EMPLOYEE TO THE COMPANY OR ITS SUCCESSOR AND UNLESS IT IS NOT CORRECTED BY THE
COMPANY OR ITS SUCCESSOR AND THE EMPLOYEE HAS NOT BEEN REASONABLY COMPENSATED
FOR ANY LOSS OR DAMAGES RESULTING THEREFROM WITHIN THIRTY (30) DAYS OF THE
COMPANY'S OR SUCCESSOR'S RECEIPT OF SUCH WRITTEN NOTICE:
(A)
THE ASSIGNMENT TO THE EXECUTIVE OF DUTIES
INCONSISTENT IN ANY MATERIAL RESPECT WITH THE EXECUTIVE'S POSITION (INCLUDING
STATUS, OFFICES, TITLES AND REPORTING REQUIREMENTS), AUTHORITY OR
RESPONSIBILITIES, OR ANY OTHER ACTION OR OMISSION BY THE COMPANY WHICH RESULTS
IN A MATERIAL DIMINUTION IN SUCH POSITION, AUTHORITY OR RESPONSIBILITIES;
(B)
A MATERIAL BREACH OF THIS AGREEMENT BY THE
COMPANY;
(C)
A MATERIAL REDUCTION IN THE EMPLOYEE'S BASE
SALARY; OR
(D)
A CHANGE BY THE COMPANY IN THE LOCATION AT
WHICH THE EMPLOYEE PERFORMS HIS/HER PRINCIPAL DUTIES FOR THE COMPANY TO A NEW
LOCATION THAT IS BOTH (I) OUTSIDE A RADIUS OF 50 MILES FROM THE EMPLOYEE'S
PRINCIPAL RESIDENCE AND (II) MORE THAN 30 MILES FROM THE LOCATION AT WHICH THE
EMPLOYEE PERFORMED HIS/HER PRINCIPAL DUTIES FOR THE COMPANY.
4.3
DEFINITION OF "CAUSE".
FOR PURPOSES OF THIS
AGREEMENT, "CAUSE" IS DEFINED AS: (I) A GOOD FAITH FINDING BY NO FEWER THAN
TWO-THIRDS OF THE MEMBERS OF THE BOARD (EXCLUDING THE EMPLOYEE, IF APPLICABLE)
OF (A) THE EMPLOYEE'S FAILURE TO (1) PERFORM REASONABLY ASSIGNED LAWFUL DUTIES
OR (2) COMPLY WITH A LAWFUL INSTRUCTION OF THE BOARD, CHIEF EXECUTIVE OFFICER OR
SUCH OTHER EXECUTIVE OFFICER WITH DIRECT SUPERVISORY AUTHORITY OVER THE EMPLOYEE
SO LONG AS, IN THE CASE OF (2), THE INSTRUCTION IS CONSISTENT WITH THE SCOPE AND
RESPONSIBILITIES OF THE EMPLOYEE'S POSITION, OR (B) THE EMPLOYEE'S DISHONESTY,
WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, OR (C) THE EMPLOYEE'S SUBSTANTIAL AND
MATERIAL FAILURE OR REFUSAL TO PERFORM ACCORDING TO, OR TO COMPLY WITH, THE
POLICIES, PROCEDURES OR PRACTICES ESTABLISHED BY THE COMPANY OR THE BOARD AND,
IN THE CASE OF (A) OR (C), THE EMPLOYEE HAS
2
HAD TEN (10) DAYS WRITTEN NOTICE TO CURE HIS/HER FAILURE TO SO PERFORM OR
COMPLY; OR (II) THE EMPLOYEE'S INDICTMENT,
OR THE ENTERING OF A GUILTY PLEA OR
PLEA OF "NO CONTEST" WITH RESPECT TO, A FELONY OR ANY CRIME INVOLVING MORAL
TURPITUDE.
5.
TERMINATION WITHOUT CAUSE, TERMINATION BY REASON
OF DEATH OR DISABILITY, RESIGNATION FOR GOOD REASON.
5.1
IF THE EMPLOYEE'S EMPLOYMENT WITH THE
COMPANY IS TERMINATED BY REASON OF THE EMPLOYEE'S DEATH OR DISABILITY (AS
DEFINED IN SECTION 5.2), BY THE COMPANY WITHOUT CAUSE (AS DEFINED IN
SECTION 4.3), OR BY THE EMPLOYEE'S VOLUNTARY RESIGNATION FOR GOOD REASON (AS
DEFINED IN SECTION 4.2), OTHER THAN IN CONNECTION WITH A CHANGE IN CONTROL (AS
DEFINED IN SECTION 6.1(A)), THEN THE EMPLOYEE SHALL BE PAID ALL ACCRUED AND
UNPAID BASE SALARY AND ANY ACCRUED BUT UNUSED VACATION THROUGH THE DATE OF
TERMINATION.
IN ADDITION, IF THE EMPLOYEE'S EMPLOYMENT WITH THE COMPANY IS
TERMINATED BY REASON OF THE EMPLOYEE'S DISABILITY, BY THE COMPANY WITHOUT CAUSE,
OR BY THE EMPLOYEE'S VOLUNTARY RESIGNATION FOR GOOD REASON, SUBJECT TO THE
EMPLOYEE'S EXECUTION AND NON-REVOCATION