HEREUNDER FOR GOOD REASON, UPON NOTICE TO
THE COMPANY SETTING FORTH IN REASONABLE DETAIL THE NATURE OF SUCH GOOD REASON.
THE FOLLOWING SHALL CONSTITUTE GOOD REASON FOR TERMINATION BY THE EXECUTIVE:
(I)
REMOVAL OF THE EXECUTIVE, WITHOUT HIS
CONSENT, FROM THE POSITION OF CEO OF THE COMPANY (OR A SUCCESSOR CORPORATION);
(II)
MATERIAL DIMINUTION IN THE NATURE OR SCOPE
OF THE EXECUTIVE'S RESPONSIBILITIES, DUTIES OR AUTHORITY WHICH IS NOT CURED
WITHIN TEN (10) DAYS FOLLOWING THE COMPANY'S RECEIPT OF NOTICE FROM THE
EXECUTIVE SETTING FORTH IN REASONABLE DETAIL THE NATURE OF SUCH DIMINUTION;
PROVIDED, HOWEVER, THAT THE COMPANY'S FAILURE TO CONTINUE THE EXECUTIVE'S
APPOINTMENT OR ELECTION AS A DIRECTOR OR OFFICER OF ANY OF ITS AFFILIATES, A
CHANGE IN REPORTING RELATIONSHIPS RESULTING FROM THE DIRECT OR INDIRECT CONTROL
OF THE COMPANY (OR A SUCCESSOR CORPORATION) BY ANOTHER CORPORATION OR OTHER
ENTITY AND ANY DIMINUTION OF THE BUSINESS OF THE COMPANY OR ANY OF ITS
AFFILIATES OR ANY SALE OR TRANSFER OF EQUITY, PROPERTY OR OTHER ASSETS OF THE
COMPANY OR ANY OF ITS AFFILIATES SHALL NOT CONSTITUTE "GOOD REASON"; OR
(III)
MATERIAL FAILURE OF THE COMPANY TO PROVIDE
THE EXECUTIVE THE BASE SALARY AND BENEFITS IN ACCORDANCE WITH THE TERMS OF
SECTION 4 HEREOF, EXCLUDING AN INADVERTENT FAILURE WHICH IS CURED WITHIN TEN
(10) DAYS FOLLOWING THE COMPANY'S RECEIPT OF NOTICE FROM THE EXECUTIVE
SPECIFYING IN REASONABLE DETAIL THE NATURE OF SUCH FAILURE.
IN THE EVENT OF TERMINATION IN ACCORDANCE WITH THIS SECTION 5(E), AND, IN
ACCORDANCE WITH THE NO DUPLICATION OF BENEFITS PRINCIPLE CONTAINED IN
SECTION 5(D), THEN THE EXECUTIVE WILL BE ENTITLED TO THE SEVERANCE BENEFITS HE
WOULD HAVE BEEN ENTITLED TO RECEIVE HAD THE EXECUTIVE BEEN TERMINATED BY THE
COMPANY OTHER THAN FOR CAUSE IN ACCORDANCE WITH SECTION 5(D) ABOVE; PROVIDED
THAT THE EXECUTIVE SATISFIES ALL CONDITIONS TO SUCH ENTITLEMENT, INCLUDING
WITHOUT LIMITATION THE SIGNING OF A TIMELY AND EFFECTIVE RELEASE OF CLAIMS.
(F)
BY THE EXECUTIVE OTHER THAN FOR GOOD
REASON.
THE EXECUTIVE MAY TERMINATE HIS EMPLOYMENT HEREUNDER AT ANY TIME UPON
SIXTY (60) DAYS' NOTICE TO THE COMPANY. IN THE EVENT OF TERMINATION OF THE
EXECUTIVE PURSUANT TO THIS SECTION 5(F), THE BOARD MAY ELECT TO WAIVE THE PERIOD
OF NOTICE, OR ANY PORTION THEREOF, AND, IF THE BOARD SO ELECTS, THE COMPANY WILL
PAY THE EXECUTIVE HIS BASE SALARY FOR THE INITIAL SIXTY (60) DAYS OF THE NOTICE
PERIOD (OR FOR ANY REMAINING PORTION OF SUCH PERIOD).
THE COMPANY SHALL HAVE NO
FURTHER OBLIGATION TO THE EXECUTIVE, OTHER THAN FOR ANY FINAL COMPENSATION DUE
TO HIM.
(G)
TIMING OF PAYMENTS.
IF, AT THE TIME OF THE
EXECUTIVE'S SEPARATION FROM SERVICE, THE EXECUTIVE IS A "SPECIFIED EMPLOYEE," AS
HEREINAFTER DEFINED, ANY AND ALL AMOUNTS PAYABLE UNDER THIS SECTION 5 IN
CONNECTION WITH SUCH SEPARATION FROM SERVICE THAT CONSTITUTE
6
DEFERRED COMPENSATION SUBJECT TO SECTION 409A OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, ("SECTION 409A"), AS DETERMINED BY THE COMPANY IN ITS SOLE
DISCRETION, AND THAT WOULD (BUT FOR THIS SENTENCE) BE PAYABLE