EXECUTIVE'S DUTY OF LOYALTY OR FIDUCIARY DUTY TO THE COMPANY OR ANY MATERIAL ACT
OF DISHONESTY OR FRAUD WITH RESPECT TO THE COMPANY WHICH ARE NOT CURED OR
SUBSTANTIALLY CURED TO THE SATISFACTION OF THE BOARD OF DIRECTORS OF THE COMPANY
IN A
4
REASONABLE TIME, WHICH TIME SHALL BE AT LEAST 30 DAYS FROM RECEIPT OF WRITTEN
NOTICE FROM THE COMPANY OF SUCH MATERIAL BREACH; OR (VI) EXECUTIVE HAVING
COMMITTED ACTS OR OMISSIONS CONSTITUTING A MATERIAL BREACH OF THIS AGREEMENT
WHICH ARE NOT CURED OR SUBSTANTIALLY CURED TO THE SATISFACTION OF THE BOARD OF
DIRECTORS OF THE COMPANY IN A REASONABLE TIME, WHICH TIME SHALL BE AT LEAST 30
DAYS FROM RECEIPT OF WRITTEN NOTICE FROM THE COMPANY SETTING FORTH WITH
SPECIFICITY THE PARTICULARS OF ANY SUCH MATERIAL BREACH AS WELL AS THE
CORRECTIVE ACTIONS REQUIRED. A DETERMINATION THAT CAUSE EXISTS AS DEFINED IN
CLAUSES (IV), (V), OR (VI) (AS TO THIS AGREEMENT) OF THE PRECEDING SENTENCE
SHALL BE MADE BY AT LEAST A MAJORITY OF THE MEMBERS OF THE BOARD OF DIRECTORS.
FOR PURPOSES OF THIS AGREEMENT, "DISABILITY" SHALL MEAN THE INABILITY OF
EXECUTIVE, IN THE REASONABLE JUDGMENT OF A PHYSICIAN JOINTLY APPOINTED BY THE
EXECUTIVE AND BOARD OF DIRECTORS, TO PERFORM, EVEN WITH REASONABLE
ACCOMMODATION, HER DUTIES OF EMPLOYMENT FOR THE COMPANY OR ANY OF ITS
SUBSIDIARIES BECAUSE OF ANY PHYSICAL OR MENTAL DISABILITY OR INCAPACITY, WHERE
SUCH DISABILITY SHALL EXIST FOR AN AGGREGATE PERIOD OF MORE THAN 120 DAYS IN ANY
365-DAY PERIOD OR FOR ANY PERIOD OF 90 CONSECUTIVE DAYS. THE COMPANY SHALL BY
WRITTEN NOTICE TO THE EXECUTIVE SPECIFY THE EVENT RELIED UPON FOR TERMINATION
PURSUANT TO THIS SECTION 4(A), AND EXECUTIVE'S EMPLOYMENT HEREUNDER SHALL BE
DEEMED TERMINATED AS OF THE DATE OF SUCH NOTICE. IN THE EVENT OF ANY TERMINATION
UNDER THIS SUBSECTION 4(A), THE COMPANY SHALL PAY ALL AMOUNTS THEN DUE TO THE
EXECUTIVE UNDER SECTION 2(A) OF THIS AGREEMENT FOR ANY PORTION OF THE PAYROLL
PERIOD WORKED BUT FOR WHICH PAYMENT HAD NOT YET BEEN MADE UP TO THE DATE OF
TERMINATION, AND, IF SUCH TERMINATION WAS FOR CAUSE, THE COMPANY SHALL HAVE NO
FURTHER OBLIGATIONS TO EXECUTIVE UNDER THIS AGREEMENT, AND ANY AND ALL OPTIONS
GRANTED HEREUNDER SHALL TERMINATE ACCORDING TO THEIR TERMS. IN THE EVENT OF A
TERMINATION DUE TO EXECUTIVE'S DISABILITY OR DEATH, THE COMPANY SHALL COMPLY
WITH ITS OBLIGATIONS UNDER SECTIONS 2(E) AND 2(F).
(B)
BY THE COMPANY, IN THE ABSENCE OF CAUSE, FOR ANY REASON AND IN ITS
SOLE AND ABSOLUTE DISCRETION, PROVIDED THAT IN SUCH EVENT THE COMPANY SHALL, AS
LIQUIDATED DAMAGES OR SEVERANCE PAY, OR BOTH, CONTINUE TO PAY TO EXECUTIVE THE
BASE SALARY (AT A MONTHLY RATE EQUAL TO THE RATE IN EFFECT IMMEDIATELY PRIOR TO
SUCH TERMINATION) FOR THE REMAINING TERM (THE "TERMINATION PAYMENTS"), WHEN, AS
AND IF SUCH PAYMENTS WOULD HAVE BEEN MADE IN THE ABSENCE OF EXECUTIVE'S
TERMINATION. THE TERMINATION PAYMENTS SHALL BE MADE REGARDLESS OF EXECUTIVE'S
SUBSEQUENT RE-EMPLOYMENT AS LONG AS ANY NEW EMPLOYMENT IS NOT IN VIOLATION