OTHER EMPLOYMENT OR TAKE ANY OTHER ACTION BY WAY OF
MITIGATION OF THE AMOUNTS PAYABLE TO YOU UNDER ANY OF THE PROVISIONS OF THIS
LETTER AGREEMENT, NOR SHALL THE AMOUNT OF ANY PAYMENT HEREUNDER BE REDUCED BY
ANY COMPENSATION EARNED BY YOU AS A RESULT OF EMPLOYMENT BY A SUBSEQUENT
EMPLOYER, EXCEPT AS PROVIDED IN SECTION 7(III) HEREOF.
9.
DEFINITIONS.
(I)
"CAUSE" WILL MEAN:
(A) YOUR CONVICTION
OF A FELONY INVOLVING MORAL TURPITUDE OR MISAPPROPRIATION OF PROPERTY OF THE
COMPANY; (B) YOUR ENGAGING IN CONDUCT OR ACTIVITIES THAT CONSTITUTES DISLOYALTY
TO THE COMPANY AND SUCH CONDUCT OR ACTIVITIES ARE MATERIALLY DAMAGING TO THE
PROPERTY, BUSINESS OR REPUTATION OF THE COMPANY; (C) YOUR FAILURE OR REFUSAL TO
COMPLY WITH ANY WRITTEN DIRECTION OF THE BOARD OF DIRECTORS OF THE COMPANY OR A
MORE SENIOR EXECUTIVE OF THE COMPANY; (D) YOUR EMBEZZLEMENT OF COMPANY FUNDS OR
YOUR KNOWING, AND WITH INTENT, UNLAWFUL APPROPRIATION OF ANY CORPORATE
OPPORTUNITY OF THE COMPANY; (E) YOUR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE IN
THE PERFORMANCE OF YOUR DUTIES TO THE COMPANY THAT HAS OR COULD REASONABLY BE
EXPECTED TO HAVE AN ADVERSE EFFECT ON THE COMPANY; OR (F) YOUR MATERIAL BREACH
OF THIS LETTER AGREEMENT OR ANY OTHER AGREEMENT WITH THE COMPANY, OR A MATERIAL
VIOLATION OF THE COMPANY'S CODE OF CONDUCT OR OTHER WRITTEN POLICY.
ANY
DETERMINATION OF CAUSE BY THE COMPANY WILL BE MADE BY A RESOLUTION APPROVED BY A
MAJORITY OF THE MEMBERS OF THE COMPANY'S BOARD OF DIRECTORS, PROVIDED THAT NO
SUCH DETERMINATION MAY BE MADE UNTIL YOU HAVE BEEN GIVEN WRITTEN NOTICE
DETAILING THE SPECIFIC CAUSE EVENT AND A PERIOD OF THIRTY (30) DAYS FOLLOWING
RECEIPT OF SUCH NOTICE TO CURE SUCH EVENT (IF SUSCEPTIBLE TO CURE).
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, YOUR RIGHT TO CURE
WILL NOT APPLY IF THERE ARE HABITUAL OR REPEATED BREACHES BY YOU.
(II)
"GOOD REASON"
WILL MEAN THE OCCURRENCE OF
ANY OF THE FOLLOWING EVENTS, WITHOUT YOUR EXPRESS WRITTEN CONSENT, UNLESS SUCH
EVENTS ARE FULLY CORRECTED IN ALL MATERIAL RESPECTS BY THE COMPANY WITHIN THIRTY
(30) DAYS FOLLOWING WRITTEN NOTIFICATION BY YOU TO THE COMPANY THAT YOU INTEND
TO TERMINATE YOUR EMPLOYMENT HEREUNDER FOR
3
ONE OF THE REASONS SET FORTH BELOW:
(A) A MATERIAL DIMINUTION IN YOUR BASE
SALARY; (B) A MATERIAL DIMINUTION IN YOUR DUTIES, AUTHORITIES OR
RESPONSIBILITIES (OTHER THAN TEMPORARILY WHILE PHYSICALLY OR MENTALLY
INCAPACITATED OR AS REQUIRED BY APPLICABLE LAW); PROVIDED THAT FOR PURPOSES OF
THIS CLAUSE (B), A REDUCTION OF YOUR DUTIES, AUTHORITIES OR RESPONSIBILITIES
SOLELY AS A RESULT OF THE COMPANY CEASING TO BE A PUBLICLY TRADED CORPORATION
WILL NOT CONSTITUTE GOOD REASON HEREUNDER; AND PROVIDED, FURTHER, THAT IF YOU
ARE PROMOTED TO A MORE SENIOR FINANCIAL POSITION WITH THE COMPANY, ANY MATERIAL
DIMINUTION IN YOUR DUTIES, AUTHORITIES OR RESPONSIBILITIES ASSOCIATED WITH SUCH
MORE SENIOR FINANCIAL POSITION WITH THE COMPANY WILL CONSTITUTE GOOD REASON
HEREUNDER; (C) A RELOCATION OF YOUR PRIMARY WORK LOCATION BY MORE THAN FIFTY
(50) MILES FROM ITS THEN CURRENT LOCATION; OR (D) THE