COURT FOR THE SOUTHERN DISTRICT OF TEXAS MAY BE
ENTERED UPON THE AWARD MADE PURSUANT TO THE ARBITRATION.
14.
DEFINITIONS.
FOR PURPOSES OF THIS AGREEMENT, THE FOLLOWING TERMS
SHALL HAVE THE MEANINGS INDICATED BELOW:
(A)
"ACCOUNTING FIRM" HAS THE MEANING SET FORTH IN SECTION 5.2(B)
HEREOF.
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(B)
"ACCRUED OBLIGATION" HAS THE MEANING SET FORTH IN SECTION 8(A) OF
THE EMPLOYMENT AGREEMENT.
(C)
"AFFILIATE" SHALL HAVE THE MEANING SET FORTH IN RULE 12B-2
PROMULGATED UNDER SECTION 12 OF THE EXCHANGE ACT.
(D)
"AUDITOR" SHALL MEAN THE ACCOUNTING FIRM WHICH WAS, IMMEDIATELY
PRIOR TO THE CHANGE IN CONTROL, THE COMPANY'S INDEPENDENT AUDITOR.
(E)
"BASE AMOUNT" SHALL HAVE THE MEANING SET FORTH IN SECTION
280G(B)(3) OF THE CODE.
(F)
"BOARD" SHALL MEAN THE BOARD OF DIRECTORS OF THE COMPANY.
(G)
"BUSINESS COMBINATION" HAS THE MEANING SET FORTH IN SECTION
14(F)(III) HEREOF.
(H)
"CAUSE" FOR TERMINATION BY THE COMPANY OF THE EXECUTIVE'S
EMPLOYMENT SHALL MEAN (I) THE WILLFUL AND CONTINUED FAILURE BY THE EXECUTIVE TO
SUBSTANTIALLY PERFORM THE EXECUTIVE'S DUTIES WITH THE COMPANY (OTHER THAN ANY
SUCH FAILURE RESULTING FROM THE EXECUTIVE'S INCAPACITY DUE TO PHYSICAL OR MENTAL
ILLNESS OR ANY SUCH ACTUAL OR ANTICIPATED FAILURE AFTER THE ISSUANCE OF A NOTICE
OF TERMINATION FOR GOOD REASON BY THE EXECUTIVE PURSUANT TO SECTION 6.1 HEREOF)
AFTER A WRITTEN DEMAND FOR SUBSTANTIAL PERFORMANCE IS DELIVERED TO THE EXECUTIVE
BY THE BOARD, WHICH DEMAND SPECIFICALLY IDENTIFIES THE MANNER IN WHICH THE BOARD
BELIEVES THAT THE EXECUTIVE HAS NOT SUBSTANTIALLY PERFORMED THE EXECUTIVE'S
DUTIES, OR (II) THE WILLFUL ENGAGING BY THE EXECUTIVE IN CONDUCT WHICH IS
DEMONSTRABLY AND MATERIALLY INJURIOUS TO THE COMPANY OR ITS SUBSIDIARIES,
MONETARILY OR OTHERWISE.
FOR PURPOSES OF CLAUSES (I) AND (II) OF THIS
DEFINITION, (X) NO ACT, OR FAILURE TO ACT, ON THE EXECUTIVE'S PART SHALL BE
DEEMED "WILLFUL" UNLESS DONE, OR OMITTED TO BE DONE, BY THE EXECUTIVE IN BAD
FAITH AND WITHOUT REASONABLE BELIEF THAT THE EXECUTIVE'S ACT, OR FAILURE TO ACT,
WAS IN THE BEST INTEREST OF THE COMPANY AND (Y) THE EXECUTIVE HAS RECEIVED
WRITTEN NOTICE FROM THE COMPANY OF THE SPECIFIC CONDUCT ASSERTED AS CAUSE FOR
TERMINATION AND HAS THIRTY (30) BUSINESS DAYS TO REMEDY ANY SUCH OCCURRENCE
OTHERWISE CONSTITUTING CAUSE.
(I)
A "CHANGE IN CONTROL" SHALL BE DEEMED TO HAVE OCCURRED IF THE
EVENT SET FORTH IN ANY ONE OF THE FOLLOWING PARAGRAPHS SHALL HAVE OCCURRED:
(I)
THE ACQUISITION BY ANY PERSON OF BENEFICIAL OWNERSHIP (WITHIN THE
MEANING OF RULE 13D-3 PROMULGATED UNDER THE EXCHANGE ACT) OF 35% OR MORE OF
EITHER (A) THE THEN-OUTSTANDING SHARES OF COMMON STOCK OF THE COMPANY (THE
"OUTSTANDING COMPANY COMMON STOCK") OR (B) 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 SECTION 14(F), THE FOLLOWING
ACQUISITIONS SHALL NOT CONSTITUTE A CHANGE OF CONTROL:
(I) ANY
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ACQUISITION DIRECTLY FROM THE COMPANY, (II) ANY ACQUISITION BY THE COMPANY,
(III) ANY ACQUISITION BY ANY