BREACH BY EXECUTIVE OF ANY OF THE MATERIAL PROVISIONS OF THIS
AGREEMENT THAT EXECUTIVE FAILS TO REMEDY OR CEASE WITHIN TEN (10) BUSINESS DAYS
AFTER NOTICE THEREOF TO EXECUTIVE; OR
(II)
ANY CONDUCT, ACTION OR BEHAVIOR BY EXECUTIVE THAT HAS OR MAY
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON THE REPUTATION OR
INTERESTS OF THE COMPANY OR EXECUTIVE; OR
(III)
THE COMMISSION BY EXECUTIVE OF AN ACT INVOLVING MORAL TURPITUDE,
DISHONESTY OR FRAUD, OR THE ENGAGEMENT IN ANY OTHER WILLFUL OR INTENTIONAL
MISCONDUCT, WHETHER OR NOT IN CONNECTION WITH EXECUTIVE'S EMPLOYMENT HEREUNDER;
OR
(IV)
EXECUTIVE SHALL HAVE COMMITTED AN ACT CONSTITUTING A FELONY UNDER
THE LAWS OF THE UNITED STATES OR ANY STATE OR POLITICAL SUBDIVISION THEREOF.
5.03.
DISABILITY.
IF DURING THE EMPLOYMENT PERIOD, EXECUTIVE BECOMES
INCAPABLE OF FULFILLING HIS OBLIGATIONS HEREUNDER BECAUSE OF INJURY OR PHYSICAL
OR MENTAL ILLNESS, AND SUCH INCAPACITY EXISTS FOR A PERIOD OF AT LEAST 120
CONSECUTIVE DAYS OR FOR SHORTER PERIODS AGGREGATING AT LEAST 180 DAYS DURING ANY
PERIOD OF TWELVE CONSECUTIVE MONTHS ("DISABILITY"), EMPLOYER MAY, UPON AT LEAST
FIFTEEN DAYS' PRIOR WRITTEN NOTICE TO EXECUTIVE, BUT IN NO EVENT SHALL THE
TERMINATION DATE BE PRIOR TO JANUARY 3, 2005, TERMINATE EXECUTIVE'S EMPLOYMENT
UNDER THIS AGREEMENT.
THE DISABILITY OF EXECUTIVE SHALL BE DETERMINED BY AN
INDEPENDENT PHYSICIAN ACCEPTABLE TO BOTH EMPLOYER AND EXECUTIVE OR HIS
REPRESENTATIVE.
SECTION 6
TERMINATION COMPENSATION
6.01.
ENTITLEMENT TO PAYMENT UPON TERMINATION WITHOUT CAUSE.
SUBJECT TO
THE PROVISIONS OF SECTIONS 6.02 AND 9.08, IF EXECUTIVE'S EMPLOYMENT HEREUNDER IS
TERMINATED BY EMPLOYER PURSUANT TO SECTION 5.01, EXECUTIVE TERMINATES HIS
EMPLOYMENT WITH EMPLOYER PURSUANT TO SECTION 5.01 FOR "GOOD REASON," OR
EXECUTIVE'S EMPLOYMENT IS TERMINATED FOR ANY REASON FOLLOWING A CHANGE OF
CONTROL AS DEFINED IN SECTION 8, EXECUTIVE SHALL BE ENTITLED TO CONTINUATION OF
HIS BASE SALARY FOR A PERIOD OF ONE (1) YEAR FOLLOWING SUCH TERMINATION, SUBJECT
TO EXECUTION OF A
4
SEPARATION AGREEMENT AND GENERAL RELEASE (THE TERMS OF WHICH SHALL BE CONSISTENT
WITH THIS AGREEMENT) IN A FORM REASONABLY SATISFACTORY TO EMPLOYER.
THE AMOUNT
TO BE PAID PURSUANT TO THIS SECTION 6.01 IS REFERRED TO AS THE "TERMINATION
COMPENSATION" AND THE PERIOD FOR WHICH SUCH COMPENSATION IS TO BE PAID IS
REFERRED TO AS THE "RELEVANT PERIOD".
FOR PURPOSES OF THIS SECTION 6.01, "GOOD
REASON" SHALL MEAN: (1) A RELOCATION OF EMPLOYER'S HEADQUARTERS OUTSIDE THE NEW
YORK CITY METROPOLITAN AREA; (2) A DEMOTION OF EXECUTIVE'S POSITION, A MATERIAL,
ADVERSE CHANGE IN EXECUTIVE'S DUTIES AND RESPONSIBILITIES, OR AN ADVERSE CHANGE
IN EXECUTIVE'S REPORTING AS SET FORTH IN PARAGRAPH 3.02; (3) EMPLOYER'S FAILURE
TO PAY ANY AMOUNT OR BENEFITS WHEN DUE, WHICH FAILURE IS NOT CURED WITHIN TEN
(10) BUSINESS DAYS AFTER NOTICE TO EMPLOYER; (4) EMPLOYER'S MATERIAL BREACH OF
THIS AGREEMENT WHICH BREACH IS NOT CURED WITHIN TEN (10) BUSINESS DAYS AFTER
NOTICE TO EMPLOYER; OR (5) EZRA DABAH NO LONGER HOLDS THE POSITION OF CHIEF
EXECUTIVE OFFICER OF EMPLOYER.
SUCH TERMINATION COMPENSATION SHALL BE PAID TO
EXECUTIVE IN EQUAL CONSECUTIVE MONTHLY INSTALLMENTS DURING THE