SO
TOTALLY DISABLED SHALL BE DEEMED TO CONSTITUTE CONCLUSIVE EVIDENCE OF HIS
DISABILITY. THE DETERMINATION OF SUCH PHYSICIAN MADE IN WRITING TO THE COMPANY
AND TO EMPLOYEE SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES OF THIS
AGREEMENT.
TERMINATION BY THE COMPANY OR BY EMPLOYEE OF HIS EMPLOYMENT BASED ON
"DISABILITY" SHALL BE DEEMED TO HAVE OCCURRED IF, WITHIN THIRTY (30) DAYS AFTER
WRITTEN NOTICE OF TERMINATION (AS HEREINAFTER DEFINED) IS GIVEN, EMPLOYEE SHALL
NOT HAVE RETURNED TO THE FULL-TIME PERFORMANCE OF HIS DUTIES.
(C)
RETIREMENT.
TERMINATION BY THE COMPANY OR EMPLOYEE OF HIS
EMPLOYMENT BASED ON "RETIREMENT" SHALL MEAN TERMINATION IN ACCORDANCE WITH THE
COMPANY'S RETIREMENT POLICY, GENERALLY APPLICABLE TO ITS SALARIED EMPLOYEES OR
IN ACCORDANCE WITH ANY RETIREMENT ARRANGEMENT ESTABLISHED WITH EMPLOYEE'S
CONSENT.
(D)
CAUSE.
TERMINATION BY THE COMPANY OF EMPLOYEE'S EMPLOYMENT FOR
"CAUSE" SHALL MEAN TERMINATION UPON:
(I)
THE CONTINUED FAILURE BY EMPLOYEE TO SUBSTANTIALLY PERFORM HIS
DUTIES WITH THE COMPANY (OTHER THAN ANY SUCH FAILURE RESULTING FROM HIS
INCAPACITY DUE TO DISABILITY OR ANY SUCH ACTUAL OR ANTICIPATED FAILURE RESULTING
FROM TERMINATION BY EMPLOYEE FOR GOOD REASON) AFTER A WRITTEN DEMAND FOR
SUBSTANTIAL PERFORMANCE IS DELIVERED TO EMPLOYEE BY
4
THE BOARD, WHICH DEMAND SPECIFICALLY IDENTIFIES THE MANNER IN WHICH THE BOARD
BELIEVES THAT EMPLOYEE HAS NOT SUBSTANTIALLY PERFORMED HIS DUTIES;
(II)
EMPLOYEE ENGAGES IN CONDUCT WHICH IS DEMONSTRABLY AND MATERIALLY
INJURIOUS TO THE COMPANY OR ANY OF ITS AFFILIATES, MONETARILY OR OTHERWISE;
(III)
EMPLOYEE COMMITS FRAUD, BRIBERY, EMBEZZLEMENT OR OTHER MATERIAL
DISHONESTY WITH RESPECT TO THE BUSINESS OF THE COMPANY OR ANY OF ITS AFFILIATES,
OR THE COMPANY DISCOVERS THAT EMPLOYEE HAS COMMITTED ANY SUCH ACT IN THE PAST
WITH RESPECT TO A PREVIOUS EMPLOYER;
(IV)
EMPLOYEE IS INDICTED FOR ANY FELONY OR ANY CRIMINAL ACT INVOLVING
MORAL TURPITUDE, OR THE COMPANY DISCOVERS THAT EMPLOYEE HAS BEEN CONVICTED OF
ANY SUCH ACT IN THE PAST;
(V)
EMPLOYEE COMMITS A BREACH OF ANY OF THE COVENANTS,
REPRESENTATIONS, TERMS OR PROVISIONS OF THIS AGREEMENT;
(VI)
EMPLOYEE VIOLATES ANY INSTRUCTIONS OR POLICIES OF THE COMPANY WITH
RESPECT TO THE OPERATION OF ITS BUSINESS OR AFFAIRS; OR
(VII)
EMPLOYEE USES ILLEGAL DRUGS.
(E)
GOOD REASON.
FOR PURPOSES OF THIS AGREEMENT, "GOOD REASON" SHALL
MEAN, WITHOUT EMPLOYEE'S EXPRESS WRITTEN CONSENT:
(I)
THE MATERIAL FAILURE BY THE COMPANY, WITHOUT EMPLOYEE'S CONSENT,
TO PAY TO EMPLOYEE ANY PORTION OF HIS CURRENT COMPENSATION WITHIN TEN (10) DAYS
OF THE DATE ANY SUCH COMPENSATION PAYMENT IS DUE;
(II)
EMPLOYER COMMITS A MATERIAL BREACH OF ANY OF THE COVENANTS,
REPRESENTATIONS, TERMS OR PROVISIONS HEREOF, AND SUCH BREACH IS NOT CURED WITHIN
THIRTY (30) DAYS AFTER WRITTEN NOTICE THEREOF TO THE COMPANY, WHICH NOTICE SHALL
IDENTIFY IN REASONABLE DETAIL THE NATURE OF THE BREACH AND GIVES COMPANY AN
OPPORTUNITY TO RESPOND, EXCLUDING, HOWEVER, FAILURE TO PAY SALARY WITHIN TEN
(10) DAYS AS FURTHER PROVIDED IN SUBSECTION (I) ABOVE;
(III)
ANY MATERIAL DIMINUTION OF EMPLOYEE'S TITLE, FUNCTION, DUTIES,
AUTHORITY OR RESPONSIBILITIES (INCLUDING REPORTING REQUIREMENTS);
(IV)
A REDUCTION IN EMPLOYEE'S SALARY AS IN EFFECT ON THE DATE