THE BENEFIT OF EXECUTIVE'S SPOUSE AND OTHER ELIGIBLE DEPENDENTS.
FROM AND AFTER THE DISABILITY SUSPENSION EFFECTIVE DATE, EMPLOYER SHALL BE FREE
TO FILL EXECUTIVE'S POSITIONS; PROVIDED, HOWEVER, THAT IF EXECUTIVE IS ABLE TO
RETURN TO FULL-TIME EMPLOYMENT WITH EMPLOYER AT ANY TIME DURING THE PERIOD OF
DISABILITY SUSPENSION PRIOR TO THE DISABILITY TERMINATION DATE, EXECUTIVE SHALL
RESUME HIS POSITIONS AND DUTIES WITH EMPLOYER UNLESS EMPLOYER HAS FILLED EITHER
OF THOSE POSITIONS AND DOES NOT REAPPOINT EXECUTIVE TO BOTH SUCH POSITIONS, IN
WHICH EVENT, EXECUTIVE MAY, AT HIS OPTION:
(I)
ASSUME THE POSITION(S) AND DUTIES THAT
EMPLOYER MAY ASSIGN TO HIM AT THE SAME BASE SALARY AS WAS IN EFFECT ON THE
DISABILITY SUSPENSION EFFECTIVE DATE AND, OTHERWISE, ON THE SAME TERMS AND
CONDITIONS AS SET FORTH HEREIN; OR
(II)
IN THE EVENT THAT THE POSITION AND DUTIES
ASSIGNED TO HIM WOULD CONSTITUTE A MATERIAL DIMINUTION IN HIS AUTHORITY, DUTIES
6
OR RESPONSIBILITIES OR OTHERWISE CONSTITUTE GOOD REASON, AS HEREINAFTER DEFINED,
EXECUTIVE MAY EXERCISE HIS RIGHT TO TERMINATE THIS AGREEMENT FOR GOOD REASON
PURSUANT TO SECTION 4.5.
IN THE EVENT THAT EXECUTIVE REFUSES TO ASSUME THE POSITION AND DUTIES ASSIGNED
TO HIM PURSUANT TO CLAUSE (I) UNDER CIRCUMSTANCES THAT DO NOT CONSTITUTE GOOD
REASON, SUCH SHALL CONSTITUTE A VOLUNTARY TERMINATION BY EXECUTIVE SUBJECT TO
SECTION 4.6 BELOW.
NOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN THIS AGREEMENT TO THE CONTRARY,
THE OCCURRENCE OF A DISABILITY SUSPENSION SHALL NOT IN ANY WAY PREVENT OR
OTHERWISE LIMIT THE PARTIES FROM EXERCISING ANY OF THEIR RESPECTIVE RIGHTS TO
TERMINATE THE TERM OF EMPLOYMENT AT ANY TIME IN ACCORDANCE WITH THE TERMS OF
THIS AGREEMENT OR FROM DELIVERING NOTICE OF NON-RENEWAL PURSUANT TO SECTION 1.
FURTHER, NOTHING IN THIS SECTION SHALL BE DEEMED AS A WAIVER BY EXECUTIVE OF HIS
RIGHT TO UNPAID LEAVE UNDER THE FAMILY AND MEDICAL LEAVE ACT OF 1993, THE
AMERICANS WITH DISABILITIES ACT OF 1990, OR ANY ANALOGOUS PROVISION OF STATE
LAW.
4.4
FOR CAUSE.
SUBJECT TO COMPLIANCE WITH THE
PROCEDURE SET FORTH HEREIN, EMPLOYER WILL HAVE THE RIGHT TO TERMINATE
EXECUTIVE'S EMPLOYMENT FOR CAUSE.
FOR PURPOSES OF THIS AGREEMENT, "CAUSE"
MEANS: (I) EXECUTIVE'S WILLFUL AND CONTINUED FAILURE TO SUBSTANTIALLY PERFORM
HIS EMPLOYMENT DUTIES (OTHER THAN ANY SUCH FAILURE RESULTING FROM EXECUTIVE'S
ILLNESS OR DISABILITY, WHICH SHALL BE SUBJECT TO THE PROVISIONS OF THE PRECEDING
SECTION), OR (II) EXECUTIVE'S WILLFULLY ENGAGING IN CONDUCT (OTHER THAN CONDUCT
RELATED TO THE OPERATION OF AN AUTOMOBILE) WHICH IS DEMONSTRABLY AND MATERIALLY
INJURIOUS TO EMPLOYER, MONETARILY OR OTHERWISE; PROVIDED, HOWEVER, THAT NO ACT
OR FAILURE TO ACT, ON THE PART OF EXECUTIVE SHALL BE DEEMED "WILLFUL" UNLESS
DONE, OR OMITTED TO BE DONE, BY EXECUTIVE NOT IN GOOD FAITH AND WITHOUT
REASONABLE BELIEF THAT EXECUTIVE'S ACT OR FAILURE TO ACT, WAS IN THE BEST
INTEREST OF EMPLOYER. UPON SUCH TERMINATION, EXECUTIVE WILL THEREAFTER BE
ENTITLED TO RECEIVE ONLY THE COMPENSATION AND BENEFITS SET FORTH IN SECTION 4.1
(A) THROUGH (E) HEREINABOVE APPLICABLE TO EXPIRATION OF THE TERM DUE TO
NON-RENEWAL.
(A) PROCEDURE.
AT A MEETING