(B) WILLFUL AND CONTINUED FAILURE TO
SUBSTANTIALLY FOLLOW AND COMPLY WITH THE SPECIFIC AND LAWFUL DIRECTIVES OF THE
BOARD, AS REASONABLY DETERMINED BY THE BOARD AFTER A WRITTEN DEMAND FOR
SUBSTANTIAL PERFORMANCE IS DELIVERED TO OFFICER BY THE BOARD, WHICH DEMAND,
BASED ON A GOOD FAITH DETERMINATION OF THE BOARD AFTER REASONABLE INQUIRY,
SPECIFICALLY IDENTIFIES THE MANNER IN WHICH THE BOARD BELIEVES THAT OFFICER HAS
NOT SUBSTANTIALLY PERFORMED HIS DUTIES (EXCEPT FOR ANY SUCH FAILURE RESULTING
FROM OFFICER'S INCAPACITY DUE TO PHYSICAL OR MENTAL ILLNESS OR ANY SUCH ACTUAL
OR ANTICIPATED FAILURE AFTER HIS ISSUANCE OF A NOTICE OF TERMINATION FOR GOOD
REASON OR IN CONNECTION WITH A COVERED RESIGNATION), (C) WILLFUL COMMISSION OF
AN ACT OF FRAUD OR DISHONESTY RESULTING IN MATERIAL ECONOMIC OR FINANCIAL INJURY
TO CORPORATION, OR (D) WILLFUL ENGAGEMENT IN ILLEGAL CONDUCT OR GROSS
MISCONDUCT, IN EACH CASE WHICH IS MATERIALLY AND DEMONSTRABLY INJURIOUS TO
CORPORATION; PROVIDED, HOWEVER, THAT OFFICER'S EMPLOYMENT SHALL NOT BE DEEMED TO
HAVE BEEN TERMINATED IN A TERMINATION FOR CAUSE IF SUCH TERMINATION TOOK PLACE
AS A RESULT OF ANY ACT OR OMISSION BELIEVED BY OFFICER IN GOOD FAITH TO HAVE
BEEN IN THE BEST INTERESTS OF CORPORATION.
NOTWITHSTANDING THE FOREGOING,
OFFICER SHALL NOT BE DEEMED TO HAVE BEEN TERMINATED IN A TERMINATION FOR CAUSE
UNLESS AND UNTIL THERE SHALL HAVE BEEN DELIVERED TO OFFICER A COPY OF A
RESOLUTION DULY ADOPTED BY THE AFFIRMATIVE VOTE OF NOT LESS THAN THREE-QUARTERS
(3/4) OF THE ENTIRE MEMBERSHIP OF THE BOARD AT A MEETING OF THE BOARD (AFTER
REASONABLE NOTICE TO OFFICER AND AN OPPORTUNITY FOR OFFICER, TOGETHER WITH
OFFICER'S COUNSEL, TO BE HEARD BEFORE THE BOARD, AND AFTER THE REASONABLE
OPPORTUNITY TO CURE CONTEMPLATED BY CLAUSE (A) OR (B) ABOVE IN THE CASE OF A
TERMINATION PURSUANT TO EITHER SUCH CLAUSE), FINDING THAT IN THE BOARD'S GOOD
FAITH OPINION OFFICER HAD ENGAGED IN CONDUCT SET FORTH ABOVE IN THIS
SECTION 2(A)(I) AND SPECIFYING THE PARTICULARS THEREOF IN REASONABLE DETAIL.
(II)
"TERMINATION OTHER THAN FOR CAUSE" SHALL MEAN TERMINATION BY
CORPORATION OF OFFICER'S EMPLOYMENT HEREUNDER OTHER THAN (A) A TERMINATION FOR
CAUSE, (B) A TERMINATION DUE TO OFFICER'S DISABILITY, OR (C) IN CIRCUMSTANCES
WHERE A TERMINATION UPON A CHANGE IN CONTROL IS APPLICABLE.
(III)
"TERMINATION FOR GOOD REASON" SHALL MEAN TERMINATION BY OFFICER
OF HIS EMPLOYMENT HEREUNDER FOR GOOD REASON, OTHER THAN IN CIRCUMSTANCES WHERE A
TERMINATION UPON A CHANGE IN CONTROL IS APPLICABLE.
"GOOD REASON" SHALL MEAN,
WITHOUT OFFICER'S EXPRESS WRITTEN CONSENT (EXCEPT IN THE CASE OF
SECTION 2(A)(III)(G)), THE OCCURRENCE OF ANY OF THE FOLLOWING CIRCUMSTANCES
UNLESS, IN THE CASE OF SECTIONS 2(A)(III)(A), (B), (D), (E), (F), (G), (H) OR
(I), SUCH CIRCUMSTANCES ARE FULLY CORRECTED (PROVIDED SUCH CIRCUMSTANCES ARE
CAPABLE OF CORRECTION) WITHIN 30 DAYS AFTER A WRITTEN DEMAND FOR SUBSTANTIAL
PERFORMANCE IS DELIVERED TO CORPORATION BY OFFICER:
(A)
THE ASSIGNMENT TO OFFICER OF ANY DUTIES INCONSISTENT WITH OFFICER'S
DUTIES PURSUANT TO SECTION 1, THE FAILURE TO ELECT OR REELECT OFFICER AS CHIEF
2
EXECUTIVE OFFICER AND PRESIDENT OF CORPORATION