Definitions Definition Example with 4 Variations

Definitions. For purposes of this Agreement, the following terms shall have the following meanings: meanings indicated below: (a) "Affiliate" shall have the meaning set forth in Rule 12b-2 promulgated under Section 12 of the Exchange Act. (b) "Beneficial Owner" shall have the meaning set forth in Rule 13d-3 under the Exchange Act. (c) "Board" shall mean the Board of Directors of the Company. (b) (d) "Cause" for termination by the Company of the Executive's employment shall mean (i) the willful and continued... failure by the Executive to substantially perform the Executive's duties with the Company (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or any such actual or anticipated failure after the issuance of a Notice of Termination for Good Reason by the Executive pursuant to Section 6.1 of this Agreement) after a written demand for substantial performance is delivered to the Executive by the Board, which demand specifically identifies the manner in which the Board believes that the Executive has not substantially performed the Executive's duties, or (ii) the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Company or its subsidiaries, monetarily or otherwise. For purposes of clauses (i) and (ii) of this definition, (x) no act, or failure to act, on the Executive's part shall be deemed "willful" unless done, or omitted to be done, by the Executive not in good faith and without reasonable belief that the Executive's act, or failure to act, was in the best interest of the Company and (y) in the event of a dispute concerning the application of this provision, no claim by the Company that Cause exists shall be given effect unless the Company establishes to the Board by clear and convincing evidence that Cause exists. Notwithstanding the foregoing, Cause shall not include any act or omission of which the Audit Committee of the Board (or the full Board) has had actual knowledge of all material facts related thereto for at least 90 days without asserting that the act or omission constitutes Cause. (e) "Change in Control" for purposes of this Agreement shall mean any of the following: (i) Executive's gross negligence or willful misconduct in the performance of his duties to the Company where following events, provided that such gross negligence or willful misconduct has resulted or is likely to result in material damage to the Company or its subsidiaries; (ii) Executive's willful and habitual neglect of or failure to perform Executive's duties of consulting or employment, which neglect or failure an event is not cured within thirty (30) days after written notice thereof also a Management Buyout: (i) any Person is received by Executive; (iii) Executive's commission of any act of fraud or dishonesty with respect to becomes the Company that causes material harm to the Company or is intended to result in substantial personal enrichment; (iv) Executive's failure to cooperate with the Company in any investigation or formal proceeding initiated by a governmental authority or otherwise approved by the Board or the Audit Committee of the Board, which failure is not cured within thirty (30) days after written notice thereof is received by Executive; (v) Executive's conviction of or plea of guilty or nolo contendere to felony criminal conduct; (vi) Executive's violation of the Company's Confidentiality and Proprietary Rights Agreement (as defined below) or similar agreement that Executive has entered into with the Company; or (vii) Executive's material breach of any obligation or duty under this Agreement or material violation of any written employment or other written policies that have previously been furnished to Executive, which breach or violation is not cured within thirty (30) days after written notice thereof is received by Executive, if such breach or violation is capable of being cured. (c) "Change in Control" shall mean and include each of the following: (i) A transaction or series of transactions (other than an offering of the Company's common stock to the general public through a registration statement filed with the Securities and Exchange Commission) whereby any "person" or related "group" of "persons" (as such terms are used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) (other than the Company, any of its subsidiaries, an employee benefit plan maintained by the Company or any of its subsidiaries or a "person" that, prior to such transaction, Beneficial Owner directly or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) indirectly, of securities of the Company possessing representing thirty-five (35%) or more than 50% of the total combined voting power of the Company's then outstanding voting securities outstanding immediately after such acquisition; or (ii) The consummation generally entitled to vote in the election of directors of the Company; provided, however, that no Change in Control will be deemed to have occurred as a result of a change in ownership percentage resulting solely from an acquisition of securities by the Company (whether directly involving or a transaction described in clause (A) of paragraph (iii) below; (ii) during any period of two consecutive years, individuals who, as of the beginning of such period, constitute the Board (the "Incumbent Board") cease to constitute at least a majority of the Board; provided, that any person becoming a director of the Company subsequent to the beginning of such period whose election, or indirectly involving nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election of directors of the Company through one and whose appointment or more intermediaries) of (x) election was not approved by at least a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all majority of the Company's assets directors of the Company in office immediately before any single transaction or series such contest; (iii) there is consummated a Merger of related transactions or (z) the acquisition of assets or stock of another Company with any other business entity, in each case other than (A) a transaction: (A) Which results Merger which would result in the Company's voting securities of the Company generally entitled to vote in the election of directors of the Company outstanding immediately before the transaction prior to such Merger continuing to represent (either by remaining outstanding or by being converted into such securities of the surviving entity or any parent thereof), in combination with the ownership of any trustee or other fiduciary holding such securities under an employee benefit plan of the Company or any Subsidiary, at least 50% of the combined voting power of the voting securities of the Company or such surviving entity or any parent thereof outstanding immediately after such Merger, generally entitled to vote in the person that, as a result election of directors of the transaction, controls, Company or such surviving entity or any parent thereof and, in the case of such surviving entity or any parent thereof, of a class registered under Section 12 of the Exchange Act, or (B) a Merger effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing 35% or more of the combined voting power of the Company's then outstanding voting securities generally entitled to vote in the election of directors of the Company; or (iv) the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or owns, directly