AUTHORITY OR RESPONSIBILITIES, OR ANY OTHER
ACTION OR OMISSION BY THE COMPANY WHICH RESULTS IN A MATERIAL DIMINUTION IN SUCH
POSITION, AUTHORITY OR RESPONSIBILITIES;
(B)
A MATERIAL BREACH OF THIS AGREEMENT BY THE COMPANY;
(C)
A MATERIAL REDUCTION IN THE EMPLOYEE'S BASE SALARY; OR
(D)
A CHANGE BY THE COMPANY IN THE LOCATION AT WHICH THE EMPLOYEE
PERFORMS HIS/HER PRINCIPAL DUTIES FOR THE COMPANY TO A NEW LOCATION THAT IS BOTH
(I) OUTSIDE A RADIUS OF 50 MILES FROM THE EMPLOYEE'S PRINCIPAL RESIDENCE AND
(II) MORE THAN 30 MILES FROM THE LOCATION AT WHICH THE EMPLOYEE PERFORMED
HIS/HER PRINCIPAL DUTIES FOR THE COMPANY.
4.3
DEFINITION OF "CAUSE". FOR PURPOSES OF THIS AGREEMENT, "CAUSE" IS
DEFINED AS: (I) A GOOD FAITH FINDING BY NO FEWER THAN TWO-THIRDS OF THE MEMBERS
OF THE BOARD (EXCLUDING THE EMPLOYEE, IF APPLICABLE) OF (A) THE EMPLOYEE'S
FAILURE TO (1) PERFORM REASONABLY ASSIGNED LAWFUL DUTIES OR (2) COMPLY WITH A
LAWFUL INSTRUCTION OF THE BOARD, CHIEF EXECUTIVE OFFICER OR SUCH OTHER EXECUTIVE
OFFICER WITH DIRECT SUPERVISORY AUTHORITY OVER THE EMPLOYEE SO LONG AS, IN THE
CASE OF (2), THE INSTRUCTION IS CONSISTENT WITH THE SCOPE AND RESPONSIBILITIES
OF THE EMPLOYEE'S POSITION, OR (B) THE EMPLOYEE'S DISHONESTY, WILLFUL MISCONDUCT
OR GROSS NEGLIGENCE, OR (C) THE EMPLOYEE'S SUBSTANTIAL AND MATERIAL FAILURE OR
REFUSAL TO PERFORM ACCORDING TO, OR TO COMPLY WITH, THE POLICIES, PROCEDURES OR
PRACTICES ESTABLISHED BY THE COMPANY OR THE BOARD AND, IN THE CASE OF (A) OR
(C), THE EMPLOYEE HAS HAD TEN (10) DAYS WRITTEN NOTICE TO CURE HIS/HER FAILURE
TO SO PERFORM OR COMPLY; OR (II) THE EMPLOYEE'S INDICTMENT, OR THE ENTERING OF A
GUILTY PLEA OR PLEA OF "NO CONTEST" WITH RESPECT TO, A FELONY OR ANY CRIME
INVOLVING MORAL TURPITUDE.
2
5.
TERMINATION WITHOUT CAUSE, TERMINATION BY REASON OF DEATH OR
DISABILITY, RESIGNATION FOR GOOD REASON.
5.1
IF THE EMPLOYEE'S EMPLOYMENT WITH THE COMPANY IS TERMINATED BY
REASON OF THE EMPLOYEE'S DEATH OR DISABILITY (AS DEFINED IN SECTION 5.2), BY THE
COMPANY WITHOUT CAUSE (AS DEFINED IN SECTION 4.3), OR BY THE EMPLOYEE'S
VOLUNTARY RESIGNATION FOR GOOD REASON (AS DEFINED IN SECTION 4.2), OTHER THAN IN
CONNECTION WITH A CHANGE IN CONTROL (AS DEFINED IN SECTION 6.1(A)), THEN THE
EMPLOYEE SHALL BE PAID ALL ACCRUED AND UNPAID BASE SALARY AND ANY ACCRUED BUT
UNUSED VACATION THROUGH THE DATE OF TERMINATION. IN ADDITION, IF THE EMPLOYEE'S
EMPLOYMENT WITH THE COMPANY IS TERMINATED BY REASON OF THE EMPLOYEE'S
DISABILITY, BY THE COMPANY WITHOUT CAUSE, OR BY THE EMPLOYEE'S VOLUNTARY
RESIGNATION FOR GOOD REASON, SUBJECT TO THE EMPLOYEE'S EXECUTION AND
NON-REVOCATION OF A BINDING SEVERANCE AND MUTUAL RELEASE AGREEMENT IN A FORM
PROVIDED BY AND SATISFACTORY TO THE COMPANY (HEREINAFTER, A "SEVERANCE
AGREEMENT"), THE EMPLOYEE SHALL BE ELIGIBLE TO RECEIVE THE FOLLOWING SEPARATION
BENEFITS:
(A)
AN AMOUNT EQUAL TO THE SUM OF (I) TWELVE (12) MONTHS OF THE
EMPLOYEE'S BASE SALARY AS OF THE DATE OF TERMINATION (WHICH AMOUNT SHALL BE
PAYABLE IN INSTALLMENTS IN ACCORDANCE WITH THE COMPANY'S REGULAR PAYROLL
PRACTICES, BEGINNING