SUCCESSIVE
PERIODS OF ONE (1) YEAR EACH THEREAFTER (EACH A "RENEWAL TERM" AND TOGETHER WITH
THE INITIAL TERM, THE "EMPLOYMENT TERM") THE LAST DATE OF EXECUTIVE'S EMPLOYMENT
WITH COMPANY IS REFERRED TO HEREIN AS THE "TERMINATION DATE."
4.2
TERMINATION.
(A)
DEATH. THIS AGREEMENT WILL AUTOMATICALLY AND IMMEDIATELY TERMINATE
UPON THE DEATH OF EXECUTIVE, AND EXECUTIVE (E.G., EXECUTIVE'S HEIRS OR ESTATE)
WILL NOT BE ENTITLED TO ANY SEVERANCE BENEFITS (AS DEFINED BELOW).
(B)
DISABILITY.
THIS AGREEMENT MAY BE TERMINATED BY EITHER PARTY UPON
WRITTEN NOTICE TO THE OTHER IN THE EVENT EXECUTIVE BECOMES UNAVAILABLE TO WORK
DUE TO A DISABILITY (AS DEFINED IN THIS SECTION).
AS USED HEREIN, "DISABILITY"
MEANS EXECUTIVE'S BECOMING INCAPACITATED BY ACCIDENT, SICKNESS, OR OTHER
CIRCUMSTANCES THAT, IN THE REASONABLE JUDGMENT OF COMPANY, RENDERS OR IS
EXPECTED TO RENDER EXECUTIVE MENTALLY OR PHYSICALLY INCAPABLE OF PERFORMING THE
ESSENTIAL DUTIES AND SERVICES REQUIRED HEREUNDER, WHERE (I) SUCH INCAPACITY HAS
BEEN DETERMINED TO EXIST BY THE DISABILITY INSURANCE CARRIER FOR COMPANY, OR
(II) A WRITTEN DETERMINATION BY A PHYSICIAN MUTUALLY AGREEABLE TO THE COMPANY
AND EXECUTIVE (OR, IN THE EVENT OF EXECUTIVE'S TOTAL PHYSICAL OR MENTAL
INCAPACITY, EXECUTIVE'S LEGAL REPRESENTATIVE) THAT SUCH INCAPACITY HAS CONTINUED
OR WILL CONTINUE FOR AT LEAST NINETY (90) CONSECUTIVE CALENDAR DAYS, OR 180
NON-CONSECUTIVE CALENDAR DAYS, WITHIN A CALENDAR YEAR, OR IN THE ABSENCE OF
AGREEMENT BY THE COMPANY AND EXECUTIVE (OR HIS LEGAL REPRESENTATIVE), EACH PARTY
SHALL DESIGNATE A PHYSICIAN AND THE TWO PHYSICIANS WILL SELECT A THIRD PHYSICIAN
WHO WILL MAKE THE DETERMINATION AS TO EXECUTIVE'S INCAPACITY.
IF EXECUTIVE'S
EMPLOYMENT IS TERMINATED DUE TO A DISABILITY, EXECUTIVE WILL NOT BE ENTITLED TO
ANY SEVERANCE BENEFITS.
IN CONJUNCTION WITH DETERMINING MENTAL AND/OR PHYSICAL
DISABILITY FOR PURPOSES OF THIS AGREEMENT, THE EXECUTIVE HEREBY CONSENTS TO
(X) ANY EXAMINATIONS THAT THE BOARD OR COMPENSATION COMMITTEE OF PARENT DEEMS
RELEVANT TO A DETERMINATION OF WHETHER THE EXECUTIVE IS MENTALLY AND/OR
PHYSICALLY DISABLED, OR ARE REQUIRED BY ANY SUCH DESIGNATED PHYSICIAN,
(Y) FURNISH SUCH MEDICAL INFORMATION AS MAY BE REASONABLY REQUESTED, AND
(Z) WAIVE ANY APPLICABLE PRIVILEGE THAT MAY ARISE BECAUSE OF SUCH EXAMINATION.
(C)
CAUSE.
IN ADDITION TO ANY OTHER RIGHTS OR REMEDIES AVAILABLE TO
COMPANY DURING THE EMPLOYMENT TERM, IN ITS SOLE DISCRETION COMPANY MAY TERMINATE
EXECUTIVE'S EMPLOYMENT FOR CAUSE (AS DEFINED IN THIS SECTION) EFFECTIVE
IMMEDIATELY UPON DELIVERY OF WRITTEN NOTICE TO EXECUTIVE, AND EXECUTIVE WILL NOT
BE ENTITLED TO ANY SEVERANCE BENEFITS.
AS USED HEREIN, "CAUSE" MEANS ANY OF THE
FOLLOWING:
(I)
THAT EXECUTIVE HAS MATERIALLY
3
NEGLECTED, FAILED, OR REFUSED TO RENDER THE SERVICES OR PERFORM ANY OTHER
MATERIAL DUTIES OR OBLIGATIONS UNDER THIS AGREEMENT; (II) THAT EXECUTIVE HAS
OTHERWISE MATERIALLY VIOLATED ANY PROVISION OF THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, VIOLATION OF COMPANY POLICIES REGARDING DRUGS AND ALCOHOL,
DISCRIMINATION, HARASSMENT, RETALIATION, HONESTY, CONFIDENTIALITY, AND/OR OTHER
EMPLOYEE MISCONDUCT, WHETHER NOW IN EFFECT OR SUBSEQUENTLY PROMULGATED OR
REVISED; (III) EXECUTIVE'S CONVICTION FOR, OR ENTRY OF A PLEA OF NO CONTEST WITH
RESPECT TO, ANY FELONY, CRIME OF MORAL TURPITUDE, OR OTHER CRIME THAT ADVERSELY