TERM IS USED IN SECTIONS 13(D) AND 14(D) OF EXCHANGE ACT) OR
AFFILIATE THEREOF, OTHER THAN A MERGER, CONSOLIDATION OR BUSINESS COMBINATION
WHICH WOULD RESULT IN THE OUTSTANDING COMMON STOCK OF BII IMMEDIATELY PRIOR
THERETO CONTINUING TO REPRESENT (EITHER BY REMAINING OUTSTANDING OR BY BEING
CONVERTED INTO COMMON STOCK OF THE SURVIVING ENTITY OR A PARENT OR AFFILIATE
THEREOF) MORE THAN 50% OF THE OUTSTANDING COMMON STOCK OF BII, OR SUCH SURVIVING
ENTITY OR PARENT OR AFFILIATE THEREOF, OUTSTANDING IMMEDIATELY AFTER SUCH
MERGER, CONSOLIDATION OR BUSINESS COMBINATION, OR (II) A PLAN OF COMPLETE
LIQUIDATION OF BII OR AN AGREEMENT FOR THE SALE OR DISPOSITION BY BII OF ALL OR
SUBSTANTIALLY ALL OF BII'S ASSETS; OR (D) A SALE OF MORE THAN 50% OF THE ASSETS
OF BII.
5.4
"CODE".
THE INTERNAL REVENUE CODE OF 1986,
AS IT MAY BE AMENDED FROM TIME TO TIME.
5.5
"CONFIDENTIAL INFORMATION".
ALL TECHNICAL,
BUSINESS, AND OTHER INFORMATION RELATING TO THE BUSINESS OF BII OR THE COMPANY
OR ITS SUBSIDIARIES OR AFFILIATES, INCLUDING, WITHOUT LIMITATION, TECHNICAL OR
NONTECHNICAL DATA, FORMULAE, COMPILATIONS, PROGRAMS, DEVICES, METHODS,
TECHNIQUES, PROCESSES, FINANCIAL DATA, FINANCIAL PLANS, PRODUCT PLANS, AND LISTS
OF ACTUAL OR POTENTIAL CUSTOMERS OR SUPPLIERS, WHICH (I) DERIVES ECONOMIC VALUE,
ACTUAL OR POTENTIAL, FROM NOT BEING GENERALLY KNOWN TO, AND NOT BEING READILY
ASCERTAINABLE BY PROPER MEANS BY, OTHER PERSONS, AND (II) IS THE SUBJECT OF
EFFORTS THAT ARE REASONABLE UNDER THE CIRCUMSTANCES TO MAINTAIN ITS
16
SECRECY OR CONFIDENTIALITY.
SUCH INFORMATION AND COMPILATIONS OF INFORMATION
SHALL BE CONTRACTUALLY SUBJECT TO PROTECTION UNDER THIS AGREEMENT WHETHER OR NOT
SUCH INFORMATION CONSTITUTES A TRADE SECRET AND IS SEPARATELY PROTECTABLE AT LAW
OR IN EQUITY AS A TRADE SECRET.
CONFIDENTIAL INFORMATION DOES NOT INCLUDE
CONFIDENTIAL BUSINESS INFORMATION WHICH DOES NOT CONSTITUTE A TRADE SECRET UNDER
APPLICABLE LAW TWO YEARS AFTER ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT.
5.6
"DISABILITY" OR "DISABLED".
EXECUTIVE'S
INABILITY AS A RESULT OF PHYSICAL OR MENTAL INCAPACITY TO SUBSTANTIALLY PERFORM
EXECUTIVE'S DUTIES FOR THE COMPANY ON A FULL-TIME BASIS FOR A PERIOD OF SIX
(6) CONSECUTIVE MONTHS.
5.7
"PERSON".
ANY INDIVIDUAL, CORPORATION,
BANK, PARTNERSHIP, JOINT VENTURE, ASSOCIATION, JOINT-STOCK COMPANY, TRUST,
UNINCORPORATED ORGANIZATION OR OTHER ENTITY.
5.8
"PRESENT VALUE".
THE TERM "PRESENT VALUE"
ON ANY PARTICULAR DATE SHALL HAVE THE SAME MEANING AS PROVIDED IN
SECTION 280G(D)(4) OF THE CODE.
6.
TERMINATION PROCEDURES.
DURING THE
TERM OF THIS AGREEMENT, ANY PURPORTED TERMINATION OF EXECUTIVE'S EMPLOYMENT
(OTHER THAN BY REASON OF DEATH) SHALL BE COMMUNICATED BY WRITTEN NOTICE OF
TERMINATION FROM ONE PARTY HERETO TO THE OTHER PARTY HERETO IN ACCORDANCE WITH
SECTION 10.
A NOTICE OF TERMINATION FOR CAUSE IS REQUIRED TO INCLUDE THE
INFORMATION SET FORTH IN SECTION 5.2.
"DATE OF TERMINATION," WITH RESPECT TO
ANY PURPORTED TERMINATION OF EXECUTIVE'S EMPLOYMENT DURING THE TERM OF THIS
AGREEMENT, SHALL MEAN (I) IF EXECUTIVE'S EMPLOYMENT IS TERMINATED BY HIS DEATH,
THE DATE OF HIS DEATH, (II) IF EXECUTIVE'S EMPLOYMENT IS TERMINATED FOR
DISABILITY, THIRTY (30) DAYS AFTER NOTICE OF TERMINATION IS GIVEN (PROVIDED THAT
EXECUTIVE SHALL NOT HAVE