ARTICLE I.
CERTAIN DEFINITIONS
As used in this Agreement, the terms specified below shall have the following
meanings:
1.1.
"ACCRUED OBLIGATIONS" MEANS, AS OF ANY DATE, THE SUM OF
EXECUTIVE'S (A) BASE SALARY THAT IS ACCRUED BUT NOT YET PAID AS OF THE
TERMINATION DATE, (B) BONUS EARNED BUT NOT YET PAID WITH RESPECT TO ANY
PERFORMANCE PERIOD ENDED PRIOR TO THE TERMINATION DATE, (C) ACCRUED BUT UNPAID
PAID VACATION OR PAID TIME OFF, AND (D) ANY OTHER AMOUNTS AND BENEFITS WHICH ARE
THEN DUE TO BE PAID OR PROVIDED TO EXECUTIVE BY THE COMPANY, BUT HAVE NOT YET
BEEN PAID OR PROVIDED.
1.2.
"AFFILIATE" MEANS ANY PERSON THAT DIRECTLY OR INDIRECTLY CONTROLS,
IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH, THE COMPANY.
FOR PURPOSES OF
THIS DEFINITION THE TERM "CONTROL" WITH RESPECT TO ANY PERSON MEANS THE POWER TO
DIRECT OR CAUSE THE DIRECTION OF MANAGEMENT OR POLICIES OF SUCH PERSON, DIRECTLY
OR INDIRECTLY, WHETHER THROUGH THE OWNERSHIP OF VOTING SECURITIES, BY CONTRACT
OR OTHERWISE.
1.3.
"AGREEMENT DATE" HAS THE MEANING DEFINED FOR THAT TERM IN THE
INTRODUCTION TO THIS AGREEMENT.
1.4.
"AGREEMENT TERM" MEANS THE PERIOD BEGINNING ON THE AGREEMENT DATE
AND CONTINUING THEREAFTER SO LONG AS EXECUTIVE IS EMPLOYED BY THE COMPANY OR BY
A SUCCESSOR TO THE COMPANY THAT ASSUMES THIS AGREEMENT PURSUANT TO SECTION 9.2.
1.5.
"ARTICLE" MEANS AN ARTICLE OF THIS AGREEMENT.
1.6.
"BASE SALARY" HAS THE MEANING DEFINED FOR THAT TERM IN SECTION
2.2(A).
1.7.
"BENEFICIAL OWNER" MEANS SUCH TERM AS DEFINED IN RULE 13D-3 UNDER
THE EXCHANGE ACT.
1.8.
"BENEFICIARY" HAS THE MEANING DEFINED FOR THAT TERM IN SECTION
10.3.
1.9.
"BOARD" MEANS THE BOARD OF DIRECTORS OF THE COMPANY, OR, FROM AND
AFTER THE EFFECTIVE DATE OF A REORGANIZATION TRANSACTION, THE BOARD OF DIRECTORS
OF THE SURVIVING CORPORATION.
1.10.
"BONUS" HAS THE MEANING DEFINED FOR THAT TERM IN SECTION 2.2(B).
1.11.
"CAUSE" MEANS ANY ONE OR MORE OF THE FOLLOWING:
(A)
EXECUTIVE'S WILLFUL VIOLATION OF ANY LAW OR REGULATION APPLICABLE
TO THE BUSINESS OF THE COMPANY;
(B)
EXECUTIVE'S CONVICTION OF OR PLEA OF NO CONTEST TO ANY FELONY;
(C)
EXECUTIVE'S COMMISSION OF ANY WILLFUL ACT INVOLVING MORAL
TURPITUDE OR COMMON LAW FRAUD WHETHER OR NOT RELATED TO THE BUSINESS OF THE
COMPANY;
(D)
EXECUTIVE'S WILLFUL MISCONDUCT THAT IS MATERIALLY INJURIOUS TO THE
FINANCIAL CONDITION OR BUSINESS REPUTATION OF THE COMPANY OR OTHERWISE IS
MATERIALLY INJURIOUS TO THE COMPANY;
(E)
ANY ACT OF GROSS NEGLIGENCE IN EXECUTIVE'S PERFORMANCE OF HIS
DUTIES AS AN EMPLOYEE;
(F)
ANY VIOLATION BY EXECUTIVE OF THE "BEHAVIORS AT WORK" PROVISIONS
OF THE COMPANY'S EMPLOYEE MANUAL; AND
provided, however that an act or omission described in clause (e) or (f) shall
not constitute Cause unless the Company first gives Executive 30 days' advance
written notice of such act or omission that specifically refers to this Section,
and thereafter shall not constitute Cause if Executive cures such act or
omission to the fullest extent that it is curable.
1.12.
"CHANGE OF CONTROL" MEANS, EXCEPT AS OTHERWISE PROVIDED