A.
BY THE COMPANY FOR CAUSE OR RESIGNATION BY EXECUTIVE WITHOUT GOOD
REASON.
(I)
THE EMPLOYMENT TERM AND EXECUTIVE'S EMPLOYMENT HEREUNDER MAY BE
TERMINATED BY THE COMPANY FOR CAUSE AND SHALL TERMINATE AUTOMATICALLY UPON
EXECUTIVE'S RESIGNATION WITHOUT GOOD REASON; PROVIDED, HOWEVER, THAT EXECUTIVE
WILL BE REQUIRED TO GIVE THE COMPANY AT LEAST 60 DAYS ADVANCE WRITTEN NOTICE OF
A RESIGNATION WITHOUT GOOD REASON.
(II)
FOR PURPOSES OF THIS AGREEMENT, "CAUSE" SHALL MEAN
(A) EXECUTIVE'S CONTINUED WILLFUL FAILURE SUBSTANTIALLY TO PERFORM EXECUTIVE'S
DUTIES HEREUNDER (OTHER THAN AS A RESULT OF TOTAL OR PARTIAL INCAPACITY DUE TO
PHYSICAL OR MENTAL ILLNESS) FOLLOWING WRITTEN NOTICE BY THE COMPANY TO EXECUTIVE
OF SUCH FAILURE, (B) DISHONESTY IN THE PERFORMANCE OF EXECUTIVE'S DUTIES
HEREUNDER, (C) EXECUTIVE'S CONVICTION OF, OR PLEA OF GUILTY OR NOLO CONTENDERE
TO, A CRIME CONSTITUTING (Y) A FELONY UNDER THE LAWS OF THE UNITED STATES OR ANY
STATE THEREOF OR (Z) A MISDEMEANOR INVOLVING MISCONDUCT BY EXECUTIVE IN HIS
PERSONAL OR PROFESSIONAL CONDUCT PUNISHABLE BY IMPRISONMENT OF MORE THAN THREE
DAYS OR A FINE IN EXCESS OF $5,000 (OTHER THAN A TRAFFIC VIOLATION), WHICH IS
REASONABLY LIKELY TO DAMAGE THE BUSINESS, PROSPECTS OR REPUTATION OF THE COMPANY
OR ANY OF ITS AFFILIATES IN ANY RESPECT, (D) EXECUTIVE'S WILLFUL MALFEASANCE OR
WILLFUL MISCONDUCT IN CONNECTION WITH EXECUTIVE'S DUTIES HEREUNDER OR ANY ACT OR
OMISSION WHICH IS INJURIOUS (OTHER THAN IN SOME IMMATERIAL OR DE MINIMIS
RESPECT) TO THE FINANCIAL CONDITION OR BUSINESS REPUTATION OF THE COMPANY OR ANY
OF ITS AFFILIATES OR (E) EXECUTIVE'S BREACH OF THE PROVISIONS OF SECTION 9 OR 10
OF THIS AGREEMENT (OTHER THAN A BREACH WHICH IS INSUBSTANTIAL AND INSIGNIFICANT,
TAKING INTO ACCOUNT ALL OF THE CIRCUMSTANCES); PROVIDED, HOWEVER, THAT ANY EVENT
DESCRIBED IN CLAUSES (A), (B) AND (D) OF THIS SECTION 8(A)(II) SHALL CONSTITUTE
CAUSE ONLY IF EXECUTIVE FAILS TO CURE SUCH EVENT, TO THE REASONABLE SATISFACTION
OF THE BOARD, WITHIN 10 DAYS AFTER RECEIPT FROM THE COMPANY OF WRITTEN NOTICE OF
THE EVENT WHICH CONSTITUTES CAUSE.
(III)
IF EXECUTIVE'S EMPLOYMENT IS TERMINATED BY THE COMPANY FOR CAUSE
OR IF EXECUTIVE RESIGNS WITHOUT GOOD REASON, EXECUTIVE SHALL BE ENTITLED TO
RECEIVE:
(A)
THE BASE SALARY THROUGH THE DATE OF TERMINATION;
(B)
ANY ANNUAL BONUS EARNED BUT UNPAID AS OF THE DATE OF TERMINATION FOR
ANY PREVIOUSLY COMPLETED FISCAL YEAR;
(C)
REIMBURSEMENT FOR ANY UNREIMBURSED BUSINESS EXPENSES PROPERLY
INCURRED BY EXECUTIVE IN ACCORDANCE WITH COMPANY POLICY PRIOR TO THE DATE OF
EXECUTIVE'S TERMINATION; AND
(D)
SUCH EMPLOYEE BENEFITS, IF ANY, AS TO WHICH EXECUTIVE MAY BE
ENTITLED UNDER THE EMPLOYEE BENEFIT PLANS OF THE COMPANY OR ANY OF ITS
AFFILIATES, INCLUDING, WITHOUT LIMITATION, ANY VESTED ACCRUED BENEFIT UNDER THE
SERP (THE
3
AMOUNTS DESCRIBED IN CLAUSES (A) THROUGH (D) HEREOF BEING REFERRED TO AS THE
"ACCRUED RIGHTS").
Following such termination of Executive's employment by the Company for Cause or
resignation by Executive without Good Reason, except as set forth in this
Section 8(a)(iii), Section 8(d) or Sections 12(h), (l), (n) and (o), Executive
shall have no