PAYMENTS (AND ANY DEFERRED COMPENSATION
BENEFITS) WOULD OTHERWISE HAVE BEEN PAYABLE WITHIN THE FIRST SIX (6) MONTHS
4
FOLLOWING EXECUTIVE'S TERMINATION OF EMPLOYMENT PURSUANT TO SECTION 6(D)(I)
ABOVE, WILL BECOME PAYABLE THE DATE THAT IS SIX (6) MONTHS AND ONE (1) DAY
FOLLOWING THE DATE OF EXECUTIVE'S TERMINATION OF EMPLOYMENT.
ALL SUBSEQUENT
SEVERANCE PAYMENTS (AND ANY DEFERRED COMPENSATION BENEFITS), IF ANY, WILL BE
PAYABLE AS PROVIDED IN SECTION 6(D)(I) OF THIS AGREEMENT.
IT IS THE INTENT OF
THIS PROVISION TO COMPLY WITH THE REQUIREMENTS OF SECTION 409A, AND ANY
AMBIGUITIES HEREIN WILL BE INTERPRETED TO SO COMPLY.
7.
DEFINITIONS.
(A)
CAUSE.
FOR PURPOSES OF THIS AGREEMENT, "CAUSE" IS DEFINED AS (I)
EXECUTIVE ENGAGING IN KNOWING AND INTENTIONAL ILLEGAL CONDUCT THAT IS INJURIOUS
TO THE COMPANY; (II) EXECUTIVE'S CONVICTION OF, OR PLEA OF NOLO CONTENDERE TO, A
FELONY; (III) EXECUTIVE'S GROSS MISCONDUCT; OR (IV) EXECUTIVE'S CONTINUED
SUBSTANTIAL VIOLATIONS OF HIS EMPLOYMENT DUTIES AFTER EXECUTIVE HAS RECEIVED A
WRITTEN DEMAND FOR PERFORMANCE FROM THE COMPANY WHICH SPECIFICALLY SETS FORTH
THE FACTUAL BASIS FOR THE COMPANY'S BELIEF THAT EXECUTIVE HAS NOT SUBSTANTIALLY
PERFORMED HIS DUTIES.
(B)
CHANGE OF CONTROL.
FOR PURPOSES OF THIS AGREEMENT, "CHANGE OF
CONTROL" OF THE COMPANY IS DEFINED AS: (I) ANY "PERSON" (AS SUCH TERM IS USED IN
SECTIONS 13(D) AND 14(D) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED) IS
OR BECOMES THE "BENEFICIAL OWNER" (AS DEFINED IN RULE 13D-3 UNDER SAID ACT),
DIRECTLY OR INDIRECTLY, OF SECURITIES OF THE COMPANY REPRESENTING FIFTY PERCENT
(50%) OR MORE OF THE TOTAL VOTING POWER REPRESENTED BY THE COMPANY'S THEN
OUTSTANDING VOTING SECURITIES; OR (II) A CHANGE IN THE COMPOSITION OF THE BOARD
OCCURRING WITHIN A TWO-YEAR PERIOD, AS A RESULT OF WHICH FEWER THAN A MAJORITY
OF THE DIRECTORS ARE INCUMBENT DIRECTORS.
"INCUMBENT DIRECTORS" WILL MEAN
DIRECTORS WHO EITHER (A) ARE DIRECTORS OF THE COMPANY AS OF THE DATE HEREOF, 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); OR (III) THE DATE OF THE
CONSUMMATION OF A MERGER OR CONSOLIDATION OF THE COMPANY WITH ANY OTHER
CORPORATION THAT HAS BEEN APPROVED BY THE SHAREHOLDERS OF THE COMPANY, OTHER
THAN A MERGER OR CONSOLIDATION WHICH WOULD RESULT IN THE VOTING SECURITIES OF
THE COMPANY OUTSTANDING IMMEDIATELY PRIOR THERETO CONTINUING TO REPRESENT
(EITHER BY REMAINING OUTSTANDING OR BY BEING CONVERTED INTO VOTING SECURITIES OF
THE SURVIVING ENTITY) MORE THAN FIFTY PERCENT (50%) OF THE TOTAL VOTING POWER
REPRESENTED BY THE VOTING SECURITIES OF THE COMPANY OR SUCH SURVIVING ENTITY
OUTSTANDING IMMEDIATELY AFTER SUCH MERGER OR CONSOLIDATION, OR THE SHAREHOLDERS
OF THE COMPANY APPROVE A PLAN OF COMPLETE LIQUIDATION OF THE COMPANY; OR
(IV) THE DATE OF THE CONSUMMATION OF
THE SALE OR DISPOSITION BY THE COMPANY OF