NO EVENT SHALL SUCH DATE BE EARLIER THAN THE 30TH DAY FOLLOWING THE DATE THE
NOTICE OF TERMINATION IS GIVEN, UNLESS EXPRESSLY AGREED TO BY THE PARTIES
HERETO) OR THE DATE OF THE EXECUTIVE'S DEATH.
(D)
NO WAIVER.
THE FAILURE TO SET FORTH ANY FACT OR CIRCUMSTANCE IN A
NOTICE OF TERMINATION, WHICH FACT OR CIRCUMSTANCE WAS NOT KNOWN TO THE PARTY
GIVING THE NOTICE OF TERMINATION WHEN THE NOTICE WAS GIVEN, SHALL NOT CONSTITUTE
A WAIVER OF THE RIGHT TO ASSERT SUCH FACT OR CIRCUMSTANCE IN AN ATTEMPT TO
ENFORCE ANY RIGHT UNDER OR PROVISION OF THIS AGREEMENT.
(E)
CAUSE.
FOR PURPOSES OF THIS AGREEMENT, "CAUSE" MEANS: (I) THE
EXECUTIVE'S GROSS NEGLIGENCE OR GROSS MISCONDUCT OR (II) THE EXECUTIVE'S HAVING
BEEN CONVICTED OF, OR ENTERED A PLEA OF NOLO CONTENDERE TO, A FELONY INVOLVING
MORAL TURPITUDE.
NO ACT OR FAILURE TO ACT DIRECTLY RELATED TO COMPANY ACTION OR
INACTION THAT CONSTITUTES GOOD REASON (AS THAT TERM IS DEFINED IN SUBSECTION
4(G) BELOW) SHALL CONSTITUTE CAUSE UNDER THIS AGREEMENT IF THE EXECUTIVE HAS
PROVIDED A NOTICE OF TERMINATION BASED ON SUCH GOOD REASON EVENT PRIOR TO THE
COMPANY'S GIVING OF THE NOTICE OF TERMINATION FOR CAUSE.
THE EXECUTIVE'S
TERMINATION FOR CAUSE SHALL BE EFFECTIVE WHEN AND IF A RESOLUTION IS DULY
ADOPTED BY AN AFFIRMATIVE VOTE OF THE ENTIRE BOARD (LESS THE EXECUTIVE), STATING
THAT, IN THE GOOD FAITH OPINION OF THE BOARD, THE EXECUTIVE IS GUILTY OF THE
CONDUCT DESCRIBED IN THE NOTICE OF TERMINATION, AND SUCH CONDUCT CONSTITUTES
CAUSE UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE EXECUTIVE SHALL HAVE
BEEN GIVEN THE OPPORTUNITY (I) TO CURE ANY ACT OR OMISSION THAT CONSTITUTES
CAUSE IF CAPABLE OF CURE AND (II), TOGETHER WITH COUNSEL, DURING THE 30-DAY
PERIOD FOLLOWING THE RECEIPT BY THE EXECUTIVE OF THE NOTICE OF TERMINATION AND
PRIOR TO THE ADOPTION OF THE BOARD'S RESOLUTION, TO BE HEARD BY THE BOARD.
(F)
DISABILITY.
FOR PURPOSES OF THIS AGREEMENT, THE EXECUTIVE SHALL
BE DEEMED TO HAVE A DISABILITY IF THE EXECUTIVE IS ENTITLED TO LONG-TERM
DISABILITY BENEFITS UNDER THE COMPANY'S LONG-TERM DISABILITY PLAN OR POLICY, AS
THE CASE MAY BE, AS IN EFFECT ON THE DATE OF TERMINATION (AS THAT TERM IS
DEFINED IN SUBSECTION 4(C) ABOVE)
(G)
GOOD REASON.
FOR PURPOSES OF THIS AGREEMENT, THE TERM "GOOD
REASON" MEANS THE OCCURRENCE (WITHOUT THE EXECUTIVE'S EXPRESS WRITTEN CONSENT)
OF ANY OF THE FOLLOWING ACTS OR FAILURES TO ACT BY THE COMPANY:
(I)
THE ASSIGNMENT TO THE EXECUTIVE OF DUTIES MATERIALLY INCONSISTENT
WITH THE EXECUTIVE'S POSITION OF CHIEF OPERATING OFFICER, OR A SUBSTANTIAL
DIMINUTION IN THE EXECUTIVE'S AUTHORITY AND DUTIES;
(II)
ANY REDUCTION IN THE EXECUTIVE'S ANNUAL BASE SALARY OR TARGET
ANNUAL BONUS OPPORTUNITY;
(III)
REQUIRING THE EXECUTIVE TO BE BASED MORE THAN 50 MILES AWAY FROM
THE COMPANY'S HEADQUARTERS IN NEW YORK, NEW YORK;
(IV)
THE MATERIAL BREACH BY THE COMPANY OF ANY OF ITS OTHER OBLIGATIONS
UNDER THIS AGREEMENT; OR
(V)
THE FAILURE OF THE COMPANY TO OBTAIN THE ASSUMPTION OF THIS
AGREEMENT AS CONTEMPLATED IN