BY THE COMPANY AND THE EXECUTIVE, THE EXECUTIVE SHALL
BECOME UNABLE TO PERFORM HIS DUTIES HEREUNDER DUE TO DISABILITY, THE COMPANY MAY
TERMINATE THE EXECUTIVE'S EMPLOYMENT HEREUNDER.
AS USED IN THIS AGREEMENT, THE
TERM "DISABILITY" SHALL MEAN INABILITY OF THE EXECUTIVE, DUE TO
4
PHYSICAL OR MENTAL CONDITION, TO PERFORM THE ESSENTIAL FUNCTIONS OF THE
EXECUTIVE'S JOB, AFTER CONSIDERATION OF THE AVAILABILITY OF REASONABLE
ACCOMMODATIONS, FOR MORE THAN 180 TOTAL CALENDAR DAYS DURING ANY PERIOD OF 12
CONSECUTIVE MONTHS.
(C)
FOR CAUSE.
THE COMPANY MAY TERMINATE THE EXECUTIVE'S EMPLOYMENT
HEREUNDER FOR CAUSE.
FOR PURPOSES OF THIS AGREEMENT, THE COMPANY SHALL HAVE
"CAUSE" TO TERMINATE THE EXECUTIVE'S EMPLOYMENT HEREUNDER UPON A DETERMINATION
BY THE COMPANY THAT THE EXECUTIVE (I) HAS COMMITTED FRAUD OR MISAPPROPRIATED,
STOLEN OR EMBEZZLED FUNDS OR PROPERTY FROM THE COMPANY OR AN AFFILIATE OF THE
COMPANY OR SECURED OR ATTEMPTED TO SECURE PERSONALLY ANY PROFIT IN CONNECTION
WITH ANY TRANSACTION ENTERED INTO ON BEHALF OF THE COMPANY OR ANY AFFILIATE OF
THE COMPANY, (II) HAS BEEN CONVICTED OF A FELONY IN A FINAL NON-APPEALABLE
JUDGMENT, OR ENTERED A PLEA OF GUILTY OR "NOLO CONTENDRE" TO A FELONY, WHICH IS
LIKELY TO CAUSE MATERIAL HARM TO THE COMPANY'S (OR ANY AFFILIATE OF THE COMPANY)
BUSINESS, CUSTOMER OR SUPPLIER RELATIONS, FINANCIAL CONDITION OR PROSPECTS,
(III) HAS, NOTWITHSTANDING NOT LESS THAN 30 DAYS' PRIOR WRITTEN NOTICE FROM THE
COMPANY, WILLFULLY FAILED TO PERFORM (OTHER THAN BY REASON OF ILLNESS OR
TEMPORARY DISABILITY ) HIS MATERIAL DUTIES HEREUNDER, (IV) HAS KNOWINGLY
VIOLATED OR BREACHED ANY MATERIAL LAW OR REGULATION TO THE MATERIAL DETRIMENT OF
THE COMPANY OR ANY AFFILIATES OF THE COMPANY OR ITS BUSINESS, OR (V) HAS
BREACHED ANY NON-COMPETITION, NON-DISCLOSURE OR NON-SOLICITATION AGREEMENT
BETWEEN EXECUTIVE, AND THE COMPANY WHICH CAUSES OR IS REASONABLY LIKELY TO CAUSE
MATERIAL HARM TO THE COMPANY OR ANY OF ITS AFFILIATES.
FOR PURPOSES OF THIS
PROVISION, NO ACT OR FAILURE TO ACT, ON THE PART OF THE EXECUTIVE, SHALL BE
CONSIDERED "WILLFUL" UNLESS IT IS DONE, OR OMITTED TO BE DONE, BY THE EXECUTIVE
IN BAD FAITH OR WITHOUT REASONABLE BELIEF THAT HIS ACTION OR OMISSION WAS IN THE
BEST INTERESTS OF THE COMPANY AND ITS AFFILIATES.
(D)
WITHOUT CAUSE.
THE COMPANY MAY AT ANY TIME TERMINATE THE
EXECUTIVE'S EMPLOYMENT HEREUNDER WITHOUT CAUSE.
(E)
TERMINATION BY THE EXECUTIVE.
(I)
THE EXECUTIVE MAY TERMINATE HIS EMPLOYMENT HEREUNDER (A) FOR GOOD
REASON OR (B) AT ANY TIME AFTER THE DATE HEREOF BY GIVING SIXTY (60) DAYS PRIOR
NOTICE OF HIS INTENTION TO TERMINATE.
(II)
FOR PURPOSES OF THIS AGREEMENT, "GOOD REASON" SHALL MEAN (A) A
FAILURE BY THE COMPANY TO COMPLY WITH ANY MATERIAL PROVISION OF THIS AGREEMENT
(OTHER THAN THE COMPANY'S PAYMENT OBLIGATIONS REFERRED TO IN CLAUSE (E) BELOW)
WHICH HAS NOT BEEN CURED WITHIN THIRTY (30) DAYS AFTER NOTICE OF SUCH
NONCOMPLIANCE HAS BEEN GIVEN BY THE EXECUTIVE TO THE COMPANY, (B) THE ASSIGNMENT
TO THE EXECUTIVE OF ANY MATERIAL DUTIES INCONSISTENT WITH THE EXECUTIVE'S
POSITION WITH THE COMPANY OR A SUBSTANTIAL ADVERSE ALTERATION