directors are Incumbent
Directors.
"Incumbent Directors" will mean directors who either (A) are
directors of the Company as of the Effective Date, or (B) are elected, or
nominated for election, to the Board with the affirmative votes of at least a
majority of the Incumbent Directors at the time of such election or nomination
(but will not include an individual whose election or nomination is in
connection with an actual or threatened Proxy contest relating to the election
of directors to the Company).
(C)
CONTINUANCE PERIOD.
FOR PURPOSES OF THIS
AGREEMENT, "CONTINUANCE PERIOD" WILL MEAN THE PERIOD COMMENCING UPON THE
TERMINATION OF EXECUTIVE'S EMPLOYMENT AND ENDING TWELVE (12) MONTHS LATER.
(D)
DISABILITY.
"DISABILITY" WILL MEAN
EXECUTIVE'S TOTAL AND PERMANENT DISABILITY AS DEFINED IN SECTION 22(E)(3) OF THE
CODE UNLESS THE COMPANY MAINTAINS A LONG-TERM DISABILITY PLAN AT THE TIME OF
EXECUTIVE'S TERMINATION, IN WHICH CASE THE DETERMINATION OF DISABILITY UNDER
SUCH PLAN WILL BE CONSIDERED THE DEFINITION OF "DISABILITY" FOR PURPOSES OF THIS
AGREEMENT.
(E)
GOOD REASON.
"GOOD REASON" WILL MEAN
EXECUTIVE'S TERMINATION OF EMPLOYMENT WITHIN NINETY (90) DAYS FOLLOWING THE 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 OF EXECUTIVE'S
AUTHORITY, DUTIES, OR RESPONSIBILITIES, RELATIVE TO EXECUTIVE'S AUTHORITY,
DUTIES, OR RESPONSIBILITIES IN EFFECT IMMEDIATELY PRIOR TO SUCH REDUCTION;
(II)
A MATERIAL DIMINUTION BY THE COMPANY IN
THE BASE SALARY OF EXECUTIVE AS IN EFFECT IMMEDIATELY PRIOR TO SUCH REDUCTION,
OTHER THAN PURSUANT TO A REDUCTION THAT ALSO IS APPLIED TO SUBSTANTIALLY ALL
OTHER EMPLOYEES OF THE COMPANY;
(III)
THE RELOCATION OF EXECUTIVE TO A FACILITY OR
A LOCATION MORE THAN THIRTY (30) MILES FROM EXECUTIVE'S THEN PRESENT LOCATION;
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.
(F)
IN CONNECTION WITH A CHANGE OF CONTROL.
FOR PURPOSES OF THIS AGREEMENT, A TERMINATION OF EXECUTIVE'S EMPLOYMENT WITH THE
COMPANY IS "IN CONNECTION WITH A CHANGE OF CONTROL" IF EXECUTIVE'S EMPLOYMENT IS
TERMINATED WITHIN TWENTY-FOUR (24) MONTHS FOLLOWING A CHANGE OF CONTROL.
(G)
RETIREMENT.
FOR PURPOSES OF THIS AGREEMENT,
"RETIREMENT" WILL MEAN EXECUTIVE'S VOLUNTARY TERMINATION AT ANY TIME FOLLOWING
THE DATE THAT IS THIRTY (30) MONTHS FROM THE EFFECTIVE DATE, PROVIDED EXECUTIVE
HAS GIVEN THE COMPANY NINETY (90) DAYS NOTICE OF HIS INTENT TO TERMINATE HIS
EMPLOYMENT DUE TO HIS RETIREMENT AND THE COMPANY HAS CONSENTED TO SUCH
TERMINATION.
13.
INDEMNIFICATION.
SUBJECT TO APPLICABLE LAW,
EXECUTIVE WILL BE PROVIDED INDEMNIFICATION TO THE MAXIMUM EXTENT PERMITTED BY
THE COMPANY'S ARTICLES OF INCORPORATION OR BYLAWS, INCLUDING, IF APPLICABLE, ANY
DIRECTORS AND OFFICERS INSURANCE POLICIES, WITH SUCH INDEMNIFICATION TO BE ON
TERMS DETERMINED BY THE BOARD OR ANY OF ITS COMMITTEES, BUT ON TERMS NO LESS
FAVORABLE THAN PROVIDED