COMPANY;
(II)
THE FAILURE BY EXECUTIVE TO SUBSTANTIALLY
PERFORM, OR THE GROSS NEGLIGENCE IN THE PERFORMANCE OF, HIS DUTIES HEREUNDER FOR
A PERIOD OF FIFTEEN DAYS AFTER THE CHIEF EXECUTIVE OFFICER OF THE COMPANY HAS
MADE A WRITTEN DEMAND FOR PERFORMANCE WHICH SPECIFICALLY IDENTITIES THE MANNER
IN WHICH HE BELIEVES THAT EXECUTIVE HAS NOT SUBSTANTIALLY PERFORMED HIS DUTIES;
(III)
THE COMMISSION BY EXECUTIVE OF A WILLFUL ACT OR
FAILURE TO ACT OF MISCONDUCT WHICH IS INJURIOUS TO THE COMPANY, INCLUDING, BUT
NOT LIMITED TO, MATERIAL VIOLATIONS OF ANY COMPANY POLICY (SUCH AS THE COMPANY'S
CODE OF ETHICS);
(IV)
A CONVICTION OR A PLEA OF GUILTY OR NOLO
CONTENDERE IN CONNECTION WITH FRAUD OR ANY CRIME THAT CONSTITUTES A FELONY IN
THE JURISDICTION INVOLVED; OR
(V)
AN ACT OF FAILURE TO ACT CONSTITUTING
FRAUD OR DISHONESTY THAT COMPROMISES EXECUTIVE'S ABILITY TO ACT EFFECTIVELY AS A
HIGH-LEVEL EXECUTIVE OF THE COMPANY.
(B)
THE COMPANY MAY TERMINATE EXECUTIVE'S
EMPLOYMENT FOR ANY REASON OTHER THAN CAUSE AT ANY TIME UPON THE PAYMENT TO
EXECUTIVE OF (I) AN AMOUNT EQUAL TO ONE YEAR'S SALARY, WHICH AMOUNT SHALL BE
PAYABLE IN TWELVE MONTHLY PAYMENTS (THE "TERMINATION PAYMENTS"), PLUS (II) A
BONUS FOR SUCH PERIOD, BASED ON THE AVERAGE BONUS (IF ANY) PAID TO EXECUTIVE FOR
THE TWO YEARS PRECEDING THE TERMINATION; PROVIDED, THAT EXECUTIVE SHALL EXECUTE
A RELEASE, PREPARED BY THE COMPANY, RELEASING THE COMPANY FROM ALL CLAIMS AS A
CONDITION OF RECEIVING THE SALARY AND BONUS (IF ANY) PURSUANT TO THIS
AGREEMENT.
SUCH AMOUNTS RECEIVED UNDER THIS PROVISION SHALL BE REDUCED TO THE
EXTENT THAT EXECUTIVE ACCEPTS OTHER EMPLOYMENT PRIOR TO THE RECEIPT OF THE FINAL
TERMINATION PAYMENT.
ANY TERMINATION UNDER THIS SUBPARAGRAPH SHALL SERVE TO
RELIEVE EXECUTIVE OF ALL HIS DUTIES AND AUTHORITY ON BEHALF OF THE COMPANY AS OF
THE DATE SUCH NOTICE STATES THE TERMINATION IS TO TAKE EFFECT.
ALL OBLIGATIONS
OF THE COMPANY TO EXECUTIVE UNDER THIS AGREEMENT SHALL TERMINATE AS OF THE
EFFECTIVE DATE OF ANY SUCH TERMINATION, EXCEPT FOR OBLIGATIONS ACCRUED PRIOR TO
SUCH EFFECTIVE DATE.
3
(C)
UPON THE TERMINATION OF EXECUTIVE'S
EMPLOYMENT HEREUNDER, NEITHER EXECUTIVE NOR EXECUTIVE'S BENEFICIARY OR ESTATE
SHALL HAVE ANY FURTHER RIGHTS OR CLAIMS AGAINST THE COMPANY UNDER THIS AGREEMENT
EXCEPT THE RIGHT TO RECEIVE:
(I)
THE UNPAID PORTION OF THE EARNED SALARY
COMPUTED ON A PRO RATA BASIS TO THE DATE OF TERMINATION;
(II)
ANY UNPAID BONUS OWING UNDER SECTION 4(B) OR
5(B); AND
(III)
REIMBURSEMENT FOR ANY EXPENSES FOR WHICH
EXECUTIVE SHALL NOT HAVE THERETOFORE BEEN REIMBURSED AS PROVIDED IN
SECTION 4(E).
(D)
NOTWITHSTANDING ANY OTHER PROVISION OF THIS
SECTION 5, EXECUTIVE SHALL HAVE THE RIGHT TO TERMINATE HIS EMPLOYMENT AT ANY
TIME UPON SIXTY DAYS' WRITTEN NOTICE TO THE COMPANY (OR UPON SUCH SHORTER NOTICE
AS THE COMPANY MAY AGREE IN WRITING IN CONNECTION WITH SUCH TERMINATION). ANY
SUCH TERMINATION BY EXECUTIVE SHALL BE DEEMED EFFECTIVE UPON RECEIPT BY THE
COMPANY OF SUCH NOTICE.
ANY TERMINATION UNDER THIS SUBPARAGRAPH SHALL BE
EFFECTIVE AS OF THE DATE STATED IN THE NOTICE