there is consummated the sale or indirectly, disposition by the Company of all or substantially all of the Company's assets, other than a sale or disposition by the Company of all or substantially all of the Company's assets or otherwise succeeds to an entity where the business outstanding securities generally entitled to vote in the election of directors of the Company (the Company immediately prior to the transaction continue to represent (either by remaining outstanding or by being converted into such person, the "Successor Entity")) directly or indirectly, at least a majority securities of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and (B) After which no person surviving entity or group beneficially owns voting securities representing any parent thereof) 50% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes outstanding voting securities of this such entity generally entitled to vote in such entity's election of directors immediately after such sale and of a class registered under Section 1(c)(ii)(B) as beneficially owning 50% or more of combined voting power 12 of the Successor Entity solely as Exchange Act. Within five (5) days after a result of the voting power held Change in Control has occurred, the Company prior shall deliver to the consummation Executive a written statement memorializing the date that the Change in Control occurred. (f) "Code" shall mean the Internal Revenue Code of the transaction. The Board 1986, as amended from time to time, and any successor Code, and related rules, regulations and interpretations. (g) "Company" shall have full and final authority, which shall be exercised mean Kaman Corporation and, except in its discretion, to determine conclusively determining under Section 18(e) hereof whether a or not any Change in Control of the Company has occurred pursuant occurred, shall include any successor to its business and/or assets. (h) Intentionally Omitted. (i) "Date of Termination" shall have the meaning set forth in Section 6.2 of this Agreement. (j) "Disability" shall be deemed the reason for the termination by the Company of the Executive's employment, if, as a result of the Executive's incapacity due to physical or mental illness, the Executive shall have been absent from the full-time performance of the Executive's duties with the Company for a period of six (6) consecutive months, the Company shall have given the Executive a Notice of Termination for Disability, and, within thirty (30) days after such Notice of Termination is given, the Executive shall not have returned to the above definition, and the date full-time performance of the occurrence Executive's duties. (k) "Exchange Act" shall mean the Securities Exchange Act of such Change 1934, as amended from time to time. (l) "Excise Tax" shall mean any excise tax imposed under Section 4999 of the Code. (m) "Executive" shall mean the individual named in Control and any incidental matters relating thereto. (d) the preamble to this Agreement (n) "Good Reason" for termination by the Executive of the Executive's employment shall mean the occurrence of (without the Executive's express written consent) after any of the following events or conditions without Executive's written consent: (i) a material diminution Change in Executive's authority, duties or responsibilities; provided that continued assignment Control (if more than one Change in Control has occurred, any reference to Executive after a Change in Control in this subsection (n) shall refer to the most recent Change in Control), of substantially any one of the following acts by the Company, or failures by the Company to act, unless, in the case of any act or failure to act described in paragraph (i), (v), (vi), or (vii) below, such act or failure to act is corrected prior to the Date of Termination specified in the Notice of Termination given in respect thereof: (i) the assignment to the Executive of any duties inconsistent with the Executive's status as Senior Vice President and Chief Financial Officer of the Company or a substantial diminution in the nature or status of the Executive's responsibilities from those in effect immediately prior to the Change in Control; (ii) a reduction by the Company in the Executive's annual Base Salary as in effect on the date of this Agreement or as the same duties and responsibilities may be increased from time to time; (iii) the relocation of the Executive's principal place of employment to a location more than 50 miles from the Executive's principal place of employment immediately prior to the Change in Control or the Company's requiring the Executive to be performed based anywhere other than such principal place of employment (or permitted relocation thereof) except for required travel on the Company's business to an extent substantially consistent with the Executive's business travel obligations immediately prior to the Change in Control; (iv) the failure by the Company to pay to the Executive for any portion of the Executive's current compensation, or to pay to the Executive any portion of an installment of deferred compensation under any deferred compensation program of the Company, within thirty (30) days of the date such compensation is due; (v) the failure by the Company to continue in effect any compensation plan in which the Executive participates immediately prior to the Change in Control which is material to the Executive's total compensation (including, but not limited to, the Kaman Corporation Compensation Administration Plan, Kaman Corporation Cash Bonus Plan, and Kaman Corporation 2003 Stock Incentive Plan), unless an equitable arrangement (embodied in an ongoing substitute or alternative plan) has been made with respect to such plan, or the failure by the Company to continue the Executive's participation therein (or in such substitute or alternative plan) on a basis not materially less favorable, both in terms of the amount or timing of payment of benefits provided and the level of the Executive's participation relative to other participants, as existed immediately prior to the Change in Control; (vi) the failure by the Company to continue to provide the Executive with benefits substantially similar to those enjoyed by the Executive under any of the Company's life insurance, health and accident, or disability plans in which the Executive was participating immediately prior to the Change in Control, the taking of any other action by the Company which would directly or indirectly materially reduce any of such benefits or deprive the Executive of any material fringe benefit enjoyed by the Executive at the time of the Change in Control, or the failure by the Company to provide the Executive with the number of paid vacation days to which the Executive is entitled on the basis of years of service with the Company in accordance with the Company's normal vacation policy in effect at the time of the Change in Control, provided, however, that this paragraph shall not be construed to require the Company to provide the Executive with a defined benefit pension plan if no such plan is provided to similarly situated executive officers of the Company or its Affiliates; (vii) any purported termination of the Executive's employment which is not effected pursuant to a Notice of Termination satisfying the requirements of Section 6.1 of this Agreement; for purposes of this Agreement, no such purported termination