IN THIS
AGREEMENT SHALL HAVE THE FOLLOWING MEANINGS:
A)
ACCOUNTANT.
UNLESS THE COMPANY AND THE EMPLOYEE OTHERWISE AGREE
IN WRITING, ANY DETERMINATION REQUIRED UNDER THE SECTION SHALL BE MADE IN
WRITING BY THE COMPANY'S INDEPENDENT PUBLIC ACCOUNTANTS.
B)
ANNUAL COMPENSATION.
"ANNUAL COMPENSATION" MEANS AN AMOUNT EQUAL
TO THE GREATER OF (I) EMPLOYEE'S COMPANY BASE SALARY FOR THE TWELVE (12) MONTHS
PRECEDING THE CHANGE OF CONTROL EXCLUDING BONUS OR (II) EMPLOYEE'S COMPANY BASE
SALARY ON AN ANNUALIZED BASIS EXCLUDING BONUS AS OF THE TERMINATION DATE.
C)
CAUSE.
"CAUSE" SHALL MEAN (I) ANY ACT OF PERSONAL DISHONESTY
TAKEN BY THE EMPLOYEE IN CONNECTION WITH HIS RESPONSIBILITIES AS AN EMPLOYEE AND
INTENDED TO RESULT IN SUBSTANTIAL PERSONAL ENRICHMENT OF THE EMPLOYEE, (II) THE
CONVICTION OF A FELONY, (III) A WILLFUL ACT BY THE EMPLOYEE THAT CONSTITUTES
GROSS MISCONDUCT AND THAT IS INJURIOUS TO THE COMPANY, OR (IV) EMPLOYEE'S
FAILURE TO SATISFACTORILY PERFORM HIS OR HER JOB DUTIES FOR A PERIOD OF NOT LESS
THAN THIRTY (30) DAYS FOLLOWING DELIVERY TO THE EMPLOYEE OF A WRITTEN DEMAND FOR
PERFORMANCE FROM THE COMPANY THAT DESCRIBES THE BASIS FOR THE COMPANY'S BELIEF
THAT THE EMPLOYEE HAS NOT SUBSTANTIALLY PERFORMED HIS DUTIES; OR (V) EMPLOYEE'S
CONTINUED VIOLATIONS OF THE EMPLOYEE'S OBLIGATIONS TO THE COMPANY THAT ARE
DEMONSTRABLY WILLFUL
6
AND DELIBERATE ON THE EMPLOYEE'S PART.
ANY DISMISSAL FOR CAUSES IN ACCORDANCE
WITH SUBSECTION (IV) OR (V) OF THIS SECTION 6(B) MUST BE APPROVED BY THE
COMPANY'S BOARD OF DIRECTORS PRIOR TO THE DISMISSAL DATE.
D)
CHANGE OF CONTROL.
"CHANGE OF CONTROL" MEANS THE OCCURRENCE OF
ANY OF THE FOLLOWING EVENTS:
(I)
ANY "PERSON" (AS SUCH TERM IS USED IN SEC­TIONS 13(D) AND 14(D)
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED) BECOMES THE "BENEFICIAL
OWNER" (AS DEFINED IN RULE 13D-3 UNDER SAID ACT), DIRECTLY OR INDIRECTLY, OF
SECURITIES OF THE COMPANY REPRESENTING FIFTY PERCENT (50%) OR MORE OF THE TOTAL
VOTING POWER REPRESENTED BY THE COMPANY'S THEN OUTSTANDING VOTING SECURITIES IN
ANY TWELVE (12) MONTH PERIOD;
(II)
THE CONSUMMATION OF A MERGER OR CONSOLIDATION OF THE COMPANY WITH ANY
OTHER CORPORATION, OTHER THAN A MERGER OR CONSOLIDATION THAT WOULD RESULT IN THE
VOTING SECURITIES OF THE COMPANY OUTSTANDING IMMEDIATELY PRIOR THERETO
CONTINUING TO REPRESENT (EITHER BY REMAINING OUTSTANDING OR BY BEING CONVERTED
INTO VOTING SECURITIES OF THE SURVIVING ENTITY OR SUCH SURVIVING ENTITY'S
PARENT) AT LEAST FIFTY PERCENT (50%) OF THE TOTAL VOTING POWER REPRESENTED BY
THE VOTING SECURITIES OF THE COMPANY OR SUCH SURVIVING ENTITY OR SUCH SURVIVING
ENTITY'S PARENT OUTSTANDING IMMEDIATELY AFTER SUCH MERGER OR CONSOLIDATION;
(III)
THE CONSUMMATION OF THE SALE OR DISPOSITION BY THE COMPANY OF ALL OR
SEVENTY-FIVE PERCENT (75%) OR MORE OF THE COMPANY'S ASSETS.
E)
DISABILITY.
"DISABILITY" SHALL MEAN THAT THE EMPLOYEE HAS BEEN
UNABLE TO PERFORM THE ESSENTIAL FUNCTIONS OF HIS COMPANY DUTIES WITH OR WITHOUT
REASONABLE ACCOMMODATION AS THE RESULT OF HIS INCAPACITY DUE TO PHYSICAL OR
MENTAL ILLNESS, AND SUCH INABILITY, AT LEAST TWENTY-SIX (26) WEEKS AFTER ITS
COMMENCEMENT, IS DETERMINED TO BE TOTAL AND