SUCCESSOR.
(K)
"ERISA AFFILIATE" MEANS WITH RESPECT TO COMPANY EACH CORPORATION
OR TRADE OR BUSINESS CONSIDERED TO BE A SINGLE EMPLOYER WITH COMPANY UNDER CODE
SECTIONS 414(B) OR 414(C).
(1)
"General Release" shall mean a release of all claims that
Executive, and anyone who may succeed to any claims of Executive, has or may
have against the Company, its board of directors, any of its subsidiaries,
affiliates or parent, or any of their employees, directors, officers, employees,
agents, plan sponsors, administrators, successors (including the Successor),
fiduciaries, or attorneys, including but not limited to claims arising out of
Executive's employment with, and termination of employment from, the Company,
but excluding claims for (i) severance payments and benefits due pursuant to
this Agreement and (ii) any salary, bonus, equity, accrued vacation, expense
reimbursement and other ordinary payments or benefits earned or otherwise due
with respect to the period prior to the date of any Termination.
(L)
"GOOD REASON" SHALL MEAN THE OCCURRENCE OF ANY OF THE FOLLOWING
WITHOUT THE CONSENT OF EXECUTIVE: (I) A MATERIAL DIMINUTION IN THE EXECUTIVE'S
BASE SALARY; (II) A MATERIAL DIMINUTION IN THE EXECUTIVE'S AUTHORITY, DUTIES OR
RESPONSIBILITIES; (III) A MATERIAL DIMINUTION IN THE AUTHORITY, DUTIES OR
RESPONSIBILITIES OF THE SUPERVISOR TO WHOM THE EXECUTIVE IS REQUIRED TO REPORT;
(IV) A MATERIAL CHANGE IN THE GEOGRAPHIC LOCATION AT WHICH THE EXECUTIVE MUST
PERFORM SERVICES; OR (V) A MATERIAL BREACH BY THE COMPANY OF ANY PROVISIONS OF
THIS AGREEMENT.
(M)
"TERMINATION" MEANS A TERMINATION OF EXECUTIVE'S EMPLOYMENT WITH
COMPANY AND ALL ITS ERISA AFFILIATES FOR ANY REASON, PROVIDED THAT SUCH
TERMINATION OF EMPLOYMENT QUALIFIES AS A SEPARATION FROM SERVICE FOR PURPOSES OF
CODE SECTION 409A AND THE DEFAULT RULES OF TREAS.
REG. §1.409A- 1(H).
(N)
"SEVERANCE PAYMENT" SHALL MEAN ONE (1) YEAR OF THE EXECUTIVE'S
BASE SALARY AT THE TIME OF THE TERMINATION DATE; PROVIDED, THAT IF EXECUTIVE'S
TERMINATION DATE OCCURS WITHIN ONE (1) YEAR FOLLOWING A CHANGE IN CONTROL (NOT
INCLUDING THE MERGER FOR THIS PURPOSE), THE SEVERANCE PAYMENT SHALL MEAN TWO
(2) YEARS OF THE EXECUTIVE'S BASE SALARY AND
3
ANY REDUCTION IN EXECUTIVE'S BASE SALARY SINCE THE DATE OF THE CHANGE IN CONTROL
SHALL BE IGNORED.
(O)
"SUCCESSOR" SHALL MEAN THE PERSON TO WHICH THIS AGREEMENT IS
ASSIGNED UPON A SALE OF BUSINESS WITHIN THE MEANING OF SECTION 10.
(P)
"TERMINATION DATE" SHALL MEAN THE DATE ON WHICH EXECUTIVE INCURS A
TERMINATION, AS FURTHER DESCRIBED IN SECTION 4.
3.
EMPLOYMENT OF EXECUTIVE
(A)
POSITION.
(I)
EXECUTIVE SHALL SERVE IN THE POSITION OF EXECUTIVE VICE PRESIDENT
AND CHIEF FINANCIAL OFFICER IN A FULL-TIME CAPACITY.
IN SUCH POSITION,
EXECUTIVE SHALL HAVE SUCH DUTIES AND AUTHORITY AS IS CUSTOMARILY ASSOCIATED WITH
SUCH POSITION AND SHALL HAVE SUCH OTHER TITLES AND DUTIES, CONSISTENT WITH
EXECUTIVE'S POSITION, AS MAY BE ASSIGNED FROM TIME TO TIME BY THE BOARD AND/OR
EXECUTIVE'S DIRECT SUPERVISOR.
(II)
EXECUTIVE WILL DEVOTE EXECUTIVE'S FULL BUSINESS TIME AND BEST
EFFORTS TO THE PERFORMANCE OF EXECUTIVE'S DUTIES HEREUNDER AND WILL NOT ENGAGE
IN ANY OTHER BUSINESS, PROFESSION OR