DIRECTORS OF THE
CORPORATION OR THE CHIEF EXECUTIVE OFFICER, IN EITHER OF THEIR SOLE DISCRETION,
TAKES ACTION WHICH SUBSTANTIALLY CHANGES OR ALTERS HERBES' AUTHORITY OR DUTIES
SO AS TO EFFECTIVELY PREVENT HIM FROM PERFORMING THE DUTIES OF THE EXECUTIVE
VICE PRESIDENT OF OPERATIONS AS DEFINED IN THIS AGREEMENT, OR REQUIRES THAT HIS
OFFICE BE LOCATED AT AND/OR PRINCIPAL DUTIES BE PERFORMED AT A LOCATION MORE
THAN FORTY-FIVE (45) MILES FROM THE PRESENT CORPORATION OFFICE LOCATED IN
PARSIPPANY, NEW JERSEY, THEN HERBES MAY, AT HIS OPTION AND UPON WRITTEN NOTICE
TO THE BOARD OF DIRECTORS WITHIN THIRTY (30) DAYS AFTER THE
5
BOARD'S OR CHIEF EXECUTIVE OFFICER'S ACTION, CONSIDER HIMSELF TERMINATED WITHOUT
CAUSE AND ENTITLED TO THE BENEFITS SET FORTH IN PARAGRAPH 7(A), UNLESS WITHIN
THIRTY (30) DAYS AFTER DELIVERY OF SUCH NOTICE, HERBES' DUTIES HAVE BEEN
RESTORED.
(E)
DISABILITY.
(I)
THE CORPORATION, IN ITS SOLE DISCRETION, MAY TERMINATE HERBES'
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 PARAGRAPH
7(A), PROVIDED HOWEVER, THAT THE ANNUAL BASE SALARY COMPONENT OF SALARY
CONTINUATION SHALL BE REDUCED BY ANY AMOUNTS PAID TO HERBES 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 HERBES 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 HERBES FROM THE PERFORMANCE OF HIS DUTIES SHALL BE MADE
BY THE BOARD OF DIRECTORS IN ITS DISCRETION. IF REQUESTED BY THE BOARD OF
DIRECTORS, HERBES 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 HERBES,
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
HERBES 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 ANNUAL BONUS
PLAN OR ANY OTHER INCENTIVE COMPENSATION PLAN FOR ANY COMPLETED PERFORMANCE
PERIODS.
(G)
OTHER PAYMENTS.
IF HERBES 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 HERBES AN AMOUNT (THE "SPECIAL
REIMBURSEMENT")