OF
DOUBT, EXCLUDING ANY FAILURE DUE TO PHYSICAL OR MENTAL ILLNESS) AND SUCH FAILURE
CONTINUES AFTER A WRITTEN DEMAND FOR SUBSTANTIAL PERFORMANCE IS DELIVERED BY THE
COMPANY TO THE PARTICIPANT THAT SPECIFICALLY IDENTIFIES THE MANNER IN WHICH THE
PARTICIPANT HAS FAILED TO PERFORM; (II) AN INTENTIONAL ACT OF ILLEGAL CONDUCT OR
GROSS MISCONDUCT THAT IS DEMONSTRABLY INJURIOUS (OTHER THAN TO A DE MINIMIS
EXTENT) TO THE BUSINESS, REPUTATION OR REGULATORY RELATIONSHIPS OF THE COMPANY;
(III) AN INTENTIONAL ACT OF FRAUD, EMBEZZLEMENT OR THEFT IN CONNECTION WITH THE
BUSINESS OF THE COMPANY; (IV) INTENTIONAL DISCLOSURE OF CONFIDENTIAL INFORMATION
OR TRADE SECRETS OF THE COMPANY OR CONFIDENTIAL INFORMATION RELATING TO
CUSTOMERS OF THE COMPANY OR ITS PARENT, A SUBSIDIARY OR AFFILIATE; (V) AN ACT
CONSTITUTING A FELONY OR A MISDEMEANOR INVOLVING MORAL TURPITUDE FOR WHICH THE
PARTICIPANT IS CONVICTED BY ANY FEDERAL, STATE OR LOCAL AUTHORITY, OR TO WHICH
THE PARTICIPANT ENTERS A PLEA OF GUILTY OR NOLO CONTENDERE; (VI) AN ACT OR
OMISSION THAT CAUSES THE PARTICIPANT TO BE DISQUALIFIED OR BARRED BY ANY
GOVERNMENTAL OR SELF-REGULATORY AUTHORITY FROM SERVING IN HIS OR HER EMPLOYMENT
CAPACITY OR LOSING ANY GOVERNMENTAL OR SELF- REGULATORY LICENSE THAT IS
REASONABLY NECESSARY FOR THE PARTICIPANT TO PERFORM HIS OR HER RESPONSIBILITIES
TO THE COMPANY; OR (VII) INTENTIONAL BREACH OF CORPORATE FIDUCIARY DUTY
INVOLVING PERSONAL PROFIT. FOR THE PURPOSES OF THIS PLAN, NO ACT, OR FAILURE TO
ACT, ON THE PART OF THE PARTICIPANT SHALL BE DEEMED "INTENTIONAL" UNLESS DONE,
OR OMITTED TO BE DONE, BY THE PARTICIPANT NOT IN GOOD FAITH AND WITHOUT
REASONABLE BELIEF THAT HIS OR HER ACTION OR OMISSION WAS IN THE BEST INTEREST OF
THE COMPANY. NOTWITHSTANDING THE FOREGOING, THE PARTICIPANT SHALL NOT BE DEEMED
TO HAVE BEEN TERMINATED FOR CAUSE HEREUNDER UNLESS AND UNTIL THERE SHALL HAVE
BEEN DELIVERED TO THE PARTICIPANT A COPY OF A RESOLUTION DULY ADOPTED BY THE
AFFIRMATIVE VOTE OF NOT LESS THAN TWO-THIRDS OF THE MEMBERS OF THE BOARD THEN IN
OFFICE AT A MEETING OF THE BOARD CALLED AND HELD FOR SUCH PURPOSE (AFTER
REASONABLE NOTICE TO THE PARTICIPANT AND AN OPPORTUNITY FOR THE PARTICIPANT,
TOGETHER WITH HIS OR HER COUNSEL TO BE HEARD BEFORE THE BOARD), FINDING THAT, IN
THE GOOD FAITH OPINION OF THE BOARD, THE PARTICIPANT HAD COMMITTED AN ACT SET
FORTH ABOVE IN CLAUSES (I) THROUGH (VII) AND SPECIFYING THE PARTICULARS THEREOF
IN DETAIL. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE PARTICIPANT OR HIS OR HER
BENEFICIARIES TO CONTEST THE VALIDITY OR PROPRIETY OF ANY SUCH DETERMINATION.
(F)
"CHANGE IN CONTROL" MEANS THE OCCURRENCE OF ANY ONE OF THE
FOLLOWING EVENTS:
(I)
ANY "PERSON" OR "GROUP" (AS SUCH TERMS ARE DEFINED IN
SECTION 13(D) OF THE SECURITIES EXCHANGE ACT OF 1934 (THE "EXCHANGE ACT") AND
THE RULES AND REGULATIONS PROMULGATED THEREUNDER) IS OR BECOMES THE "BENEFICIAL
OWNER" (WITHIN THE MEANING OF RULE 13D-3 UNDER THE EXCHANGE ACT), DIRECTLY OR
INDIRECTLY, OF SECURITIES OF THE COMPANY, OR OF ANY ENTITY RESULTING FROM A
MERGER OR CONSOLIDATION INVOLVING THE COMPANY,