shall be effective; or (viii) the failure of any successor to Company (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in accordance with its terms prior to the effectiveness of any such succession. The Executive's right to terminate the Executive's employment for Good Reason shall not be affected by the Executive's incapacity due to physical or mental illness. The Executive's continued employment shall not constitute consent to, or a business unit waiver of rights with respect to, any act or failure to act constituting Good Reason hereunder. Notwithstanding anything to the contrary above, the Executive shall not have "Good Reason" to terminate employment due solely to one or more of the following events: (1) there is a parent entity that continues substantially all diminution of the business of the Company shall not constitute Good Reason, notwithstanding that or any of its subsidiaries, including, without limitation, a sale or other transfer of property or other assets of the entity for which Executive is to perform such Company or its subsidiaries, or a reduction in the Executive's business unit's head count or budget, or (2) a suspension of the Executive's position, job functions, authorities, duties and responsibilities is not directly owned while on paid administrative leave due to a reasonable belief by public stockholders; (ii) the Board that the Executive has engaged in conduct that would give adequate grounds to terminate the Executive's employment for Cause. (o) Intentionally Omitted. (p) "Management Buyout" means any event or transaction which would otherwise constitute a material diminution Change in Executive's base compensation, unless such a reduction is imposed across-the-board to senior management Control (a "Transaction") if, in connection with the Transaction, the Executive, members of the Company; (iii) Executive's immediate family, and/or the "Executive's Affiliates" (as defined below) participate, directly or beneficially, as an equity investor in, or have the option or right to acquire, whether or not vested, equity interests of, the acquiring entity or any of its Affiliates (the "Acquiror") having a material change percentage interest therein greater than 1%. For purposes of the preceding sentence, a party shall not be deemed to have participated as an equity investor in the geographic location Acquiror by virtue of (i) obtaining beneficial ownership of any equity interest in the Acquiror as a result of the grant to the party of an incentive compensation award under one or more incentive plans of the Acquiror (including, but not limited to, the conversion in connection with the Transaction of incentive compensation awards of the Company into incentive compensation awards of the Acquiror), on terms and conditions substantially equivalent to those applicable to other employees of the Company at a comparable level as such party immediately prior to the Transaction, after taking into account normal differences attributable to job responsibilities, title and the like, or (ii) obtaining beneficial ownership of any equity interest in the Acquiror on terms and conditions substantially equivalent to those obtained in the Transaction by all other shareholders of the Company or (iii) the party's interests in any tax-qualified defined benefit or defined contribution pension or retirement plan in which such party or any family member is a participant or beneficiary. The "Executive's Affiliates" at any time consist of any entity in which the Executive must perform his and/or members of the Executive's immediate family then own, directly or her duties; beneficially, or (iv) have the option or right to acquire, whether or not vested, greater than 10% of such entity's equity interests, and all then current directors and executive officers of the Company who are members of any other action group, that also includes the Executive, a member of the Executive's immediate family and/or any such entity, in which the members have agreed to act together for the purpose of participating in the Transaction. The Executive's immediate family consists of the Executive's spouse, parents, children and grandchildren. (q) "Merger" means a merger, share exchange, consolidation or inaction similar business combination under applicable law. (r) "Notice of Termination" shall have the meaning set forth in Section 6.1 of this Agreement. (s) "Payments" shall have the meaning set forth in Section 5.1 of this Agreement. (t) "Person" shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except that constitutes a material breach by such term shall not include (i) the Company or any successor or affiliate of its obligations direct or indirect Subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company, (iii) an underwriter temporarily holding securities pursuant to Executive under this Agreement. Executive must provide written notice an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions and with substantially the same voting rights as their ownership and voting rights with respect to the Company of the occurrence of Company. (u) "Subsidiary" shall mean any of the foregoing events or conditions without Executive's written consent within ninety (90) days of the occurrence of such event. The Company or any successor or affiliate shall have a period of thirty (30) days to cure such event or condition after receipt of written notice of such event from Executive. Any voluntary Separation from Service for "Good Reason" following such thirty (30) day cure period must occur no later than the date that is six (6) months following the initial occurrence of one of the foregoing events or conditions without Executive's written consent. Executive's voluntary Separation from Service by reason of resignation from employment with the Company for Good Reason shall be treated as involuntary. (e) "Code" means the Internal Revenue Code of 1986, as amended, and the Treasury Regulations and other interpretive guidance thereunder. (f) "Performance Awards" means any Stock Awards granted pursuant to the Company's performance-based compensation bonus plan or pursuant to any agreement that Executive has entered into with the Company providing for an equity bonus payment or equity vesting based upon the Executive's or the Company's performance. (g) "Permanent Disability" means Executive's inability to perform the essential functions of his or her position, with or without reasonable accommodation, for a period of at least 120 consecutive days because of a physical or mental impairment. 2 (h) "Separation from Service" means an involuntary separation from service corporation within the meaning of Section 409A 424(f) of the Code. (i) "Stock Awards" means all stock options, restricted stock and such other awards granted pursuant to (v) "Term" shall mean the Company's stock option and equity incentive award plans or agreements and any shares period of stock issued upon exercise thereof. time described in Section 2 of this Agreement. View More

