IS DETERMINED BEFORE ANY REDUCTION FOR DEFERRALS
PURSUANT TO ANY NONQUALIFIED DEFERRED COMPENSATION PLAN OR ARRANGEMENT,
QUALIFIED CASH OR DEFERRED ARRANGEMENT OR CAFETERIA PLAN.
(D)
"BENEFIT PLAN" MEANS ANY
(I)
EMPLOYEE BENEFIT PLAN AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED;
(II)
CAFETERIA PLAN DESCRIBED IN CODE SECTION 125;
(III)
PLAN, POLICY OR PRACTICE PROVIDING FOR PAID VACATION, OTHER PAID
TIME OFF OR SHORT- OR LONG-TERM PROFIT SHARING, BONUS OR INCENTIVE PAYMENTS; OR
(IV)
STOCK OPTION, STOCK PURCHASE, RESTRICTED STOCK, PHANTOM STOCK,
STOCK APPRECIATION RIGHT OR OTHER EQUITY-BASED COMPENSATION PLAN THAT IS
SPONSORED, MAINTAINED OR CONTRIBUTED TO BY THE COMPANY FOR THE BENEFIT OF
EMPLOYEES (AND/OR THEIR FAMILIES AND DEPENDENTS) GENERALLY OR YOU (AND/OR YOUR
FAMILY AND DEPENDENTS) IN PARTICULAR, INCLUDING, WITHOUT LIMITATION, ANY OF THE
STOCK INCENTIVE PLANS.
(E)
"BONUS PLAN PAYMENT" MEANS THE FULL AMOUNT OF THE ANNUAL TARGET
BONUS PAYMENT WHICH IS PAYABLE BY THE SUBSIDIARY TO YOU PURSUANT TO THE
SUBSIDIARY'S COMPANY-WIDE BONUS PLAN OR EQUIVALENT PLAN OF THE SUCCESSOR,
BASED
ON THE ASSUMPTION THAT ALL OF THE ANNUAL PERFORMANCE MILESTONES WILL HAVE BEEN
SATISFIED FOR SUCH YEAR.
(F)
"BOARD" MEANS THE BOARD OF DIRECTORS OF THE PARENT COMPANY.
ON
AND AFTER THE DATE OF A CHANGE IN CONTROL, ANY DUTY OF THE BOARD IN CONNECTION
WITH THIS AGREEMENT IS NONDELEGABLE AND ANY ATTEMPT BY THE BOARD TO DELEGATE ANY
SUCH DUTY IS INEFFECTIVE.
(G)
"CAUSE" MEANS: (I) YOUR GROSS MISCONDUCT; (II) YOUR WILLFUL AND
CONTINUED FAILURE TO PERFORM SUBSTANTIALLY YOUR DUTIES WITH THE SUBSIDIARY
(OTHER THAN A FAILURE RESULTING FROM YOUR INCAPACITY DUE TO BODILY INJURY OR
PHYSICAL OR MENTAL ILLNESS) AFTER A DEMAND FOR SUBSTANTIAL PERFORMANCE IS
DELIVERED TO YOU BY THE CHAIR OF THE BOARD WHICH SPECIFICALLY IDENTIFIES THE
MANNER IN WHICH YOU HAVE NOT SUBSTANTIALLY PERFORMED YOUR DUTIES AND PROVIDES
FOR A REASONABLE PERIOD OF TIME WITHIN WHICH YOU MAY TAKE CORRECTIVE MEASURES;
OR (III) YOUR CONVICTION (INCLUDING A PLEA OF NOLO CONTENDERE) OF WILLFULLY
ENGAGING IN ILLEGAL CONDUCT CONSTITUTING A FELONY OR GROSS MISDEMEANOR UNDER
FEDERAL OR STATE LAW WHICH IS MATERIALLY AND DEMONSTRABLY INJURIOUS TO THE
SUBSIDIARY OR WHICH IMPAIRS YOUR ABILITY TO PERFORM SUBSTANTIALLY YOUR DUTIES
FOR THE SUBSIDIARY.
AN ACT OR FAILURE TO ACT WILL BE CONSIDERED "GROSS" OR
"WILLFUL" FOR THIS PURPOSE ONLY IF DONE, OR OMITTED TO BE DONE, BY YOU IN BAD
FAITH AND WITHOUT REASONABLE BELIEF THAT IT WAS IN, OR NOT OPPOSED TO, THE BEST
INTERESTS OF THE SUBSIDIARY.
ANY ACT, OR FAILURE TO ACT, BASED UPON AUTHORITY
GIVEN PURSUANT TO A RESOLUTION DULY ADOPTED BY THE SUBSIDIARY'S BOARD (OR A
COMMITTEE THEREOF) OR BASED UPON THE ADVICE OF COUNSEL FOR THE SUBSIDIARY WILL
BE CONCLUSIVELY PRESUMED TO BE DONE, OR OMITTED TO BE DONE, BY YOU IN GOOD FAITH
AND IN THE BEST INTERESTS OF THE SUBSIDIARY.
NOTWITHSTANDING THE FOREGOING, YOU
MAY NOT BE TERMINATED FOR CAUSE UNLESS AND UNTIL THERE HAS
2
BEEN DELIVERED TO YOU A COPY OF A RESOLUTION DULY