OF SECTION 318 OF THE CODE SHALL BE APPLIED BY
SUBSTITUTING "FIVE PERCENT" FOR "50 PERCENT" IN SECTION 318(A)(2)(C) AND THE
RULES OF SECTIONS 414(B), 414(C) AND 414(M) OF THE CODE SHALL NOT APPLY.
FOR
PURPOSES OF THIS SECTION, THE TERM "COMPENSATION" HAS THE MEANING GIVEN SUCH
TERM BY SECTION 414(Q)(4) OF THE CODE.
THE DETERMINATION OF WHETHER YOU ARE A
SPECIFIED EMPLOYEE WILL BE BASED ON A DECEMBER 31 IDENTIFICATION DATE SUCH THAT
IF YOU SATISFY THE ABOVE DEFINITION OF SPECIFIED EMPLOYEE AT ANY TIME DURING THE
12-MONTH PERIOD ENDING ON DECEMBER 31, YOU WILL BE TREATED AS A SPECIFIED
EMPLOYEE IF YOU HAVE A TERMINATION OF EMPLOYMENT DURING THE 12-MONTH PERIOD
BEGINNING ON THE FIRST DAY OF THE FOURTH MONTH FOLLOWING THE IDENTIFICATION
DATE.
THIS DEFINITION IS INTENDED TO COMPLY WITH THE "SPECIFIED EMPLOYEE"
RULES OF SECTION 409A(A)(2)(B)(I) OF THE CODE AND SHALL BE INTERPRETED
ACCORDINGLY.
(Q)
"TERMINATION OF EMPLOYMENT" MEANS THE TERMINATION OF YOUR EMPLOYMENT
AND SERVICE WITH THE COMPANY AND ALL AFFILIATES.
YOU WILL NOT BE CONSIDERED AS
HAVING HAD A TERMINATION OF EMPLOYMENT IF (I) YOU CONTINUE TO PROVIDE SERVICES
TO THE COMPANY OR ANY AFFILIATE AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR AT AN
ANNUAL RATE THAT IS MORE THAN 20 PERCENT OF THE SERVICES RENDERED, ON AVERAGE,
DURING THE IMMEDIATELY PRECEDING 36 MONTHS OF EMPLOYMENT (OR, IF EMPLOYED LESS
THAN 36 MONTHS, SUCH LESSER PERIOD) OR (II) YOU ARE ON MILITARY LEAVE, SICK
LEAVE OR OTHER BONA FIDE LEAVE OF ABSENCE SO LONG AS THE PERIOD OF SUCH LEAVE
DOES NOT EXCEED SIX MONTHS, OR IF LONGER, SO LONG AS YOUR RIGHT TO REEMPLOYMENT
WITH THE COMPANY OR ANY AFFILIATE IS PROVIDED EITHER BY STATUTE OR BY CONTRACT.
IF THE PERIOD OF LEAVE (I) ENDS OR (II) EXCEEDS SIX MONTHS AND YOUR RIGHT TO
REEMPLOYMENT IS NOT PROVIDED EITHER BY STATUTE OR BY CONTRACT, THE TERMINATION
OF EMPLOYMENT WILL BE DEEMED TO OCCUR ON THE FIRST DATE IMMEDIATELY FOLLOWING
SUCH SIX-MONTH PERIOD IF NOT REEMPLOYED BY THE COMPANY OR ANY AFFILIATE BEFORE
SUCH TIME AND ELIGIBILITY FOR PAYMENTS AND BENEFITS HEREUNDER WILL BE DETERMINED
AS OF THAT TIME.
TERMINATION OF EMPLOYMENT SHALL BE CONSTRUED CONSISTENT WITH
THE MEANING OF A "SEPARATION FROM SERVICE" UNDER SECTION 409A OF THE CODE.
(R)
"TOTAL DISABILITY" MEANS YOUR INABILITY, THROUGH PHYSICAL OR MENTAL
ILLNESS OR ACCIDENT, TO PERFORM THE MAJORITY OF YOUR USUAL DUTIES AND
RESPONSIBILITIES HEREUNDER (AS SUCH DUTIES ARE CONSTITUTED ON THE DATE OF THE
COMMENCEMENT OF SUCH DISABILITY) IN THE MANNER AND TO THE EXTENT REQUIRED UNDER
THIS AGREEMENT FOR A PERIOD OF AT LEAST NINETY
5
(90) CONSECUTIVE DAYS.
TOTAL DISABILITY SHALL BE DEEMED TO HAVE OCCURRED ON THE
FIRST DAY FOLLOWING THE EXPIRATION OF SUCH NINETY (90) DAY PERIOD.
(S)
"TRADE SECRETS" MEANS ANY AND ALL INFORMATION CONCERNING, RELATING TO
AND/OR IN THE POSSESSION OF, THE COMPANY AND/OR ITS AFFILIATES AND/OR THE
BUSINESS OF THE COMPANY THAT QUALIFIES AS A TRADE SECRET AS DEFINED BY THE LAWS
OF THE STATE OF GEORGIA