Definitions. For purposes of this Agreement, the following definitions apply: (a)"$" refers to U.S. Dollars. (b)"Affiliate" means, with respect to any specified Person, any other Person which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person (for the purposes of this definition, "control" (including, with correlative meanings, the terms shall have "controlling," "controlled by" and "under common control with"), as... used with respect to any Person, means the possession, directly or indirectly, of the power to either: (i) direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise, or (ii) vote at least fifty percent (50%) or more of the securities having voting power for the election of a majority of the directors (or Persons performing similar functions) of such Person. (c)"Cause" means if Executive is discharged by Company on account of the occurrence of one or more of the following meanings: (a) "Board" shall mean the Board of Directors of the Company. (b) "Cause" shall mean any of the following: (i) Executive's gross negligence or willful misconduct in the performance of his duties to the Company where such gross negligence or willful misconduct has resulted or is likely to result in material damage to the Company or its subsidiaries; (ii) Executive's willful and habitual neglect of events: (i)Executive's continued refusal or failure to perform (other than by reason of Disability) Executive's material duties of consulting or employment, which neglect and responsibilities to Company if such refusal or failure is not cured within thirty (30) days after following written notice thereof is received of such refusal or failure by Executive; (iii) Company to Executive, or Executive's commission of any act of fraud continued refusal or dishonesty with respect to the Company that causes material harm to the Company or is intended to result in substantial personal enrichment; (iv) Executive's failure to cooperate with the Company in follow any investigation or formal proceeding initiated by a governmental authority or otherwise approved by reasonable lawful direction of the Board if such refusal or the Audit Committee of the Board, which failure is not cured within thirty (30) days after following written notice thereof of such refusal or failure by Company to Executive; (ii)willful, grossly negligent or unlawful misconduct by Executive which causes material harm to Company or its reputation; 9 (iii)the Company is received directed in writing by Executive; (v) Executive's conviction regulatory or governmental authorities to terminate the employment of Executive or Executive engages in activities that: (i) are not approved or authorized by the Board, and (ii) cause actions to be taken by regulatory or governmental authorities that have a material adverse effect on Company; or (iv)a conviction, plea of guilty, or plea of guilty or nolo contendere by Executive, of or with respect to a criminal offense which is a felony criminal conduct; (vi) Executive's violation of the Company's Confidentiality and Proprietary Rights Agreement (as defined below) or other crime involving dishonesty, disloyalty, fraud, embezzlement, theft, or similar agreement that Executive has entered into with action(s) (including, without limitation, acceptance of bribes, kickbacks or self-dealing), or the Company; or (vii) Executive's material breach of any obligation Executive's fiduciary duties with respect to Company. (d)"Change in Control" means the occurrence, in a single transaction or duty under this Agreement or material violation in a series of related transactions, of any written employment one or other written policies that have previously been furnished to Executive, which breach or violation is not cured within thirty (30) days after written notice thereof is received by Executive, if such breach or violation is capable of being cured. (c) "Change in Control" shall mean and include each more of the following: (i) A following events: (i)A transaction or series of transactions (other than an offering of the Company's common stock to the general public through a registration statement filed by the Company with the Securities and Exchange Commission) whereby any "person" "Person" or related "group" of "persons" (as such terms are used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) Act) (other than the Company, any of its subsidiaries, an employee Executive benefit plan maintained by the Company or any of its subsidiaries or a "person" "Person" that, prior to such transaction, directly or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 13(d)(3) under the Exchange Act) of securities of the Company possessing more than 50% fifty percent (50%) of the total combined voting power of the Company's securities outstanding immediately after such acquisition; or (ii) The (ii)The consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination combination, or (y) a sale or other disposition of all or substantially all of the Company's assets in any single transaction or series of related transactions or (z) the acquisition of assets or stock of another entity, in each case other than a transaction: (A) Which transactions: (A)which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person Person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, Person, the "Successor Entity")) Entity") directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and (B) After (B)after which no person Person or group beneficially owns voting securities representing 50% fifty percent (50%) or more of the combined voting power of the Successor Entity; provided, however, that no person Person or group shall be treated for purposes of this Section 1(c)(ii)(B) 11(d) as beneficially owning 50% fifty percent (50%) or more of the combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction. The Board A transaction shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether not constitute a Change in Control if its sole purpose is to change the State of the Company has occurred pursuant Company's incorporation or to the above definition, and the date of the occurrence of such Change create a holding company that will be owned in Control and any incidental matters relating thereto. (d) "Good Reason" shall mean the occurrence of any of the following events or conditions without Executive's written consent: (i) a material diminution in Executive's authority, duties or responsibilities; provided that continued assignment to Executive after a Change in Control of substantially the same duties and responsibilities to be performed by Executive for the Company, its successor or a business unit of a parent entity that continues substantially all of the business of the Company shall not constitute Good Reason, notwithstanding that the entity for which Executive is to perform such duties and responsibilities is not directly owned by public stockholders; (ii) a material diminution in Executive's base compensation, unless such a reduction is imposed across-the-board to senior management of the Company; (iii) a material change in the geographic location at which Executive must perform his or her duties; or (iv) any other action or inaction that constitutes a material breach proportions by the Company or any successor or affiliate of its obligations to Executive under this Agreement. Executive must provide written notice to persons who held the Company of the occurrence of any of the foregoing events or conditions without Executive's written consent within ninety (90) days of the occurrence of Company's securities immediately before such event. The Company or any successor or affiliate shall have a period of thirty (30) days to cure such event or condition after receipt of written notice of such event from Executive. Any voluntary Separation from Service for "Good Reason" following such thirty (30) day cure period must occur no later than the date that is six (6) months following the initial occurrence of one of the foregoing events or conditions without Executive's written consent. Executive's voluntary Separation from Service by reason of resignation from employment with the Company for Good Reason shall be treated as involuntary. (e) "Code" transaction. (e)"Code" means the Internal Revenue Code of 1986, as amended, and amended. (f)"Company" has the Treasury Regulations and other interpretive guidance thereunder. (f) "Performance Awards" meaning ascribed to it in the preamble of this Agreement. (g)"Company Group" shall mean the Company together with any of its direct or indirect subsidiaries. (h)"Compensation Committee" shall mean the committee of the Board designated to make compensation decisions relating to senior executive officers of the Company. 