BY CLAUSE
(II) OF THE PRECEDING SENTENCE, THE EXECUTIVE SHALL CONTINUE TO RECEIVE THE
COMPENSATION AND EMPLOYEE BENEFITS THAT HE WAS RECEIVING IMMEDIATELY PRIOR TO
THE EXPIRATION OF THE EMPLOYMENT TERM.
(D)
UPON A TERMINATION OF THE EXECUTIVE'S
EMPLOYMENT BY THE COMPANY FOR CAUSE, OR UPON TERMINATION BY THE EXECUTIVE WITH
30 DAYS' WRITTEN NOTICE GIVEN TO THE COMPANY (OTHER THAN A CONSTRUCTIVE
TERMINATION WITHOUT CAUSE), THE EXECUTIVE SHALL BE
8
ENTITLED TO EARNED BUT UNPAID BASE SALARY AND BENEFITS THROUGH THE DATE OF
TERMINATION, AND THE EXECUTIVE SHALL NOT BE ENTITLED TO ANY OTHER PAYMENTS OR
BENEFITS.
(E)
UPON ANY TERMINATION OF THE EXECUTIVE'S
EMPLOYMENT OTHER THAN BY THE COMPANY FOR CAUSE, THE EXECUTIVE AND HIS FAMILY
SHALL BE ENTITLED TO CONTINUED MEDICAL BENEFITS UNDER (AND IN ACCORDANCE WITH
THE TERMS OF) THE COMPANY'S BENEFIT PLANS FOR 1 YEAR FROM THE DATE OF
TERMINATION.
For purposes of this Agreement:
(I)
A "CONSTRUCTIVE TERMINATION WITHOUT
CAUSE" MEANS A TERMINATION OF THE EXECUTIVE'S EMPLOYMENT DURING THE EMPLOYMENT
TERM BY THE EXECUTIVE FOLLOWING THE OCCURRENCE OF ANY OF THE FOLLOWING EVENTS
WITHOUT THE EXECUTIVE'S PRIOR CONSENT: (A) FAILURE BY THE COMPANY TO CONTINUE
THE EXECUTIVE AS THE COMPANY'S CHIEF EXECUTIVE OFFICER (EXCLUDING A PROMOTION)
AND AS A MEMBER OF THE BOARD; (B) ANY MATERIAL DIMINUTION IN THE EXECUTIVE'S
WORKING CONDITIONS, RESPONSIBILITIES OR AUTHORITIES; (C) ASSIGNMENT TO THE
EXECUTIVE OF DUTIES THAT ARE INCONSISTENT, IN A MATERIAL RESPECT, WITH THE SCOPE
OF DUTIES AND RESPONSIBILITIES ASSOCIATED WITH HIS POSITION AS DESCRIBED IN
SECTION 2(B) HEREOF, RECOGNIZING FOR THIS PURPOSE THAT THE COMPANY'S CURRENT
CHAIRMAN OF THE BOARD, JAMES L. MOONEY,
IS AN EMPLOYEE OF THE COMPANY AND
PERFORMS SIGNIFICANT MANAGEMENT SERVICES WITH RESPECT TO THE COMPANY; (D) ANY
CHANGE THAT CAUSES THE EXECUTIVE TO NO LONGER REPORT TO THE BOARD; (E) THE
FAILURE OF THE COMPANY TO MAINTAIN COMMERCIALLY REASONABLE DIRECTORS' AND
OFFICERS' LIABILITY INSURANCE; (F) A MATERIAL BREACH BY THE COMPANY (OR ANY
MEMBER OF THE COMPANY AFFILIATED GROUP) OF A FUNDAMENTAL TERM OF THIS AGREEMENT;
OR (G) A CHANGE IN
9
CONTROL OCCURS AND DURING THE PERIOD COMMENCING ON THE DATE OF THE CHANGE IN
CONTROL AND ENDING ON THE FIRST ANNIVERSARY THEREOF THE EMPLOYMENT TERM IS NOT
RENEWED.
FOR PURPOSES OF THIS AGREEMENT, A "CHANGE IN CONTROL" IS DEFINED IN
APPENDIX A ATTACHED HERETO, AND INCORPORATED BY REFERENCE.
THE EXECUTIVE SHALL
GIVE THE COMPANY 10 DAYS' NOTICE OF THE EXECUTIVE'S INTENTION TO TERMINATE THE
EXECUTIVE'S EMPLOYMENT AND CLAIM THAT A CONSTRUCTIVE TERMINATION WITHOUT CAUSE
(AS DEFINED IN (A), (B), (C), (D), (E), (F) OR (G) ABOVE) HAS OCCURRED, AND SUCH
NOTICE SHALL DESCRIBE THE FACTS AND CIRCUMSTANCES IN SUPPORT OF SUCH CLAIM IN
REASONABLE DETAIL.
THE COMPANY SHALL HAVE 10 DAYS THEREAFTER TO CURE SUCH FACTS
AND CIRCUMSTANCES IF POSSIBLE, FAILING WHICH THE EXECUTIVE'S EMPLOYMENT SHALL
TERMINATE.
(II)
A "TERMINATION WITHOUT CAUSE" MEANS A
TERMINATION OF THE EXECUTIVE'S EMPLOYMENT DURING THE EMPLOYMENT TERM BY THE
COMPANY OTHER THAN FOR CAUSE.
(III)
"CAUSE" MEANS (X) THE EXECUTIVE IS CONVICTED