SUBSTANCE ABUSE,
SEXUAL HARASSMENT OR DISCRIMINATION POLICIES OR ANY OTHER MATERIAL WRITTEN
POLICY OF THE COMPANY REGARDING EMPLOYMENT, (E) THE WILLFUL FAILURE OF THE
EXECUTIVE TO RENDER SERVICES TO THE COMPANY OR ANY OF ITS SUBSIDIARIES IN
ACCORDANCE WITH EXECUTIVE'S EMPLOYMENT WHICH FAILURE AMOUNTS TO A MATERIAL
NEGLECT OF THE EXECUTIVE'S DUTIES TO THE COMPANY OR ANY OF ITS SUBSIDIARIES,
(F) THE REPEATED FAILURE OF THE EXECUTIVE TO COMPLY WITH REASONABLE DIRECTIVES
OF THE BOARD OF DIRECTORS OF THE COMPANY OR THE CHIEF EXECUTIVE OFFICER OF THE
COMPANY CONSISTENT WITH THE EXECUTIVE'S DUTIES OR (G) THE MATERIAL BREACH BY
EXECUTIVE OF ANY OF THE PROVISIONS OF ANY AGREEMENT BETWEEN EXECUTIVE, ON THE
ONE HAND, AND THE COMPANY OR A SECURITYHOLDER OR AN AFFILIATE OF THE COMPANY, ON
THE OTHER HAND.
NOTWITHSTANDING THE FOREGOING, WITH RESPECT TO CLAUSES (C),
(D), (E), (F) AND (G) ABOVE, EXECUTIVE'S TERMINATION OF EMPLOYMENT WITH THE
COMPANY SHALL NOT BE DEEMED TO HAVE BEEN TERMINATED FOR CAUSE UNLESS AND UNTIL
(X) EXECUTIVE HAS BEEN PROVIDED WRITTEN NOTICE OF THE COMPANY'S INTENTION TO
TERMINATE HIS EMPLOYMENT FOR CAUSE AND THE SPECIFIC FACTS RELIED ON,
(Y) EXECUTIVE HAS BEEN PROVIDED TEN (10) BUSINESS DAYS FROM THE RECEIPT OF SUCH
NOTICE TO CURE ANY SUCH CONDUCT OR OMISSION GIVING RISE TO A TERMINATION FOR
CAUSE, AND (Z) EXECUTIVE DOES NOT CURE ANY SUCH CONDUCT OR OMISSION WITHIN SUCH
TEN BUSINESS-DAY PERIOD.
(II)
"CODE" SHALL MEAN THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
(III)
"DISABILITY" SHALL MEAN THE INABILITY OF THE EXECUTIVE TO PERFORM
THE ESSENTIAL FUNCTIONS OF EXECUTIVE'S JOB, WITH OR WITHOUT REASONABLE
ACCOMMODATION, BY REASON OF A PHYSICAL OR MENTAL INFIRMITY, FOR A CONTINUOUS
PERIOD OF SIX MONTHS.
THE PERIOD OF SIX MONTHS SHALL BE DEEMED CONTINUOUS
UNLESS EXECUTIVE RETURNS TO WORK FOR AT LEAST 30 CONSECUTIVE BUSINESS DAYS
DURING SUCH PERIOD AND PERFORMS DURING SUCH PERIOD AT THE LEVEL AND COMPETENCE
THAT EXISTED PRIOR TO THE BEGINNING OF THE SIX-MONTH PERIOD.
THE DATE OF SUCH
DISABILITY SHALL BE ON THE FIRST DAY OF SUCH SIX-MONTH PERIOD.
(IV)
"SEVERANCE TERMINATION" SHALL MEAN THE TERMINATION OF EXECUTIVE'S
EMPLOYMENT BY THE COMPANY WITHOUT CAUSE (OTHER THAN BY REASON OF DEATH OR
DISABILITY) OR THE EXECUTIVE'S TERMINATION OF THE EMPLOYMENT RELATIONSHIP FOR
GOOD REASON.
(V)
"GOOD REASON" SHALL MEAN (A) A CHANGE BY THE COMPANY OR NMH IN
EXECUTIVE'S DUTIES AND RESPONSIBILITIES WHICH IS MATERIALLY INCONSISTENT WITH
EXECUTIVE'S POSITION IN THE COMPANY OR IN NMH, (B) A MATERIAL REDUCTION IN
EXECUTIVE'S ANNUAL BASE SALARY OR ANNUAL BONUS OPPORTUNITY, PROVIDED THAT ANY
REDUCTION OF UP TO TEN PERCENT (10%) OF OFFICER'S SALARY OR BONUS OPPORTUNITY
(IN EFFECT ON JUNE 29, 2006) THAT IS PART OF A PLAN TO REDUCE COMPENSATION OF
COMPARABLY SITUATED EMPLOYEES OF COMPANY GENERALLY SHALL NOT BE CONSIDERED A
"MATERIAL REDUCTION IN OFFICER'S ANNUAL BASE SALARY OR ANNUAL BONUS OPPORTUNITY"
HEREUNDER, (C) A
2
MATERIAL BREACH BY THE COMPANY OF THE EMPLOYMENT AGREEMENT, IF ANY, BETWEEN
EXECUTIVE AND THE COMPANY OR ONE OF ITS SUBSIDIARIES OR (D)