10 (i)"Confidential Information" means any Stock Awards granted pursuant and all nonpublic information of the Company. Confidential Information includes, without limitation, such information relating to (i) the development, research, testing, manufacturing, marketing, and financial activities of the Company, (ii) the Services, (iii) the costs, sources of supply, financial performance, and strategic and/or business plans of Company, (iv) the identity and special needs of the customers and prospective customers of Company, and (v) the people and organizations with whom Company has business relationships and those relationships. Confidential Information also includes any information that Company has received, or may receive hereafter, belonging to customers or others with any understanding, express or implied, that the information would not be disclosed. Notwithstanding the foregoing, "Confidential Information" does not include (x) any information that is or becomes generally known to the Company's performance-based compensation bonus plan industry or pursuant the public through no wrongful act of Executive or any representative of Executive and (y) any information that is made legitimately available to Executive by a third Party without breach of any confidentiality obligation. (j)"Disability" means Executive's inability, due to any agreement that Executive has entered into with the Company providing for an equity bonus payment illness, injury, accident or equity vesting based upon the condition of either a physical or psychological nature, to substantially perform Executive's or the Company's performance. (g) "Permanent Disability" means Executive's inability to perform the essential functions of his or her position, with or without reasonable accommodation, duties and responsibilities hereunder for a period of at least 120 one hundred twenty (120) consecutive days, or for any one hundred and eighty (180) days because during any period of three hundred and sixty-five (365) consecutive calendar days, exclusive of any leave Executive may take under the Family and Medical Leave Act, 29 U.S.C. § 12101 et seq. ("FMLA") or as a physical reasonable accommodation under the Americans with Disabilities Act, 29 U.S.C. § 2601 et seq. ("ADA"). (k)"Final Compensation" means the amount equal to the sum of: (i) the Base Salary earned but not paid through the date of termination of employment, payable not later than the next scheduled payroll date, (ii) any business and related expenses and allowances incurred by Executive or mental impairment. 2 (h) "Separation to which Executive is entitled under Section 4(g) but unreimbursed on the date of termination of employment; provided that with respect to business expenses unreimbursed under Section 4(g), such expenses and required substantiation and documentation are submitted within one hundred eighty (180) days of termination in the case of termination on account of Executive's death, or thirty (30) days on account of termination for any reason other than death, and that such expenses are reimbursable under Company's applicable reimbursement policy, and (iii) any other supplemental compensation, insurance, retirement or other benefits due and payable or otherwise required to be provided under Section 4 in accordance with the terms and conditions of the applicable plan or agreement. (l)"Good Reason" means, without Executive's express written consent: (i) a material reduction in the Base Salary, then in effect, except a material diminution generally affecting all of the members of the Company's management, (ii) a material reduction in job title, position or responsibility, (iii) a material breach of any term or condition contained in this Agreement, or (iv) a relocation of Executive's principal worksite that is more than fifty (50) miles from Service" Executive's principal worksite as of the Effective Date. However, none of the foregoing events or conditions will constitute "Good Reason" unless (i) Executive provides Company with written notice of the existence of Good Reason within ninety (90) days following the occurrence thereof, (ii) Company does not reverse or otherwise cure the event or condition within thirty (30) days of receiving that written notice, and (iii) Executive resigns Executive's employment within thirty (30) days following the expiration of that cure period. (m)"Intellectual Property" means inventions, discoveries, developments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or constituting trade secrets) conceived, made, created, developed or reduced to practice by Executive (whether alone or with others, whether or not during normal business hours or on or off Company premises) during Executive's employment that relate to either the Services or any prospective activity of Company or that make use of Confidential Information or any of the equipment or facilities of Company. (n)"Person" means an involuntary separation from service within individual, a corporation, a limited liability company, an association, a partnership, an estate, a trust, and any other entity or organization other than Company. (o)"Sale of Company" means the meaning sale of Section 409A Company to an independent third Party or group of independent third Parties pursuant to which such Party or Parties acquire: (i) equity interests possessing the voting power under normal circumstances to elect a majority of the Code. (i) "Stock Awards" Board of Directors or similar governing body of Company (whether by merger, consolidation or sale or transfer of such equity interests), or (ii) all or substantially all of Company's assets determined on a consolidated basis. 11 (p)"Services" means all stock options, restricted stock and such other awards granted pursuant services planned, researched, developed, tested, manufactured, sold, licensed, leased or otherwise distributed or put into use by Company, together with all products provided or planned by Company, during Executive's employment. (q)"Severance Period" shall mean that number of years or partial years following termination of Executive's employment equal to the Company's stock option and equity incentive award plans number of years or agreements and any shares partial years of stock issued upon exercise thereof. Base Salary that the Executive receives under Section 5(f). (r)"Term End Date" shall mean the last day of the Term of this Employment Agreement. View More

