policies or practices provided by the Parent Company and for which Executive may
otherwise qualify.
Except as otherwise expressly provided herein, amounts that
are vested benefits or that Executive is otherwise entitled to receive under any
plan, policy, practice or program of the Parent Company at or subsequent to the
date of a Termination Event shall be payable in accordance with such plan,
policy, practice or program.
7
ARTICLE VI
NON-ALIENATION OF BENEFITS
No benefit hereunder shall be subject to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge, and any attempt to do so
shall be void.
ARTICLE VII
DEFINITIONS
For purposes of the Agreement, the following terms shall have the meanings set
forth below:
7.1
"ACQUIROR" MEANS A PERSON OR A MEMBER OF A GROUP OF RELATED PERSONS
REPRESENTING SUCH GROUP THAT IN EITHER CASE OBTAINS EFFECTIVE CONTROL OF THE
PARENT COMPANY IN THE TRANSACTION OR A GROUP OF RELATED TRANSACTIONS
CONSTITUTING THE CHANGE OF CONTROL.
7.2
"CAUSE" MEANS (I) AN UNAUTHORIZED USE OR DISCLOSURE BY EXECUTIVE OF
THE PARENT COMPANY'S CONFIDENTIAL INFORMATION OR TRADE SECRETS, WHICH USE OR
DISCLOSURE CAUSES MATERIAL HARM TO THE PARENT COMPANY, (II) A MATERIAL BREACH BY
EXECUTIVE OF A MATERIAL AGREEMENT BETWEEN EXECUTIVE AND THE PARENT COMPANY,
(III) A MATERIAL FAILURE BY EXECUTIVE TO COMPLY WITH THE PARENT COMPANY'S
WRITTEN POLICIES OR RULES RESULTING IN MATERIAL HARM TO THE PARENT COMPANY,
(IV) EXECUTIVE'S CONVICTION OF, OR PLEA OF "GUILTY" OR "NO CONTEST" TO, A FELONY
UNDER THE LAWS OF THE UNITED STATES OR ANY STATE THEREOF OR THE EQUIVALENT UNDER
THE APPLICABLE LAWS OUTSIDE OF THE UNITED STATES, (V) EXECUTIVE'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT RESULTING IN MATERIAL HARM TO THE PARENT
COMPANY, (VI) A CONTINUING FAILURE BY EXECUTIVE TO PERFORM ASSIGNED DUTIES AFTER
RECEIVING WRITTEN NOTIFICATION OF SUCH FAILURE OR (VII) A FAILURE BY EXECUTIVE
TO COOPERATE IN GOOD FAITH WITH A GOVERNMENTAL OR INTERNAL INVESTIGATION OF THE
PARENT COMPANY OR ITS DIRECTORS, OFFICERS OR EMPLOYEES, IF THE PARENT COMPANY
HAS REQUESTED EXECUTIVE'S COOPERATION.
THE PARTIES ACKNOWLEDGE THAT THE
DETERMINATION OF "CAUSE" FOR PURPOSES OF THIS AGREEMENT MAY BE DIFFERENT THAN
THE DETERMINATION OF THE GROUNDS OF TERMINATION, AND THE BENEFITS TO WHICH
EXECUTIVE MAY BE ENTITLED, UNDER THE EMPLOYMENT RELATIONSHIP, AND THE LAW
APPLICABLE THERETO, BETWEEN EXECUTIVE AND EMPLOYER.
7.3
"CHANGE OF CONTROL" MEANS:
(A)
THE CONSUMMATION OF AN AMALGAMATION OF THE PARENT COMPANY WITH OR
INTO ANOTHER ENTITY OR ANY OTHER CORPORATE REORGANIZATION, IF PERSONS WHO WERE
NOT SHAREHOLDERS OF THE PARENT COMPANY IMMEDIATELY PRIOR TO SUCH MERGER,
CONSOLIDATION OR OTHER REORGANIZATION OWN IMMEDIATELY AFTER SUCH MERGER,
CONSOLIDATION OR OTHER REORGANIZATION 50% OR MORE OF THE VOTING POWER OF THE
OUTSTANDING SECURITIES OF EACH OF (I) THE CONTINUING OR SURVIVING ENTITY AND
(II) ANY DIRECT OR INDIRECT PARENT CORPORATION OF SUCH CONTINUING OR SURVIVING
ENTITY;
(B)
THE SALE, TRANSFER OR OTHER DISPOSITION OF ALL OR SUBSTANTIALLY
ALL OF THE PARENT COMPANY'S ASSETS;
8
(C)
A CHANGE IN THE COMPOSITION OF THE BOARD, AS A RESULT OF WHICH