ARE NOT CURED WITHIN 30
DAYS OF WRITTEN NOTICE FROM THE COMPANY, (VII) EXECUTIVE'S UNREASONABLE
OBSTRUCTION OR IMPEDING OF, OR FAILURE TO COOPERATE WITH, ANY INVESTIGATION
AUTHORIZED BY THE BOARD OR ANY GOVERNMENTAL OR SELF-REGULATORY ENTITY, (VIII)
EXECUTIVE BEING FOUND LIABLE IN ANY SECURITIES AND EXCHANGE COMMISSION OR OTHER
CIVIL OR CRIMINAL SECURITIES LAW ACTION OR BECOMING SUBJECT TO ANY CEASE AND
DESIST ORDER WITH RESPECT TO SUCH ACTION (REGARDLESS OF WHETHER EXECUTIVE ADMITS
OR DENIES LIABILITY), OR (IX) EXECUTIVE'S FAILURE TO MAINTAIN ANY AND ALL
LICENSES NECESSARY TO THE PERFORMANCE OF THE DUTIES DESCRIBED IN SECTION 1(A)
ABOVE.
(II)
THE COMPANY MAY TERMINATE THE TERM AND
EXECUTIVE'S EMPLOYMENT DUE TO "DISABILITY" IN THE EVENT ANY PHYSICAL OR MENTAL
ILLNESS, DISABILITY OR IMPAIRMENT THAT, AFTER REASONABLE ACCOMMODATION, HAS
PREVENTED EXECUTIVE FROM CONTINUING THE PERFORMANCE OF EXECUTIVE'S NORMAL DUTIES
AND RESPONSIBILITIES HEREUNDER FOR A PERIOD IN EXCESS OF 210 CONSECUTIVE DAYS OR
OF 270 NON-CONSECUTIVE DAYS WITHIN ANY 18 MONTH PERIOD.
(III)
EXECUTIVE MAY TERMINATE THE TERM AND
EXECUTIVE'S EMPLOYMENT FOR "GOOD REASON" IN THE EVENT THAT WITHOUT THE
EXECUTIVE'S EXPRESS PRIOR WRITTEN CONSENT, THE OCCURRENCE OF ANY ONE OR MORE OF
THE FOLLOWING OCCURS: (I) A MATERIAL DIMINUTION OF THE EXECUTIVE'S POSITIONS
(EXCLUDING REMOVAL FROM THE BOARD OF DIRECTORS OR ANY DIMINUTION ARISING
REASONABLY FROM THE FACT THAT THE COMPANY MAY NO LONGER BE A PUBLIC COMPANY OR
THAT EXECUTIVE MAY NOT BE PRESIDENT OF THE ENTIRETY OF THE NEW COMBINED
ORGANIZATION FOLLOWING A CHANGE IN CONTROL), TITLES, DUTIES, OR RESPONSIBILITIES
FROM, OR THE ASSIGNMENT TO THE EXECUTIVE OF DUTIES MATERIALLY INCONSISTENT WITH,
THOSE IN EFFECT ON THE DATE OF THE AGREEMENT; (II) THE COMPANY'S REQUIRING
EXECUTIVE TO BE BASED AT A LOCATION IN EXCESS OF THIRTY-FIVE (35) MILES FROM THE
LOCATION OF THE EXECUTIVE'S PRINCIPAL JOB LOCATION OR OFFICE AS OF THE EFFECTIVE
DATE OF THE AGREEMENT, EXCEPT FOR REQUIRED TRAVEL ON THE COMPANY'S BUSINESS TO
AN EXTENT SUBSTANTIALLY CONSISTENT WITH THE EXECUTIVE'S PRESENT BUSINESS
OBLIGATIONS; (III) A REDUCTION BY THE COMPANY OF EXECUTIVE'S BASE SALARY, (IV)
THE COMPANY'S BREACH OF ANY MATERIAL TERMS OF THE AGREEMENT; OR (V) THE FAILURE
OF THE COMPANY TO REQUIRE ASSUMPTION OF THE AGREEMENT BY A SUCCESSOR, EXCEPT IF
SUCH ASSUMPTION WOULD OCCUR BY OPERATION OF LAW.
NOTWITHSTANDING ANYTHING TO
THE CONTRARY CONTAINED HEREIN, "GOOD REASON" SHALL NOT BE DEEMED TO EXIST, AND
EXECUTIVE MAY NOT TERMINATE HIS EMPLOYMENT FOR GOOD REASON, UNLESS
12
(I) EXECUTIVE HAS PROVIDED WRITTEN NOTICE TO THE COMPANY OF THE EXISTENCE OF
GOOD REASON WITHIN 90 DAYS OF THE OCCURRENCE OF THE EVENT PURPORTING TO
CONSTITUTE GOOD REASON, (II) THE COMPANY FAILS TO CURE SUCH EVENT WITHIN 30 DAYS
OF RECEIPT OF SUCH NOTICE AND (III) EXECUTIVE TERMINATES HIS EMPLOYMENT WITHIN 5
DAYS OF THE COMPANY'S FAILURE TO CURE SUCH EVENT.
(IV)
THE TERM
"CHANGE IN CONTROL" SHALL MEAN:
(A)
ANY "PERSON" (AS SUCH TERM IS USED IN SECTIONS
3(A)(9) AND 13(D) OF THE EXCHANGE ACT) OR "GROUP" (AS SUCH TERM IS USED IN
SECTION 14(D)(2) OF