Definitions. For purposes of this Agreement, the following definitions apply: (a)"$" refers to U.S. Dollars. (b)"Affiliate" means, with respect to any specified Person, any other Person which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person (for the purposes of this definition, "control" (including, with correlative meanings, the terms shall have "controlling," "controlled by" and "under common control with"), as... used with respect to any Person, means the possession, directly or indirectly, of the power to either: (i) direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise, or (ii) vote at least fifty percent (50%) or more of the securities having voting power for the election of a majority of the directors (or Persons performing similar functions) of such Person. (c)"Cause" means if Executive is discharged by Company on account of the occurrence of one or more of the following meanings: (a) "Board" shall mean the Board of Directors of the Company. (b) "Cause" shall mean any of the following: (i) Executive's gross negligence or willful misconduct in the performance of his duties to the Company where such gross negligence or willful misconduct has resulted or is likely to result in material damage to the Company or its subsidiaries; (ii) Executive's willful and habitual neglect of events: (i)Executive's continued refusal or failure to perform (other than by reason of Disability) Executive's material duties of consulting or employment, which neglect and responsibilities to Company if such refusal or failure is not cured within thirty (30) days after following written notice thereof is received of such refusal or failure by Executive; (iii) Company to Executive, or Executive's commission of any act of fraud continued refusal or dishonesty with respect to the Company that causes material harm to the Company or is intended to result in substantial personal enrichment; (iv) Executive's failure to cooperate with the Company in follow any investigation or formal proceeding initiated by a governmental authority or otherwise approved by reasonable lawful direction of the Board if such refusal or the Audit Committee of the Board, which failure is not cured within thirty (30) days after following written notice thereof is received of such refusal or failure by Company to Executive; (v) Executive's conviction of or plea of guilty or nolo contendere to felony criminal conduct; (vi) Executive's violation of the Company's Confidentiality and Proprietary Rights Agreement (as defined below) or similar agreement that Executive has entered into with the Company; or (vii) Executive's (ii)a material breach of any obligation or duty under this Agreement or material violation (other than Section 7, Section 8 and/or Section 9) by Executive that, if capable of any written employment or other written policies that have previously been furnished to Executive, which breach or violation being cured, is not cured within thirty (30) days after following written notice thereof of such breach by Company to Executive; (iii)an intentional and material breach of Section 7, Section 8 and/or Section 9 hereof by Executive; (iv)willful, grossly negligent or unlawful misconduct by Executive which causes material harm to Company or its reputation; (v)any conduct engaged in by Executive that is received materially detrimental to the business or reputation of Company as determined by the Board in good faith using its reasonable business judgment that is not cured within thirty (30) days following written notice from Company to Executive; (vi)the Company is directed in writing by regulatory or governmental authorities to terminate the employment of Executive or Executive engages in activities that: (i) are not approved or authorized by the Board, and (ii) cause actions to be taken by regulatory or governmental authorities that have a material adverse effect on Company; or 10 (vii)a conviction, plea of guilty, or plea of nolo contendere by Executive, if such of or with respect to a criminal offense which is a felony or other crime involving dishonesty, disloyalty, fraud, embezzlement, theft, or similar action(s) (including, without limitation, acceptance of bribes, kickbacks or self-dealing), or the material breach or violation is capable of being cured. (c) "Change Executive's fiduciary duties with respect to Company. (d)"Change in Control" shall mean and include each means the occurrence, in a single transaction or in a series of related transactions, of any one or more of the following: (i) A following events: (i)A transaction or series of transactions (other than an offering of the Company's common stock to the general public through a registration statement filed by the Company with the Securities and Exchange Commission) whereby any "person" "Person" or related "group" of "persons" (as such terms are used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) Act) (other than the Company, any of its subsidiaries, an employee Executive benefit plan maintained by the Company or any of its subsidiaries or a "person" "Person" that, prior to such transaction, directly or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 13(d)(3) under the Exchange Act) of securities of the Company possessing more than 50% fifty percent (50%) of the total combined voting power of the Company's securities outstanding immediately after such acquisition; or (ii) The (ii)The consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination combination, or (y) a sale or other disposition of all or substantially all of the Company's assets in any single transaction or series of related transactions or (z) the acquisition of assets or stock of another entity, in each case other than a transaction: (A) Which transactions: (A)which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person Person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, Person, the "Successor Entity")) Entity") directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and (B) After (B)after which no person Person or group beneficially owns voting securities representing 50% fifty percent (50%) or more of the combined voting power of the Successor Entity; provided, however, that no person Person or group shall be treated for purposes of this Section 1(c)(ii)(B) 11(d) as beneficially owning 50% fifty percent (50%) or more of the combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction. The Board A transaction shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether not constitute a Change in Control if its sole purpose is to change the State of the Company has occurred pursuant Company's incorporation or to the above definition, and the date of the occurrence of such Change create a holding company that will be owned in Control and any incidental matters relating thereto. (d) "Good Reason" shall mean the occurrence of any of the following events or conditions without Executive's written consent: (i) a material diminution in Executive's authority, duties or responsibilities; provided that continued assignment to Executive after a Change in Control of substantially the same duties and responsibilities to be performed by Executive for the Company, its successor or a business unit of a parent entity that continues substantially all of the business of the Company shall not constitute Good Reason, notwithstanding that the entity for which Executive is to perform such duties and responsibilities is not directly owned by public stockholders; (ii) a