OF ANY PERSON OTHER THAN THE BOARD SHALL NOT BE
DEEMED A MEMBER OF THE INCUMBENT BOARD.
(H)
"CODE" SHALL MEAN THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER.
(I)
"COMMENCEMENT DATE" SHALL MEAN 5:00 P.M. MOUNTAIN STANDARD TIME
ON
MARCH 9, 2006.
(J)
"COMPANY" EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, SHALL
HAVE THE MEANING SET FORTH IN THE PREAMBLE HERETO.
(K)
"COMPETITIVE ACTIVITIES" SHALL MEAN THE RESEARCH, DEVELOPMENT,
MARKETING OR SALE OF DRUG AND NONDRUG PRODUCTS WHICH ARE COMPETITIVE WITH (I)
THOSE PRODUCTS BEING MARKETED BY THE COMPANY AT THE TIME OF EMPLOYEE'S
TERMINATION OF EMPLOYMENT WITH THE COMPANY OR (II) THOSE PRODUCTS THAT EMPLOYEE
WAS AWARE WERE UNDER DEVELOPMENT BY THE COMPANY AND CONSUMING MATERIAL RESOURCES
OF THE COMPANY.
(L)
"CONFIDENTIAL INFORMATION" SHALL MEAN CONFIDENTIAL OR PROPRIETARY
TRADE SECRETS, CLIENT LISTS, CLIENT IDENTITIES AND INFORMATION, INFORMATION
REGARDING SERVICE PROVIDERS, INVESTMENT METHODOLOGIES, MARKETING DATA OR PLANS,
SALES PLANS, MANAGEMENT ORGANIZATION INFORMATION, OPERATING POLICIES OR MANUALS,
BUSINESS PLANS OR OPERATIONS OR TECHNIQUES, FINANCIAL RECORDS OR DATA, OR OTHER
FINANCIAL, COMMERCIAL, BUSINESS OR TECHNICAL INFORMATION (I) RELATING TO THE
COMPANY OR ANY OF ITS SUBSIDIARIES, OR (II) THAT THE COMPANY OR ANY OF ITS
SUBSIDIARIES MAY RECEIVE BELONGING TO SUPPLIERS, CUSTOMERS OR OTHERS WHO DO
BUSINESS WITH THE COMPANY, BUT SHALL EXCLUDE ANY INFORMATION THAT IS IN THE
PUBLIC DOMAIN OR HEREAFTER ENTERS THE PUBLIC DOMAIN, IN EACH CASE WITHOUT THE
BREACH BY EMPLOYEE OF SECTION 10(A) BELOW.
(M)
"DISABILITY" SHALL MEAN ANY PHYSICAL OR MENTAL DISABILITY OR
INFIRMITY THAT PREVENTS THE PERFORMANCE OF EMPLOYEE'S DUTIES FOR A PERIOD OF (I)
NINETY (90) CONSECUTIVE DAYS OR (II) ONE HUNDRED TWENTY (120) NON-CONSECUTIVE
DAYS DURING ANY TWELVE (12) MONTH PERIOD AND WHICH ENTITLES EMPLOYEE TO BENEFITS
UNDER THE LONG-TERM DISABILITY PLAN MAINTAINED BY THE COMPANY FOR ITS SENIOR
EXECUTIVES.
ANY QUESTION AS TO THE EXISTENCE, EXTENT OR POTENTIALITY OF
EMPLOYEE'S DISABILITY UPON WHICH EMPLOYEE AND THE COMPANY CANNOT AGREE SHALL BE
DETERMINED
3
BY A QUALIFIED, INDEPENDENT PHYSICIAN SELECTED BY THE COMPANY AND APPROVED BY
EMPLOYEE (WHICH APPROVAL SHALL NOT BE UNREASONABLY WITHHELD).
THE DETERMINATION
OF ANY SUCH PHYSICIAN SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES OF THIS
AGREEMENT.
(N)
"EMPLOYEE" SHALL HAVE THE MEANING SET FORTH IN THE PREAMBLE
HERETO.
(O)
"GOOD REASON" SHALL MEAN ANY ONE OF THE FOLLOWING EVENTS WHICH
OCCURS ON OR AFTER THE COMMENCEMENT OF EMPLOYEE'S EMPLOYMENT WITHOUT EMPLOYEE'S
WRITTEN CONSENT: (I)