ALL OR SUBSTANTIALLY ALL THE COMPANY'S ASSETS.
(C)
DISABILITY.
FOR PURPOSES OF THIS AGREEMENT, "DISABILITY" MEANS
THE INABILITY OF EXECUTIVE, DUE TO A PHYSICAL OR MENTAL IMPAIRMENT, TO PERFORM
THE ESSENTIAL FUNCTIONS OF EXECUTIVE'S POSITION, WITH OR WITHOUT REASONABLE
ACCOMMODATION, FOR A PERIOD OF NINETY (90) DAYS.
WHETHER EXECUTIVE IS DISABLED
WILL BE DETERMINED BY THE COMPANY BASED ON EVIDENCE PROVIDED BY ONE OR MORE
PHYSICIANS SELECTED BY THE COMPANY.
(D)
GOOD REASON TERMINATION.
FOR PURPOSES OF THIS AGREEMENT, "GOOD
REASON TERMINATION" MEANS EXECUTIVE'S TERMINATION OF EMPLOYMENT WITHIN NINETY
(90) DAYS FOLLOWING THE
5
END OF THE CURE PERIOD (AS DEFINED BELOW) AS A RESULT OF THE OCCURRENCE OF ANY
OF THE FOLLOWING WITHOUT THE EXECUTIVE'S CONSENT: (I) A MATERIAL DIMINUTION IN
EXECUTIVE'S BASE SALARY, EXCEPT FOR REDUCTIONS THAT ARE IN PROPORTION TO ANY
SALARY REDUCTION PROGRAM APPROVED BY THE BOARD THAT AFFECTS A MAJORITY OF THE
SENIOR EXECUTIVES OF THE COMPANY; (II) A MATERIAL DIMINUTION IN EXECUTIVE'S
AUTHORITY, DUTIES, OR RESPONSIBILITIES; (III) A MATERIAL DIMINUTION IN THE
AUTHORITY, DUTIES, OR RESPONSIBILITIES OF THE SUPERVISOR TO WHOM EXECUTIVE IS
REQUIRED TO REPORT, INCLUDING A REQUIREMENTS THAT EXECUTIVE REPORT TO A
CORPORATE OFFICER OR EMPLOYEE INSTEAD OF REPORTING DIRECTLY TO THE BOARD; (IV) A
MATERIAL DIMINUTION IN THE BUDGET OVER WHICH EXECUTIVE RETAINS AUTHORITY; (V) A
MATERIAL CHANGE IN THE GEOGRAPHIC LOCATION AT WHICH EXECUTIVE MUST PERFORM HIS
SERVICES OF NOT LESS THAN FIFTY (50) MILES FROM THE COMPANY'S PRIMARY PLACE OF
BUSINESS IMMEDIATELY PRIOR TO SUCH RELOCATION; OR (VI) ANY OTHER ACTION OR
INACTION THAT CONSTITUTES A MATERIAL BREACH BY THE COMPANY OF THIS AGREEMENT;
PROVIDED, HOWEVER, THAT EXECUTIVE MUST PROVIDE WRITTEN NOTICE TO THE BOARD OF
THE CONDITION THAT COULD CONSTITUTE A "GOOD REASON" EVENT WITHIN NINETY (90)
DAYS OF THE INITIAL EXISTENCE OF SUCH CONDITION AND SUCH CONDITION MUST NOT HAVE
BEEN REMEDIED BY THE COMPANY WITHIN THIRTY (30) DAYS (THE "CURE PERIOD") OF SUCH
WRITTEN NOTICE.
(E)
SECTION 409A LIMIT.
FOR THE PURPOSES OF THIS AGREEMENT, "SECTION
409A LIMIT" MEANS THE LESSER OF TWO (2) TIMES: (I) THE EXECUTIVE'S ANNUALIZED
COMPENSATION BASED UPON THE EXECUTIVE'S ANNUAL RATE OF PAY (UNLESS OTHERWISE
DEFINED BY APPLICABLE GUIDANCE ISSUED BY THE INTERNAL REVENUE SERVICE AFTER THE
DATE OF THIS AGREEMENT, "ANNUAL RATE OF PAY" SHALL INCLUDE BASE SALARY AND BONUS
COMPENSATION) PAID TO EXECUTIVE DURING THE COMPANY'S TAXABLE YEAR PRECEDING THE
COMPANY'S TAXABLE YEAR DURING WHICH SUCH TERMINATION OF EMPLOYMENT OCCURS; OR
(II) THE MAXIMUM AMOUNT THAT MAY BE TAKEN INTO ACCOUNT UNDER A QUALIFIED PLAN
PURSUANT TO SECTION 401(A)(17) FOR THE YEAR IN WHICH THE EXECUTIVE'S EMPLOYMENT
IS TERMINATED.
(F)
SEVERANCE PAYMENTS.
FOR PURPOSES OF THIS AGREEMENT, "SEVERANCE
PAYMENTS" SHALL MEAN PAYMENTS IN CASH, AND LESS ALL APPLICABLE WITHHOLDING
TAXES, EQUAL TO THE SUM OF (I) TWELVE (12) MONTHS OF THE EXECUTIVE'S BASE
SALARY, AS THEN IN EFFECT, FOR ANY TERMINATIONS PURSUANT TO SECTION 6(A), OR
FIFTEEN (15) MONTHS OF THE EXECUTIVE'S BASE SALARY, AS THEN IN EFFECT, FOR ANY
TERMINATIONS PURSUANT TO SECTION 6(C), AND (II) THE