CONSISTENT WITH
EXECUTIVE'S POSITION WITH THE COMPANY; PROVIDED, HOWEVER THAT EXECUTIVE SHALL
NOT BE DEEMED TO HAVE BEEN TERMINATED FOR CAUSE UNLESS (A) WRITTEN NOTICE HAS
BEEN DELIVERED TO EXECUTIVE SETTING FORTH THE REASONS FOR THE COMPANY'S
INTENTION TO TERMINATE EXECUTIVE FOR CAUSE AND (B) A PERIOD OF 14 DAYS HAS
ELAPSED SINCE DELIVERY OF SUCH NOTICE AND, IN THE CASE OF CLAUSES (II) AND (IV)
ABOVE, EXECUTIVE HAS FAILED TO CURE THE CIRCUMSTANCES CLAIMED TO CONSTITUTE
CAUSE WITHIN SUCH 14-DAY PERIOD.
FOR PURPOSE OF THE PRECEDING SENTENCE, NO ACT
OR FAILURE TO ACT BY EXECUTIVE SHALL BE CONSIDERED "WILLFUL" UNLESS DONE OR
OMITTED TO BE DONE BY EXECUTIVE IN BAD FAITH AND WITHOUT REASONABLE BELIEF THAT
EXECUTIVE'S ACTION OR OMISSION WAS IN THE BEST INTERESTS OF THE COMPANY.
ANY
ACT, OR FAILURE TO ACT, BASED UPON AUTHORITY GIVEN PURSUANT TO A RESOLUTION DULY
ADOPTED BY THE BOARD, BASED UPON THE ADVICE OF COUNSEL FOR THE COMPANY (OR UPON
THE INSTRUCTIONS OF ANY OTHER OFFICER OF THE COMPANY SENIOR TO EXECUTIVE) SHALL
BE CONCLUSIVELY PRESUMED TO BE DONE, OR OMITTED TO BE DONE, BY EXECUTIVE IN GOOD
FAITH AND IN THE BEST INTERESTS OF THE COMPANY.
CAUSE SHALL NOT EXIST UNLESS
AND UNTIL THE COMPANY HAS DELIVERED TO EXECUTIVE A COPY OF A RESOLUTION DULY
ADOPTED BY THREE-QUARTERS (3/4) OF THE ENTIRE BOARD (EXCLUDING EXECUTIVE IF
EXECUTIVE IS A BOARD MEMBER) AT A MEETING OF THE BOARD CALLED AND HELD FOR SUCH
PURPOSE (AFTER REASONABLE NOTICE TO EXECUTIVE AND AN OPPORTUNITY FOR EXECUTIVE,
TOGETHER WITH COUNSEL, TO BE HEARD BEFORE THE BOARD), FINDING THAT IN THE GOOD
FAITH OPINION OF THE BOARD AN EVENT SET FORTH IN CLAUSES (I), (II), (III), OR
(IV) HAS OCCURRED AND SPECIFYING THE PARTICULARS THEREOF IN DETAIL.
THE COMPANY
MUST NOTIFY EXECUTIVE OF ANY EVENT CONSTITUTING CAUSE WITHIN NINETY (90) DAYS
FOLLOWING KNOWLEDGE OF ANY MEMBER OF THE BOARD OTHER THAN EXECUTIVE (IF
APPLICABLE) OF ITS EXISTENCE OR SUCH EVENT SHALL NOT CONSTITUTE CAUSE UNDER THIS
AGREEMENT.
(E)
"CHANGE IN CONTROL" MEANS ANY OF THE
FOLLOWING:
(I) ANY INDIVIDUAL, ENTITY OR GROUP (WITHIN THE MEANING OF SECTION
13(D)(3) OR 14(D)(2) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE
"EXCHANGE ACT")) (OTHER THAN A SUBSIDIARY OR ANY EMPLOYEE BENEFIT PLAN (OR ANY
RELATED TRUST) OF THE COMPANY), (A "PERSON") BECOMES AFTER THE DATE HEREOF THE
BENEFICIAL OWNER OF 50% OR MORE OF EITHER THE THEN OUTSTANDING STOCK OR THE
COMBINED VOTING POWER OF THE THEN OUTSTANDING VOTING SECURITIES OF THE COMPANY
ENTITLED TO VOTE IN THE ELECTION OF DIRECTORS; (II) DURING ANY 24-MONTH PERIOD
INDIVIDUALS WHO, AS OF THE EFFECTIVE DATE, CONSTITUTE THE BOARD (THE "INCUMBENT
DIRECTORS") CEASE FOR ANY REASON TO CONSTITUTE AT LEAST A MAJORITY OF THE BOARD;
PROVIDED THAT ANY INDIVIDUAL WHO BECOMES A DIRECTOR AFTER THE EFFECTIVE DATE
WHOSE ELECTION, OR NOMINATION FOR ELECTION BY THE COMPANY'S SHAREHOLDERS, WAS
APPROVED BY A
2
VOTE OR WRITTEN CONSENT OF AT LEAST A MAJORITY OF THE DIRECTORS THEN COMPRISING
THE INCUMBENT