material diminution in Executive's base compensation, unless such a reduction is imposed across-the-board to senior management of the Company; (iii) a material change in the geographic location at which Executive must perform his or her duties; or (iv) any other action or inaction that constitutes a material breach proportions by the Company or any successor or affiliate of its obligations to Executive under this Agreement. Executive must provide written notice to persons who held the Company of the occurrence of any of the foregoing events or conditions without Executive's written consent within ninety (90) days of the occurrence of Company's securities immediately before such event. The Company or any successor or affiliate shall have a period of thirty (30) days to cure such event or condition after receipt of written notice of such event from Executive. Any voluntary Separation from Service for "Good Reason" following such thirty (30) day cure period must occur no later than the date that is six (6) months following the initial occurrence of one of the foregoing events or conditions without Executive's written consent. Executive's voluntary Separation from Service by reason of resignation from employment with the Company for Good Reason shall be treated as involuntary. (e) "Code" transaction. (e)"Code" means the Internal Revenue Code of 1986, as amended, and amended. (f)"Company" has the Treasury Regulations and other interpretive guidance thereunder. (f) "Performance Awards" meaning ascribed to it in the preamble of this Agreement. (g)"Company Group" shall mean the Company together with any of its direct or indirect subsidiaries. (h)"Compensation Committee" shall mean the committee of the Board designated to make compensation decisions relating to senior executive officers of the Company. (i)"Confidential Information" means any Stock Awards granted pursuant and all nonpublic information of the Company. Confidential Information includes, without limitation, such information relating to (i) the development, research, testing, manufacturing, marketing, and financial activities of the Company, (ii) the Services, (iii) the costs, sources of supply, financial performance, and strategic and/or business plans of Company, (iv) the identity and special needs of the customers and prospective customers of Company, and (v) the people and organizations with whom Company has business relationships and those relationships. Confidential Information also includes any information that Company has received, or may receive hereafter, belonging to customers or others with any understanding, express or implied, that the information would not be disclosed. Notwithstanding the foregoing, "Confidential Information" does not include (x) any information that is or becomes generally known to the Company's performance-based compensation bonus plan industry or pursuant the public through no wrongful act of Executive or any representative of Executive and (y) any information that is made legitimately available to Executive by a third Party without breach of any confidentiality obligation. 11 (j)"Disability" means Executive's inability, due to any agreement that Executive has entered into with the Company providing for an equity bonus payment illness, injury, accident or equity vesting based upon the condition of either a physical or psychological nature, to substantially perform Executive's or the Company's performance. (g) "Permanent Disability" means Executive's inability to perform the essential functions of his or her position, with or without reasonable accommodation, duties and responsibilities hereunder for a period of at least 120 one hundred twenty (120) consecutive days, or for any one hundred and eighty (180) days because during any period of three hundred and sixty-five (365) consecutive calendar days, exclusive of any leave Executive may take under the Family and Medical Leave Act, 29 U.S.C. § 12101 et seq. ("FMLA") or as a physical reasonable accommodation under the Americans with Disabilities Act, 29 U.S.C. § 2601 et seq. ("ADA"). (k)"Final Compensation" means the amount equal to the sum of: (i) the Base Salary earned but not paid through the date of termination of employment, payable not later than the next scheduled payroll date, (ii) any business and related expenses and allowances incurred by Executive or mental impairment. 2 (h) "Separation to which Executive is entitled under Section 4(f) but unreimbursed on the date of termination of employment; provided that with respect to business expenses unreimbursed under Section 4(f), such expenses and required substantiation and documentation are submitted within one hundred eighty (180) days of termination in the case of termination on account of Executive's death, or thirty (30) days on account of termination for any reason other than death, and that such expenses are reimbursable under Company's applicable reimbursement policy, and (iii) any other supplemental compensation, insurance, retirement or other benefits due and payable or otherwise required to be provided under Section 4 in accordance with the terms and conditions of the applicable plan or agreement. (l)"Good Reason" means, without Executive's express written consent: (i) a material reduction in the Base Salary, then in effect, except a material diminution generally affecting all of the members of the Company's management, (ii) a material reduction in job title, position or responsibility, (iii) a material breach of any term or condition contained in this Agreement, or (iv) a relocation of Executive's principal worksite that is more than fifty (50) miles from Service" Executive's principal worksite as of the Effective Date. However, none of the foregoing events or conditions will constitute "Good Reason" unless (i) Executive provides Company with written notice of the existence of Good Reason within ninety (90) days following the occurrence thereof, (ii) Company does not reverse or otherwise cure the event or condition within thirty (30) days of receiving that written notice, and (iii) Executive resigns Executive's employment within thirty (30) days following the expiration of that cure period. (m)"Intellectual Property" means inventions, discoveries, developments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or constituting trade secrets) conceived, made, created, developed or reduced to practice by Executive (whether alone or with others, whether or not during normal business hours or on or off Company premises) during Executive's employment that relate to either the Services or any prospective activity of Company or that make use of Confidential Information or any of the equipment or facilities of Company. (n)"Person" means an involuntary separation from service within individual, a corporation, a limited liability company, an association, a partnership, an estate, a trust, and any other entity or organization other than Company. (o)"Sale of Company" means the meaning sale of Section 409A Company to an independent third Party or group of independent third Parties pursuant to which such Party or Parties acquire: (i) equity interests possessing the voting power under normal circumstances to elect a majority of the Code. (i) "Stock Awards" Board of Directors or similar governing body of Company (whether by merger, consolidation or sale or transfer of such equity interests), or (ii) all or substantially all of Company's assets determined on a consolidated basis. (p)"Services" means all stock options, restricted stock and such other awards granted pursuant services planned, researched, developed, tested, manufactured, sold, licensed, leased or otherwise distributed or put into use by Company, together with all products provided or planned by Company, during Executive's employment. (q)"Severance Period" shall mean that number of years or partial years following termination of Executive's employment equal to the Company's stock option and equity incentive award plans number of years or agreements and any shares partial years of stock issued upon exercise thereof. Base Salary that the Executive receives under Section 5(f).. (r)"Term End Date" shall mean the last day of the Term of this Employment Agreement. View More

