TERMINATION.
EXECUTIVE'S EMPLOYMENT HEREUNDER MAY BE TERMINATED UNDER
THE FOLLOWING CIRCUMSTANCES:
(A)
TERMINATION BY THE EMPLOYER.
(I)
DEATH.
EXECUTIVE'S EMPLOYMENT HEREUNDER SHALL TERMINATE UPON HIS
DEATH.
(II)
DISABILITY.
IF, AS A RESULT OF EXECUTIVE'S INCAPACITY DUE TO
PHYSICAL OR MENTAL ILLNESS OR DISABILITY, EXECUTIVE SHALL HAVE BEEN INCAPABLE OF
PERFORMING HIS DUTIES HEREUNDER EVEN WITH A REASONABLE ACCOMMODATION ON A
FULL-TIME BASIS FOR THE ENTIRE PERIOD OF FOUR CONSECUTIVE MONTHS OR ANY 120 DAYS
IN A 180-DAY PERIOD, AND WITHIN 30 DAYS AFTER WRITTEN NOTICE OF TERMINATION (AS
DEFINED IN SECTION 6(D)) IS GIVEN HE SHALL NOT HAVE RETURNED TO THE PERFORMANCE
OF HIS DUTIES HEREUNDER ON A FULL-TIME BASIS, THE EMPLOYER MAY TERMINATE
EXECUTIVE'S EMPLOYMENT HEREUNDER.
(III)
CAUSE.
THE EMPLOYER MAY TERMINATE EXECUTIVE'S EMPLOYMENT
HEREUNDER FOR CAUSE BY A MAJORITY VOTE OF ALL MEMBERS OF THE BOARD, EXCLUDING
THE VOTE OF EXECUTIVE.
FOR PURPOSES OF THIS AGREEMENT, "CAUSE" SHALL MEAN:
(I)
EXECUTIVE'S ENGAGING IN CONDUCT WHICH IS A FELONY; (II) EXECUTIVE'S ENGAGING IN
CONDUCT CONSTITUTING A MATERIAL BREACH OF FIDUCIARY DUTY, GROSS NEGLIGENCE OR
WILLFUL AND MATERIAL MISCONDUCT, MATERIAL FRAUD OR WILLFUL AND MATERIAL
MISREPRESENTATION; (III) EXECUTIVE'S MATERIAL BREACH OF ANY OF HIS OBLIGATIONS
UNDER SECTION 8(A) THROUGH 8(E) OF THIS AGREEMENT; OR (IV) EXECUTIVE'S REPEATED
FAILURE TO COMPETENTLY PERFORM HIS DUTIES WHICH FAILURE IS NOT CURED WITHIN 30
DAYS AFTER RECEIVING NOTICE FROM THE EMPLOYER SPECIFICALLY IDENTIFYING THE
MANNER IN WHICH EXECUTIVE HAS FAILED TO PERFORM (IT BEING UNDERSTOOD THAT, FOR
THIS PURPOSE, THE MANNER AND LEVEL OF EXECUTIVE'S PERFORMANCE SHALL NOT BE
DETERMINED BASED ON THE FINANCIAL PERFORMANCE (INCLUDING WITHOUT LIMITATION THE
PERFORMANCE OF THE STOCK) OF THE EMPLOYER).
4
(IV)
WITHOUT CAUSE.
EXECUTIVE'S EMPLOYMENT HEREUNDER MAY BE TERMINATED
BY THE EMPLOYER AT ANY TIME WITH OR WITHOUT CAUSE (AS DEFINED IN
SECTION 6(A)(III) ABOVE), BY A VOTE OF TWO-THIRDS OR MORE OF ALL OF THE MEMBERS
OF THE BOARD (NOT TAKING INTO ACCOUNT EXECUTIVE AS A MEMBER OF THE BOARD), UPON
WRITTEN NOTICE TO EXECUTIVE, SUBJECT ONLY TO THE SEVERANCE PROVISIONS
SPECIFICALLY SET FORTH IN SECTION 7.
(B)
TERMINATION BY EXECUTIVE.
(I)
DISABILITY.
EXECUTIVE MAY TERMINATE HIS EMPLOYMENT HEREUNDER FOR
DISABILITY WITHIN THE MEANING OF SECTION 6(A)(II) ABOVE.
(II)
WITH GOOD REASON.
EXECUTIVE'S EMPLOYMENT HEREUNDER MAY BE
TERMINATED BY EXECUTIVE WITH GOOD REASON EFFECTIVE IMMEDIATELY BY WRITTEN NOTICE
TO THE BOARD.
FOR PURPOSES OF THIS AGREEMENT, WITH "GOOD REASON" SHALL MEAN:
(I) A FAILURE OF THE BOARD TO CONTINUE EXECUTIVE IN ANY OFFICES IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 2(A) OR OF EXECUTIVE TO BE CONTINUED AS A MEMBER
OF THE BOARD; (II) A FAILURE BY THE EMPLOYER TO PAY COMPENSATION IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 3, WHICH FAILURE HAS NOT BEEN CURED WITHIN 14
DAYS AFTER THE NOTICE OF THE FAILURE (SPECIFYING THE SAME) HAS BEEN GIVEN BY
EXECUTIVE TO THE EMPLOYER; (III) A MATERIAL BREACH BY THE EMPLOYER OF ANY OTHER
PROVISION OF THIS AGREEMENT WHICH HAS NOT BEEN CURED WITHIN 30 DAYS AFTER NOTICE
OF NONCOMPLIANCE (SPECIFYING THE NATURE