MAY TERMINATE THE EXECUTIVE'S EMPLOYMENT HEREUNDER.
AS USED IN THIS AGREEMENT, THE TERM "DISABILITY" SHALL MEAN INABILITY OF THE
EXECUTIVE, DUE TO PHYSICAL OR MENTAL CONDITION, TO PERFORM THE ESSENTIAL
FUNCTIONS OF THE EXECUTIVE'S JOB, AFTER CONSIDERATION OF THE AVAILABILITY OF
REASONABLE ACCOMMODATIONS, FOR MORE THAN 180 TOTAL CALENDAR DAYS DURING ANY
PERIOD OF 12 CONSECUTIVE MONTHS.
(C)
FOR CAUSE.
PARENT OR THE COMPANY MAY
TERMINATE THE EXECUTIVE'S EMPLOYMENT HEREUNDER FOR CAUSE.
FOR PURPOSES OF THIS
AGREEMENT, PARENT OR THE COMPANY SHALL HAVE "CAUSE" TO TERMINATE THE EXECUTIVE'S
EMPLOYMENT HEREUNDER UPON A DETERMINATION BY PARENT OR THE COMPANY THAT THE
EXECUTIVE (I) HAS COMMITTED FRAUD OR MISAPPROPRIATED, STOLEN OR EMBEZZLED FUNDS
OR PROPERTY FROM THE COMPANY OR AN AFFILIATE OF THE COMPANY OR SECURED OR
ATTEMPTED TO SECURE PERSONALLY ANY PROFIT IN CONNECTION WITH ANY TRANSACTION
ENTERED INTO ON BEHALF OF THE
4
COMPANY OR ANY AFFILIATE OF THE COMPANY, (II) HAS BEEN CONVICTED OF A FELONY IN
A FINAL JUDGMENT NOT SUBJECT TO APPEAL, OR ENTERED A PLEA OF GUILTY OR "NOLO
CONTENDRE" TO, A FELONY WHICH IS LIKELY TO CAUSE MATERIAL HARM TO THE COMPANY'S
(OR ANY AFFILIATE OF THE COMPANY) BUSINESS, CUSTOMER OR SUPPLIER RELATIONS,
FINANCIAL CONDITION OR PROSPECTS, (III) HAS, NOTWITHSTANDING NOT LESS THAN 30
DAYS' PRIOR WRITTEN NOTICE FROM PARENT OR THE COMPANY, WILLFULLY FAILED TO
PERFORM (OTHER THAN BY REASON OF ILLNESS OR TEMPORARY DISABILITY ) HIS MATERIAL
DUTIES HEREUNDER, (IV) HAS KNOWINGLY VIOLATED OR BREACHED ANY MATERIAL LAW OR
REGULATION TO THE MATERIAL DETRIMENT OF THE COMPANY OR ANY AFFILIATES OF THE
COMPANY OR ITS BUSINESS, OR (V) HAS BREACHED ANY NON-COMPETITION, NON-DISCLOSURE
OR NON-SOLICITATION AGREEMENT BETWEEN EXECUTIVE, PARENT AND/OR THE COMPANY WHICH
CAUSES OR IS REASONABLY LIKELY TO CAUSE MATERIAL HARM TO THE COMPANY OR ANY OF
ITS AFFILIATES.
FOR PURPOSES OF THIS PROVISION, NO ACT OR FAILURE TO ACT, ON
THE PART OF THE EXECUTIVE, SHALL BE CONSIDERED "WILLFUL" UNLESS IT IS DONE, OR
OMITTED TO BE DONE, BY THE EXECUTIVE IN BAD FAITH OR WITHOUT REASONABLE BELIEF
THAT HIS ACTION OR OMISSION WAS IN THE BEST INTERESTS OF THE COMPANY AND ITS
AFFILIATES.
(D)
WITHOUT CAUSE.
PARENT OR THE COMPANY MAY AT
ANY TIME TERMINATE THE EXECUTIVE'S EMPLOYMENT HEREUNDER WITHOUT CAUSE.
(E)
TERMINATION BY THE EXECUTIVE.
(I)
THE EXECUTIVE MAY TERMINATE HIS
EMPLOYMENT HEREUNDER (A) FOR GOOD REASON OR (B) AT ANY TIME AFTER THE DATE
HEREOF BY GIVING SIXTY (60) DAYS PRIOR NOTICE OF HIS INTENTION TO TERMINATE.
(II)
FOR PURPOSES OF THIS AGREEMENT, "GOOD
REASON" SHALL MEAN (A) A FAILURE BY THE COMPANY TO COMPLY WITH ANY MATERIAL
PROVISION OF THIS AGREEMENT (OTHER THAN THE COMPANY'S PAYMENT OBLIGATIONS
REFERRED TO IN CLAUSE (E) BELOW) WHICH HAS NOT BEEN CURED WITHIN THIRTY (30)
DAYS AFTER NOTICE OF SUCH NONCOMPLIANCE HAS BEEN GIVEN BY THE EXECUTIVE TO THE
COMPANY, (B) THE ASSIGNMENT TO THE EXECUTIVE OF ANY MATERIAL DUTIES INCONSISTENT
WITH THE EXECUTIVE'S POSITION WITH THE COMPANY OR A SUBSTANTIAL ADVERSE
ALTERATION IN THE NATURE OR STATUS OF THE