LOCATION MORE THAN FORTY-FIVE (45) MILES FROM THE PRESENT
CORPORATION OFFICES LOCATED IN PARSIPPANY, NEW JERSEY, OR (II) THE CORPORATION
MATERIALLY BREACHES ANY OF THE TERMS OF THIS AGREEMENT, THEN LERNER MAY, AT HIS
OPTION AND UPON WRITTEN NOTICE TO THE BOARD OF DIRECTORS AND THE CHIEF EXECUTIVE
OFFICER WITHIN THIRTY (30) DAYS AFTER THE BOARD'S OR CHIEF EXECUTIVE OFFICER'S
ACTION OR SUCH MATERIAL BREACH, CONSIDER HIMSELF TERMINATED WITHOUT CAUSE AND,
SUBJECT TO PARAGRAPH 9 OF THIS AGREEMENT, SHALL BE ENTITLED TO THE BENEFITS SET
FORTH IN SUBPARAGRAPH 7(A), UNLESS WITHIN FIFTEEN (15) DAYS AFTER DELIVERY OF
SUCH NOTICE, LERNER'S DUTIES HAVE BEEN RESTORED, THE OFFICE WHERE HIS PRINCIPAL
DUTIES ARE TO BE PERFORMED IS RESTORED TO WITHIN FORTY-FIVE (45) MILES FROM THE
PRESENT CORPORATION OFFICES IN PARSIPPANY, NEW JERSEY, OR SUCH MATERIAL BREACH
HAS BEEN CURED, AS APPLICABLE.
5
(E)
DISABILITY.
(I)
THE CORPORATION, IN ITS SOLE DISCRETION,
MAY TERMINATE LERNER'S EMPLOYMENT UPON HIS TOTAL DISABILITY. IN THE EVENT HE IS
TERMINATED PURSUANT TO THIS SUBPARAGRAPH, HE SHALL BE ENTITLED TO THE BENEFITS
SET FORTH IN SUBPARAGRAPH 7(A), PROVIDED HOWEVER, THAT THE ANNUAL BASE SALARY
COMPONENT OF SALARY CONTINUATION SHALL BE REDUCED BY ANY AMOUNTS PAID TO LERNER
UNDER ANY DISABILITY BENEFITS PLAN OR INSURANCE POLICY. FOR PURPOSES OF THIS
AGREEMENT, THE TERM "TOTAL DISABILITY" SHALL MEAN DEATH OR ANY PHYSICAL OR
MENTAL CONDITION WHICH PREVENTS LERNER FROM PERFORMING HIS DUTIES UNDER THIS
CONTRACT FOR AT LEAST FOUR (4) CONSECUTIVE MONTHS. THE DETERMINATION OF WHETHER
OR NOT A PHYSICAL OR MENTAL CONDITION WOULD PREVENT LERNER FROM THE PERFORMANCE
OF HIS DUTIES SHALL BE MADE BY THE BOARD OF DIRECTORS IN ITS DISCRETION. IF
REQUESTED BY THE BOARD OF DIRECTORS, LERNER SHALL SUBMIT TO A MENTAL OR PHYSICAL
EXAMINATION BY AN INDEPENDENT PHYSICIAN SELECTED BY THE CORPORATION AND
REASONABLY ACCEPTABLE TO HIM TO ASSIST THE BOARD OF DIRECTORS IN ITS
DETERMINATION, AND HIS ACCEPTANCE OF SUCH PHYSICIAN SHALL NOT BE UNREASONABLY
WITHHELD OR DELAYED.
FAILURE TO COMPLY WITH THIS REQUEST SHALL PREVENT HIM FROM
CHALLENGING THE BOARD'S DETERMINATION.
(F)
RETIREMENT. THE CORPORATION, IN ITS SOLE
DISCRETION, MAY ESTABLISH A RETIREMENT POLICY FOR ITS EXECUTIVE EMPLOYEES,
INCLUDING LERNER, WHICH INCLUDES THE AGE FOR MANDATORY RETIREMENT FROM
EMPLOYMENT WITH THE CORPORATION. UPON THE TERMINATION OF EMPLOYMENT PURSUANT TO
SUCH RETIREMENT POLICY, ALL RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT SHALL
CEASE, EXCEPT THAT LERNER SHALL BE ENTITLED TO ANY AND ALL ACCRUED AND VESTED
BENEFITS UNDER THE CORPORATION'S EXISTING EMPLOYMENT AND BENEFITS POLICIES,
INCLUDING BUT NOT LIMITED TO UNPAID INCENTIVE COMPENSATION AWARDS EARNED UNDER
THE INCENTIVE COMPENSATION PLAN FOR ANY COMPLETED PERFORMANCE PERIODS.
(G)
OTHER PAYMENTS.
IF LERNER IS LIABLE FOR THE
PAYMENT OF ANY EXCISE TAX (THE "EXCISE TAX") PURSUANT TO SECTION 4999 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY SUCCESSOR OR LIKE
PROVISION, WITH RESPECT TO ANY PAYMENT OR PROPERTY TRANSFERS RECEIVED OR TO BE
RECEIVED UNDER THIS AGREEMENT OR OTHERWISE, THE CORPORATION SHALL PAY LERNER AN
AMOUNT (THE "SPECIAL REIMBURSEMENT") WHICH, AFTER PAYMENT