Definitions. For purposes of this Agreement, the following terms shall have the following meanings: (a) "Board" shall mean the Board of Directors of the Company. (b) "Cause" shall mean any of the following: (i) Executive's gross negligence or willful misconduct in the performance of his duties to the Company where such gross negligence or willful misconduct has resulted or is likely to result in material damage to the Company or its subsidiaries; (ii) Executive's willful and habitual neglect of or failure... to perform Executive's duties of consulting or employment, which neglect or failure is not cured within thirty (30) days after written notice thereof is received by Executive; (iii) Executive's commission of any act of fraud or dishonesty with respect to the Company that causes material harm to the Company or is intended to result in substantial personal enrichment; (iv) Executive's failure to cooperate with the Company in any investigation or formal proceeding initiated by a governmental authority or otherwise approved by the Board or the Audit Committee of the Board, which failure is not cured within thirty (30) days after written notice thereof is received by Executive; (v) Executive's conviction of or plea of guilty or nolo contendere to felony criminal conduct; (vi) Executive's material violation of the Company's Confidentiality and Proprietary Rights Agreement (as defined below) or similar agreement that Executive has entered into with the Company; or (vii) Executive's material breach of any obligation or duty under this Agreement or material violation of any written employment or other written policies that have previously been furnished to Executive, which breach or violation is not cured within thirty (30) days after written notice thereof is received by Executive, if such breach or violation is capable of being cured. (c) "Change in Control" shall mean and include each "Code" means the Internal Revenue Code of the following: (i) A transaction or series of transactions (other than an offering of the Company's common stock to the general public through a registration statement filed with the Securities and Exchange Commission) whereby any "person" or related "group" of "persons" (as such terms are used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, 1986, as amended (the "Exchange Act")) (other than the Company, any of its subsidiaries, an employee benefit plan maintained by the Company or any of its subsidiaries or a "person" that, prior to such transaction, directly or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of securities of the Company possessing more than 50% of the total combined voting power of the Company's securities outstanding immediately after such acquisition; or (ii) The consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets in any single transaction or series of related transactions or (z) the acquisition of assets or stock of another entity, in each case other than a transaction: (A) Which results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least a majority of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and (B) After which no person or group beneficially owns voting securities representing 50% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this Section 1(c)(ii)(B) as beneficially owning 50% or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction. The Board shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, amended, and the date of the occurrence of such Change in Control Treasury Regulations and any incidental matters relating thereto. other interpretive guidance thereunder. (d) "Good Reason" shall mean the occurrence of any of the following events or conditions without Executive's written consent: (i) a material diminution in Executive's authority, duties or responsibilities; provided that continued assignment to Executive after a Change in Control of substantially the same duties and responsibilities to be performed by Executive for the Company, its successor or a business unit of a parent entity that continues substantially all of the business of the Company shall not constitute Good Reason, notwithstanding that the entity for which Executive is to perform such duties and responsibilities is not directly owned by public stockholders; (ii) a material diminution in Executive's base compensation, unless such a reduction is imposed across-the-board to senior management of the Company; (iii) a material change in the geographic location at which Executive must perform his or her duties; or (iv) any other action or inaction that constitutes a material breach by the Company or any successor or affiliate of its obligations to Executive under this Agreement. Executive must provide written notice to the Company of the occurrence of any of the foregoing events or conditions without Executive's written consent within ninety (90) days of the occurrence of such event. The Company or any successor or affiliate shall have a period of thirty (30) days to cure such event or condition after receipt of written notice of such event from Executive. Any voluntary Separation from Service for "Good Reason" following such thirty (30) day cure period must occur no later than the date that is six (6) months following the initial occurrence of one of the foregoing events or conditions without Executive's written consent. Executive's voluntary Separation from Service by reason of resignation from employment with the Company for Good Reason shall be treated as involuntary. (e) "Code" means the Internal Revenue Code of 1986, as amended, and the Treasury Regulations and other interpretive guidance thereunder. (f) "Performance Awards" means any Stock Awards granted pursuant to the Company's performance-based compensation bonus plan or pursuant to any agreement that Executive has entered into with the Company providing for an equity bonus payment or equity vesting based upon the Executive's or the Company's performance. (g) (f) "Permanent Disability" means Executive's inability to perform the essential functions of his or her position, with or without reasonable accommodation, for a period of at least 120 consecutive days because of a physical or mental impairment. 2 (h) (g) "Separation from Service" means an involuntary separation from service within the meaning of Section 409A of the Code. (i) (h) "Stock Awards" means all stock options, restricted stock and such other awards granted pursuant to the Company's stock option and equity incentive award plans or agreements and any shares of stock issued upon exercise thereof. View More