DEPRIVE EXECUTIVE OF ANY MATERIAL
FRINGE BENEFIT ENJOYED IMMEDIATELY PRIOR TO THE CHANGE IN CONTROL, OR THE
FAILURE BY THE COMPANY TO PROVIDE EXECUTIVE WITH THE NUMBER OF PAID VACATION OR
SICK DAYS TO WHICH EXECUTIVE IS ENTITLED IMMEDIATELY PRIOR TO THE CHANGE IN
CONTROL, PROVIDED, HOWEVER, THAT THE COMPANY MAY AMEND ANY SUCH PLAN OR PROGRAMS
AS LONG AS SUCH AMENDMENTS DO NOT REDUCE ANY BENEFITS TO WHICH EXECUTIVE WOULD
BE ENTITLED;
(V)
THE FAILURE OF THE COMPANY TO OBTAIN A SATISFACTORY AGREEMENT FROM
ANY SUCCESSOR TO ASSUME AND AGREE TO PERFORM THIS AGREEMENT, AS CONTEMPLATED IN
SECTION 8;
(VI)
THE TAKING OF ANY ACTION BY THE COMPANY THAT WOULD MATERIALLY
ADVERSELY AFFECT THE PHYSICAL CONDITIONS EXISTING AT THE TIME OF THE CHANGE IN
CONTROL IN OR UNDER WHICH EXECUTIVE PERFORMS HIS EMPLOYMENT DUTIES;
(VII)
ANY MATERIAL BREACH OF THIS AGREEMENT BY THE COMPANY; OR
(viii)
any purported termination of Executive's employment which is not
made pursuant to a Notice of Termination satisfying the requirements of this
Agreement; for purposes of this Agreement, no such purported termination shall
be effective.
(D)
NOTICE OF TERMINATION. ANY PURPORTED TERMINATION OF EXECUTIVE'S
EMPLOYMENT BY THE COMPANY OR BY EXECUTIVE SHALL BE COMMUNICATED BY WRITTEN
NOTICE OF TERMINATION TO THE OTHER PARTY HERETO IN ACCORDANCE WITH SECTION 7.
FOR PURPOSES OF THIS AGREEMENT, A "NOTICE OF TERMINATION" SHALL MEAN A NOTICE
WHICH SHALL INDICATE THE SPECIFIC TERMINATION PROVISION IN THIS AGREEMENT RELIED
UPON AND SHALL SET FORTH A SUMMARY OF THE FACTS AND CIRCUMSTANCES CLAIMED TO
PROVIDE A BASIS FOR TERMINATION OF EXECUTIVE'S EMPLOYMENT.
(E)
DATE OF TERMINATION. FOR PURPOSES OF THIS AGREEMENT, "DATE OF
TERMINATION" SHALL MEAN:
(I)
IF EXECUTIVE'S EMPLOYMENT IS TERMINATED FOR DISABILITY AS DEFINED
BY ANY COMPANY-SPONSORED DISABILITY INSURANCE POLICY, 30 DAYS AFTER NOTICE OF
TERMINATION IS GIVEN; AND
(II)
IF EXECUTIVE'S EMPLOYMENT IS TERMINATED PURSUANT TO SUBSECTIONS
(B) OR (C) ABOVE OR FOR ANY OTHER REASON (OTHER THAN DEATH OR DISABILITY), THE
DATE SPECIFIED IN THE NOTICE OF TERMINATION (WHICH, IN THE CASE OF A TERMINATION
PURSUANT TO SUBSECTION (B) ABOVE SHALL NOT BE LESS THAN 10 DAYS, AND IN THE CASE
OF A TERMINATION PURSUANT TO SUBSECTION (C) ABOVE SHALL NOT BE LESS THAN 10 NOR
MORE THAN 30 DAYS, RESPECTIVELY, FROM THE DATE SUCH NOTICE OF TERMINATION IS
GIVEN).
(F)
DISPUTE OF TERMINATION. IF, WITHIN 10 DAYS AFTER ANY NOTICE OF
TERMINATION IS GIVEN, THE PARTY RECEIVING SUCH NOTICE OF TERMINATION NOTIFIES
THE OTHER PARTY THAT A DISPUTE EXISTS CONCERNING THE TERMINATION, THE DATE OF
TERMINATION SHALL BE THE DATE ON WHICH THE DISPUTE IS FINALLY DETERMINED, EITHER
BY MUTUAL WRITTEN AGREEMENT OF THE PARTIES, OR BY A FINAL JUDGMENT, ORDER OR
DECREE OF A COURT OF COMPETENT JURISDICTION (WHICH IS NOT APPEALABLE OR THE TIME
FOR APPEAL THEREFROM HAVING EXPIRED AND NO APPEAL HAVING BEEN PERFECTED);
PROVIDED, THAT THE DATE OF TERMINATION SHALL BE EXTENDED BY A NOTICE OF DISPUTE
ONLY IF SUCH NOTICE IS GIVEN IN GOOD FAITH AND THE PARTY GIVING SUCH NOTICE