as it may be extended or terminated, is herein referred to as the "Employment
Term").
2.2
Termination.
The Employment Term, Executive's employment and,
except as provided herein, the obligations of each party may be terminated as
follows:
(A)
BY THE COMPANY IMMEDIATELY FOR CAUSE (AS HEREINAFTER DEFINED).
(B)
BY THE COMPANY IMMEDIATELY WITHOUT CAUSE.
(C)
AUTOMATICALLY, WITHOUT THE ACTION OF EITHER PARTY, UPON THE DEATH
OF EXECUTIVE.
(D)
BY EITHER PARTY UPON A DETERMINATION OF TOTAL DISABILITY (AS
HEREINAFTER DEFINED) OF EXECUTIVE.
(E)
VOLUNTARILY BY EXECUTIVE.
(F)
BY THE COMPANY, UPON A "CHANGE OF CONTROL" WHICH FOLLOWS A
"TRIGGERING EVENT" (AS SUCH TERMS ARE HEREINAFTER DEFINED) THAT RESULTS IN A
TERMINATION OF THE EXECUTIVE WITHIN THE REMAINING TERM OF THE AGREEMENT OR A
ONE-YEAR PERIOD AFTER THE OCCURRENCE OF THE TRIGGERING EVENT, WHICHEVER IS LESS.
2.3
Definitions of "Cause," "Total Disability, "Triggering Event",
"Good Reason" and "Change of Control".
(A)
FOR THE PURPOSE OF THIS AGREEMENT, "CAUSE" SHALL MEAN:
(I)
CONDUCT AMOUNTING TO FRAUD, EMBEZZLEMENT OR ILLEGAL MISCONDUCT IN
CONNECTION WITH EXECUTIVE'S DUTIES UNDER THIS AGREEMENT OR AS AN EMPLOYEE OF THE
COMPANY;
(II)
CONDUCT THAT THE COMPANY REASONABLY BELIEVES HAS BROUGHT THE
COMPANY INTO SUBSTANTIAL PUBLIC DISGRACE OR DISREPUTE;
(III)
FAILURE OF EXECUTIVE TO PERFORM HIS DUTIES HEREUNDER AS
REASONABLY DIRECTED BY THE COMPANY AFTER THE COMPANY PROVIDES WRITTEN NOTICE TO
THE EXECUTIVE OF THE FAILURE TO PERFORM; PROVIDED THAT EXECUTIVE SHALL HAVE TEN
(10) BUSINESS DAYS FOLLOWING RECEIPT OF THE NOTICE TO CURE THE FAILURE TO
PERFORM;
(IV)
EXECUTIVE'S ACTIONS OR OMISSIONS CONSTITUTE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT;
(V)
ANY OTHER MATERIAL BREACH OF THIS AGREEMENT OR ANY OTHER AGREEMENT
TO WHICH EXECUTIVE AND THE COMPANY ARE A PARTY OR ANY MATERIAL BREACH OF ANY
WRITTEN POLICY ADOPTED BY THE COMPANY CONCERNING CONFLICTS OF INTEREST,
STANDARDS OF BUSINESS CONDUCT OR FAIR EMPLOYMENT PRACTICES AND ANY OTHER SIMILAR
MATTER, PROVIDED THAT THE COMPANY HAS PROVIDED WRITTEN NOTICE OF THE BREACH TO
EXECUTIVE AND EXECUTIVE HAS FAILED TO CURE THE BREACH WITHIN TEN (10) DAYS OF
RECEIVING NOTICE; OR
(VI)
FAILURE OF EXECUTIVE TO COMPLY WITH RULES AND POLICIES WHICH THE
COMPANY HAS ADOPTED OR MAY ADOPT FROM TIME TO TIME.
2
(B)
FOR PURPOSES OF THIS AGREEMENT, "TOTAL DISABILITY" SHALL MEAN THE
EXECUTIVE'S FAILURE OR INABILITY TO SUBSTANTIALLY PERFORM HIS DUTIES HEREUNDER
DUE TO ACCIDENT OR ILLNESS FOR A PERIOD TOTALING SIX (6) MONTHS (WHETHER OR NOT
CONSECUTIVE) DURING ANY PERIOD OF TWELVE (12) MONTHS.
THE DETERMINATION OF
WHETHER A TOTAL DISABILITY HAS OCCURRED SHALL BE BASED ON THE DETERMINATION OF A
PHYSICIAN MUTUALLY ACCEPTABLE TO THE COMPANY AND EXECUTIVE.
IF THE COMPANY AND
EXECUTIVE DO NOT AGREE ON THE SELECTION OF A PHYSICIAN, THEN EACH PARTY SHALL
SELECT A PHYSICIAN WHO SHALL THEN COLLECTIVELY SELECT A PHYSICIAN.
NOTHING
HEREIN SHALL LIMIT EXECUTIVE'S RIGHT TO RECEIVE ANY PAYMENTS TO WHICH EXECUTIVE
MAY BE ENTITLED UNDER ANY DISABILITY OR EMPLOYEE BENEFIT PLAN OF THE COMPANY OR
UNDER ANY DISABILITY OR INSURANCE POLICY OR PLAN.
DURING A PERIOD OF TOTAL