INCAPABLE OF PERFORMING HIS
PRINCIPAL DUTIES BECAUSE OF PHYSICAL OR MENTAL INCAPACITY FOR A PERIOD OF 180
CONSECUTIVE DAYS IN ANY 12-MONTH PERIOD; PROVIDED SUCH TERMINATION DATE
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FOR DISABILITY SHALL BE SET FORTH IN THE NOTICE OF TERMINATION DELIVERED TO THE
EXECUTIVE BY THE COMPANY;
(C)
RETIREMENT:
THE RETIREMENT OF THE EXECUTIVE,
WHERE "RETIREMENT" SHALL HAVE THAT MEANING AS CURRENTLY IN EFFECT UNDER THE
COMPANY'S DEFINED CONTRIBUTION RETIREMENT PLAN ON THE DAY IMMEDIATELY PRECEDING
SUCH RETIREMENT; AND
(D)
FOR CAUSE:
NOTICE OF TERMINATION FROM THE
COMPANY FOR CAUSE, WHERE "CAUSE" SHALL MEANS:
(I)
THE WILLFUL FAILURE OF THE EXECUTIVE TO
PERFORM HIS MATERIAL DUTIES WITH THE COMPANY AS PROVIDED IN THIS AGREEMENT, AND
WHICH FAILURE IS NOT CURED (IF CAPABLE OF CURE) WITHIN 15 DAYS AFTER RECEIPT BY
THE EXECUTIVE OF WRITTEN NOTICE FROM THE COMPANY OF SUCH FAILURE, WHICH NOTICE
IDENTIFIES THE MANNER IN WHICH THE EXECUTIVE HAS WILLFULLY FAILED TO PERFORM;
(II)
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN
THE PERFORMANCE OF THE EXECUTIVE'S DUTIES;
(III)
THE ENGAGING BY THE EXECUTIVE IN WILLFUL
CONDUCT WHICH IS DEMONSTRABLY INJURIOUS TO THE COMPANY, MONETARILY OR OTHERWISE,
SUCH AS ACTUAL OR ATTEMPTED THEFT OR EMBEZZLEMENT OF COMPANY ASSETS;
(IV)
THE CONVICTION (TREATING A NOLO CONTENDERE PLEA
AS A CONVICTION) OF THE EXECUTIVE OF ANY CRIME OR OFFENSE CONSTITUTING A FELONY
(WHETHER OR NOT ANY RIGHT TO APPEAL HAS BEEN OR MAY BE EXERCISED);
(V)
USE OF ILLEGAL DRUGS;
(VI)
COMMISSION OR AN ACT OF MORAL TURPITUDE THAT IN
THE JUDGMENT OF THE BOARD OF DIRECTORS OF THE COMPANY CAN REASONABLY BE EXPECTED
TO HAVE AN ADVERSE EFFECT ON THE BUSINESS, REPUTATION OR FINANCIAL SITUATION OF
THE COMPANY AND/OR THE ABILITY OF THE EXECUTIVE TO PERFORM THE EXECUTIVE'S
DUTIES;
(VII)
A FAILURE BY THE EXECUTIVE TO COMPLY WITH ANY
MATERIAL PROVISION OF THIS AGREEMENT, WHICH FAILURE IS NOT CURED (IF CAPABLE OF
CURE) WITHIN 15 DAYS AFTER RECEIPT BY EXECUTIVE OF WRITTEN NOTICE FROM THE
COMPANY OF SUCH NONCOMPLIANCE BY THE EXECUTIVE; OR
(VIII)
BREACH OF FIDUCIARY DUTY TO THE COMPANY.
TERMINATION OF THE EXECUTIVE FOR CAUSE SHALL MEAN TERMINATION BY ACTION OF THE
COMPANY'S BOARD OF DIRECTORS, AT A MEETING DULY CALLED AND HELD UPON AT LEAST 15
DAYS' WRITTEN NOTICE TO THE EXECUTIVE SPECIFYING THE PARTICULARS OF THE ACTION
OR INACTION ALLEGED TO CONSTITUTE CAUSE AND AT WHICH MEETING THE
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EXECUTIVE AND HIS COUNSEL WERE ENTITLED TO BE PRESENT AND GIVEN ADEQUATE
OPPORTUNITY TO BE HEARD.
FOR PURPOSES OF CLAUSES (I), (II) AND (III) OF THE
ABOVE DEFINITION, ACTION OR INACTION BY THE EXECUTIVE SHALL NOT BE CONSIDERED
"WILLFUL" UNLESS DONE OR OMITTED BY HIM (1) INTENTIONALLY OR NOT IN GOOD FAITH
AND (2) WITHOUT REASONABLE BELIEF THAT HIS ACTION OR INACTION WAS IN THE BEST
INTEREST OF THE COMPANY, AND SHALL NOT INCLUDE FAILURE TO ACT BY REASON OF TOTAL
OR PARTIAL INCAPACITY DUE TO PHYSICAL OR MENTAL ILLNESS.
(II)
TERMINATIONS REQUIRING NOTICE BY EITHER
PARTY.
THE EXECUTIVE'S EMPLOYMENT MAY BE TERMINATED EITHER BY THE COMPANY