AND IN
PLACE OF (I) THE ANNUAL BONUS PAYMENT PROVIDED IN
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SECTION 3.2 AN AMOUNT IN CASH EQUAL TO 0.9 MULTIPLIED BY BASE SALARY FOR THE
YEAR IN WHICH EMPLOYMENT IS TERMINATED AND (II) THE LONG TERM INCENTIVE PAYOUT
PROVIDED IN SECTION 3.3 FOR THE FISCAL YEAR IN WHICH EMPLOYMENT IS TERMINATED
UNDER THIS SECTION.
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4.7
CHANGE IN CONTROL.
(A)
SEVERANCE AGREEMENT CONTINUED.
THE LETTER AGREEMENT DATED
JULY 24, 2003 AS SUBSEQUENTLY AMENDED, (SEVERANCE AGREEMENT) BETWEEN THE COMPANY
AND EMPLOYEE PROVIDING CERTAIN BENEFITS TO EMPLOYEE UPON A CHANGE IN CONTROL OF
THE COMPANY IS CONTINUED AND UPON A CHANGE IN CONTROL OF THE COMPANY THE
SEVERANCE AGREEMENT SHALL APPLY AND HAVE PRIORITY OVER THIS AGREEMENT SO THAT IN
THE EVENT OF ANY CONFLICT BETWEEN THIS AGREEMENT AND THE SEVERANCE AGREEMENT THE
SEVERANCE AGREEMENT SHALL APPLY.
ANY PAYMENTS MADE OR BENEFITS PROVIDED
PURSUANT TO THE SEVERANCE AGREEMENT ARE NOT TO BE DUPLICATED BY ANY REQUIREMENTS
OF THIS AGREEMENT.
(B)
DEFINITION.
AS USED IN THIS AGREEMENT THE TERM "CHANGE IN CONTROL
OF THE COMPANY" SHALL HAVE THE MEANING EXPRESSED IN THE SEVERANCE AGREEMENT.
4.8
NOTICE OF TERMINATION.
ANY PURPORTED
TERMINATION OF EMPLOYMENT BY THE COMPANY OR BY EMPLOYEE, OTHER THAN FOR DEATH,
MAY BE COMMUNICATED ORALLY OR IN WRITING.
IF COMMUNICATED ORALLY, SUCH
COMMUNICATION SHALL BE FOLLOWED WITHIN 10 DAYS BY A WRITTEN COMMUNICATION WHICH,
AND IF COMMUNICATED BY WRITTEN COMMUNICATION THE COMMUNICATION, SHALL INDICATE
THE SPECIFIC TERMINATION PROVISIONS IN THIS AGREEMENT RELIED UPON, SHALL SET
FORTH IN REASONABLE DETAIL THE FACTS AND CIRCUMSTANCES CLAIMED TO PROVIDE A
BASIS FOR TERMINATION OF EMPLOYMENT UNDER THE PROVISIONS SO INDICATED AND SHALL
STATE AN EFFECTIVE DATE OF TERMINATION.
4.9
DATE OF TERMINATION, ETC.
"DATE OF
TERMINATION" SHALL MEAN: (I) IF EMPLOYMENT IS TERMINATED FOR DISABILITY, THE
DATE AS PROVIDED IN SECTION 4.4(A), AND (II) IF EMPLOYMENT IS TERMINATED FOR
CAUSE PURSUANT TO SECTION 4.1 OR FOR ANY OTHER REASON (OTHER THAN DISABILITY),
THE DATE SPECIFIED IN THE NOTICE OF TERMINATION (WHICH, IN THE CASE OF A
TERMINATION PURSUANT TO SECTION 4.1 SHALL BE THE END OF A CALENDAR MONTH BUT NOT
LESS THAN 15 DAYS).
AMOUNTS PAID UNDER THIS SECTION ARE IN ADDITION TO ALL
OTHER AMOUNTS DUE UNDER THIS AGREEMENT AND SHALL NOT BE OFFSET AGAINST OR REDUCE
ANY OTHER AMOUNTS DUE UNDER THIS AGREEMENT.
4.10
TERMINATION BY EMPLOYEE.
EMPLOYEE MAY TERMINATE
THIS AGREEMENT BY RESIGNING AS BOTH EXECUTIVE CHAIRMAN OF THE BOARD AND CHIEF
FINANCIAL OFFICER UPON AT LEAST 30 DAYS PRIOR WRITTEN NOTICE OF THE EFFECTIVE
DATE OF TERMINATION.
IN SUCH EVENT THE COMPANY SHALL CONTINUE EMPLOYEE'S BASE
SALARY AND ALL FRINGE BENEFITS TO THE EFFECTIVE DATE OF TERMINATION.
TERMINATION OF THIS AGREEMENT UNDER THIS SECTION DOES NOT AFFECT THE COMPANY'S
OBLIGATION TO MAKE ALL PAYMENTS TO EMPLOYEE WHICH WERE FIXED AND DETERMINED
PRIOR TO THE EFFECTIVE DATE OF TERMINATION.
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5.
CONFIDENTIAL INFORMATION.
5.1
DEFINITION.
CONFIDENTIAL INFORMATION MEANS:
(A)
ANY AND ALL (I) TRADE SECRETS CONCERNING THE BUSINESS AND AFFAIRS
OF THE COMPANY, PRODUCT SPECIFICATIONS,