STOCK OF
THE COMPANY.
FOR PURPOSES OF DETERMINING OWNERSHIP, THE ATTRIBUTION RULES OF
SECTION 318 OF THE CODE SHALL BE APPLIED BY SUBSTITUTING "FIVE PERCENT" FOR "50
PERCENT" IN SECTION 318(A)(2) AND THE RULES OF SECTIONS 414(B), 414(C) AND
414(M) OF THE CODE SHALL NOT APPLY.
FOR PURPOSES OF THIS SECTION, THE TERM
"COMPENSATION" HAS THE MEANING GIVEN SUCH TERM BY SECTION 414(Q)(4) OF THE
CODE.
THE DETERMINATION OF WHETHER YOU ARE A SPECIFIED EMPLOYEE WILL BE BASED
ON A DECEMBER 31 IDENTIFICATION DATE SUCH THAT IF YOU SATISFY THE ABOVE
DEFINITION OF SPECIFIED EMPLOYEE AT ANY TIME DURING THE 12-MONTH PERIOD ENDING
ON DECEMBER 31, YOU WILL BE TREATED AS A SPECIFIED EMPLOYEE IF YOU HAVE A
TERMINATION OF EMPLOYMENT DURING THE 12-MONTH PERIOD BEGINNING ON THE FIRST DAY
OF THE FOURTH MONTH FOLLOWING THE IDENTIFICATION DATE.
THIS DEFINITION IS
INTENDED TO COMPLY WITH THE "SPECIFIED EMPLOYEE" RULES OF
SECTION 409A(A)(2)(B)(I) OF THE CODE AND SHALL BE INTERPRETED ACCORDINGLY.
(Q)
"TERMINATION OF EMPLOYMENT"
MEANS THE TERMINATION OF YOUR EMPLOYMENT AND SERVICE WITH THE COMPANY AND ALL
AFFILIATES.
YOU WILL NOT BE CONSIDERED AS HAVING HAD A TERMINATION OF
EMPLOYMENT IF (I) YOU CONTINUE TO PROVIDE SERVICES TO THE COMPANY OR ANY
AFFILIATE AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR AT AN ANNUAL RATE THAT IS
MORE THAN 20 PERCENT OF THE SERVICES RENDERED, ON AVERAGE, DURING THE
IMMEDIATELY PRECEDING 36 MONTHS OF EMPLOYMENT (OR, IF EMPLOYED LESS THAN 36
MONTHS, SUCH LESSER PERIOD) OR (II) YOU ARE ON MILITARY LEAVE, SICK LEAVE OR
OTHER BONA FIDE LEAVE OF ABSENCE SO LONG AS THE PERIOD OF SUCH LEAVE DOES NOT
EXCEED SIX MONTHS, OR IF LONGER, SO LONG AS YOUR RIGHT TO REEMPLOYMENT WITH THE
COMPANY OR ANY AFFILIATE IS PROVIDED EITHER BY STATUTE OR BY CONTRACT.
IF THE
PERIOD OF LEAVE (I) ENDS OR (II) EXCEEDS SIX MONTHS AND YOUR RIGHT TO
REEMPLOYMENT IS NOT PROVIDED EITHER BY STATUTE OR BY CONTRACT, THE TERMINATION
OF EMPLOYMENT WILL BE DEEMED TO OCCUR ON THE FIRST DATE IMMEDIATELY FOLLOWING
SUCH SIX-MONTH PERIOD IF NOT REEMPLOYED BY THE COMPANY OR ANY AFFILIATE BEFORE
SUCH TIME AND ELIGIBILITY FOR
5
PAYMENTS AND BENEFITS HEREUNDER WILL BE DETERMINED AS OF THAT TIME.
TERMINATION
OF EMPLOYMENT SHALL BE CONSTRUED CONSISTENT WITH THE MEANING OF A "SEPARATION
FROM SERVICE" UNDER SECTION 409A OF THE CODE.
(R)
"TOTAL DISABILITY" MEANS
YOUR INABILITY, THROUGH PHYSICAL OR MENTAL ILLNESS OR ACCIDENT, TO PERFORM THE
MAJORITY OF YOUR USUAL DUTIES AND RESPONSIBILITIES HEREUNDER (AS SUCH DUTIES ARE
CONSTITUTED ON THE DATE OF THE COMMENCEMENT OF SUCH DISABILITY) IN THE MANNER
AND TO THE EXTENT REQUIRED UNDER THIS AGREEMENT FOR A PERIOD OF AT LEAST NINETY
(90) CONSECUTIVE DAYS.
TOTAL DISABILITY SHALL BE DEEMED TO HAVE OCCURRED ON THE
FIRST DAY FOLLOWING THE EXPIRATION OF SUCH NINETY (90) DAY PERIOD.
(S)
"TRADE SECRETS" MEANS ANY
AND ALL INFORMATION CONCERNING, RELATING TO AND/OR IN THE POSSESSION OF, THE
COMPANY AND/OR ITS AFFILIATES AND/OR THE BUSINESS OF THE COMPANY THAT QUALIFIES
AS A