TERMINATION OF EMPLOYMENT.
(A)
TERMINATION DUE TO DEATH OR DISABILITY.
EXECUTIVE'S EMPLOYMENT
SHALL AUTOMATICALLY TERMINATE UPON HIS DEATH OR THE ASBURY CEO'S OR BOARD'S
DETERMINATION OF HIS DISABILITY.
THE TERM "DISABILITY" SHALL MEAN A PHYSICAL OR
MENTAL DISABILITY OR INFIRMITY THAT PREVENTS THE PERFORMANCE BY EXECUTIVE OF HIS
DUTIES HEREUNDER LASTING (OR LIKELY TO LAST, BASED ON COMPETENT MEDICAL EVIDENCE
PRESENTED TO THE BOARD) FOR A CONTINUOUS PERIOD OF SIX MONTHS OR LONGER.
THE
REASONED AND GOOD FAITH JUDGMENT OF THE ASBURY CEO OR BOARD AS TO DISABILITY
SHALL BE FINAL AND SHALL BE BASED ON SUCH COMPETENT MEDICAL EVIDENCE AS SHALL BE
PRESENTED TO IT BY EXECUTIVE OR BY ANY PHYSICIAN OR GROUP OF PHYSICIANS OR OTHER
COMPETENT MEDICAL EXPERTS EMPLOYED BY EXECUTIVE OR THE COMPANY TO ADVISE THE
ASBURY CEO OR BOARD.
(B)
TERMINATION BY THE BOARD FOR CAUSE.
EXECUTIVE'S EMPLOYMENT WITH
THE COMPANY MAY BE TERMINATED FOR "CAUSE" BY THE ASBURY CEO OR BOARD.
"CAUSE"
SHALL MEAN (I) THE NEGLIGENT OR WILLFUL FAILURE BY EXECUTIVE TO SUBSTANTIALLY
PERFORM HIS DUTIES OR TO COMPLY WITH ANY WRITTEN DIRECTIVES (MADE IN GOOD FAITH
AND CONSISTENT WITH APPLICABLE LAW) OF THE ASBURY CEO OR BOARD AND CONTINUANCE
OF SUCH FAILURE FOR MORE THAN 20 DAYS AFTER THE COMPANY NOTIFIES EXECUTIVE IN
WRITING THEREOF, (II) EXECUTIVE'S ENGAGING IN SERIOUS MISCONDUCT (INCLUDING,
WITHOUT LIMITATION, ANY CRIMINAL, FRAUDULENT OR DISHONEST CONDUCT) THAT IS
INJURIOUS TO THE COMPANY OR ANY OF ITS AFFILIATES OR SUBSIDIARIES, (III)
EXECUTIVE'S CONVICTION OF, OR ENTERING A PLEA OF NOLO CONTENDERE TO, ANY CRIME
THAT CONSTITUTES A FELONY OR INVOLVES MORAL TURPITUDE, OR (IV) THE BREACH BY
EXECUTIVE OF ANY WRITTEN COVENANT OR AGREEMENT WITH THE COMPANY OR ANY OF ITS
AFFILIATES NOT TO DISCLOSE ANY INFORMATION PERTAINING TO THE COMPANY OR ANY OF
ITS AFFILIATES OR NOT TO COMPETE OR INTERFERE WITH THE COMPANY OR ANY OF ITS
AFFILIATES, INCLUDING WITHOUT LIMITATION THE COVENANTS SET FORTH IN SECTIONS 7,
8 AND 10.
(C)
TERMINATION WITHOUT CAUSE.
EXECUTIVE'S EMPLOYMENT WITH THE
COMPANY MAY BE TERMINATED "WITHOUT CAUSE" BY THE ASBURY CEO OR BOARD.
A
TERMINATION "WITHOUT CAUSE" SHALL MEAN A TERMINATION OF EMPLOYMENT BY THE ASBURY
CEO OR BOARD OTHER THAN DUE TO DEATH OR DISABILITY AS DESCRIBED IN SECTION 6(A)
OR CAUSE AS DEFINED IN SECTION 6(B).
(D)
TERMINATION BY EXECUTIVE.
EXECUTIVE MAY TERMINATE HIS EMPLOYMENT
FOR "GOOD REASON".
"GOOD REASON" SHALL MEAN A TERMINATION OF EMPLOYMENT BY
EXECUTIVE WITHIN 30 DAYS FOLLOWING (I) ANY MATERIAL DIMINUTION BY THE BOARD IN
EXECUTIVE'S DUTIES OR JOB TITLE, EXCEPT IN CONNECTION WITH TERMINATION OF
EXECUTIVE'S EMPLOYMENT FOR CAUSE
3
AS PROVIDED IN SECTION 6(B) OR DEATH OR DISABILITY AS PROVIDED IN SECTION 6(A),
(II) THE REDUCTION BY THE COMPANY OF ITS CAPITALIZATION TO THE EXTENT THAT
EXECUTIVE IS NO LONGER ABLE TO PROPERLY PERFORM HIS DUTIES HEREUNDER (WHICH, AT
A MINIMUM, SHALL MEAN CAPITALIZATION NECESSARY TO MAINTAIN ALL MINIMUM WORKING
CAPITAL REQUIREMENTS IMPOSED BY MANUFACTURERS SUPPLYING PRODUCTS FOR THE
BUSINESS), AND (III) THE FAILURE OF THE COMPANY TIMELY TO