This excerpt taken from the ABAX 10-Q filed Aug 9, 2006.
As used herein the following words and phrases shall have the following respective meanings unless the context clearly indicates otherwise.
(a) Affiliate. Any entity which controls, is controlled by or is under common control with the Company.
(b) Annual Salary. The Participants regular annual base salary immediately prior to his or her termination of employment, including compensation converted to other benefits under a flexible pay arrangement maintained by the Company or any Affiliate or deferred pursuant to a written plan or agreement with the Company or any Affiliate, but excluding overtime pay, allowances, premium pay, compensation paid or payable under any bonus or incentive plan of the Company or any Affiliate or any similar payment.
(c) Board. The Board of Directors of Abaxis, Inc.
(d) Cause. With respect to any Participant, (i) the willful engaging in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise or (ii) the conviction of any felony or conviction of a misdemeanor which impairs the Participants ability substantially to perform the Participants duties with the Company. For purposes of this subsection, no act, or failure to act, on the Participants part shall be deemed willful unless done, or omitted to be done, by the Participant not in good faith and without reasonable belief that Participants action or omission was in the best interest of the Company.
(e) Change of Control. The occurrence of any of the following events:
(f) Code. The Internal Revenue Code of 1986, as amended from time to time, and all applicable guidance promulgated thereunder.
(g) Committee. The Compensation Committee of the Board.
(h) Company. Abaxis, Inc. and any successor thereto.
(i) Date of Termination. The date on which a Participant ceases to be an Employee of the Company and its Affiliates; provided, however, that a Participant will not be treated as ceasing to be an Employee of the Company and its Affiliates unless such Participant has experienced a separation from service within the meaning of Section 409A.
(j) Disability. A condition such that the Employee has terminated employment with the Company and/or all participating Employers with a qualifying disability and has immediately began receiving benefits from a long-term disability plan of the Company or any participating Employer.
(k) Effective Date. July 25, 2006.
(l) Employee. Any full-time, regular-benefit, non-bargaining employee of an Employer.
(m) Employer. The Company or any Subsidiary which participates in the Plan pursuant to Article VI hereof or, under the circumstances set forth in the third sentence of Section 3.1 hereof, any Subsidiary or Affiliate described in such sentence.
(n) ERISA. The Employee Retirement Income Security Act of 1974, as amended from time to time.
(o) Good Reason. With respect to any Participant, without such Participants written consent, (i) the assignment to the Participant of any duties inconsistent in any respect with the Participants position (including status, offices, titles and reporting requirements), authority, duties or responsibilities immediately before the Change of Control, or any other action by the Company which results in a significant diminution in such position, authority, duties or responsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company or the Employer promptly after receipt of notice thereof given by the Participant; (ii) any reduction in the Participants Annual Salary, or annual target bonus opportunity, or any material reduction in other compensation or employee benefits, as in effect during the 120-day period immediately preceding the Change of Control (or as such amounts may be increased from time to time), other than as a result of an isolated and inadvertent action not taken in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by the Participant; or (iii) the Company or the Employer requiring the Participant to relocate his or her principal place of business to a location which is more than fifty (50) miles from his or her previous principal place of business. For purposes of the Plan, any good faith determination of Good Reason made by the Participant shall be conclusive.
(p) Participant. An individual who is designated as such by the Board pursuant to Section 3.1.
(q) Plan. The Abaxis, Inc. Executive Change of Control Severance Plan.
(r) Section 409A. Section 409A of the Internal Revenue Code of 1986, as amended, and all applicable guidance promulgated thereunder.
(s) Separation Benefits. The benefits described in Section 5.2 that are provided to qualifying Participants under the Plan.
(t) Specified Employee. This term shall have the same meaning as is ascribed to such term under Section 409A.
(u) Subsidiary. Any corporation in which the Company, directly or indirectly, holds a majority of the voting power of such corporations outstanding shares of capital stock.
(v) Target Annual Bonus Amount. The annual bonus that the Participant would have received for the year in which his or her Date of Termination occurs, if the target goals had been achieved.