IS GREATER.
BASE PAY INCLUDES ONLY REGULAR CASH SALARY AND 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