BREACH OF FIDUCIARY DUTY, GROSS NEGLIGENCE OR
WILLFUL AND MATERIAL MISCONDUCT, MATERIAL FRAUD OR WILLFUL AND MATERIAL
MISREPRESENTATION; (III) EXECUTIVE'S MATERIAL BREACH OF ANY OF HIS OBLIGATIONS
UNDER SECTION 8(A) THROUGH 8(E) OF THIS AGREEMENT; OR (IV) EXECUTIVE'S FAILURE
TO COMPETENTLY PERFORM HIS DUTIES
AFTER RECEIVING NOTICE FROM THE EMPLOYER
SPECIFICALLY IDENTIFYING THE MANNER IN WHICH EXECUTIVE HAS FAILED TO PERFORM (IT
BEING UNDERSTOOD THAT, FOR THIS PURPOSE, THE MANNER AND LEVEL OF EXECUTIVE'S
PERFORMANCE SHALL NOT BE DETERMINED BASED ON THE FINANCIAL PERFORMANCE
(INCLUDING WITHOUT LIMITATION THE PERFORMANCE OF THE STOCK) OF THE EMPLOYER).
(IV)
WITHOUT CAUSE.
EXECUTIVE'S EMPLOYMENT HEREUNDER MAY BE TERMINATED
BY THE EMPLOYER AT ANY TIME WITH OR WITHOUT CAUSE (AS DEFINED IN
SECTION 6(A)(III) ABOVE), BY A MAJORITY VOTE OF ALL OF THE MEMBERS OF THE BOARD
UPON WRITTEN NOTICE TO EXECUTIVE, SUBJECT ONLY TO THE SEVERANCE PROVISIONS
SPECIFICALLY SET FORTH IN SECTION 7.
(B)
TERMINATION BY EXECUTIVE.
(I)
DISABILITY.
EXECUTIVE MAY TERMINATE HIS EMPLOYMENT HEREUNDER FOR
DISABILITY WITHIN THE MEANING OF SECTION 6(A)(II) ABOVE.
(II)
WITH GOOD REASON.
EXECUTIVE'S EMPLOYMENT HEREUNDER MAY BE
TERMINATED BY EXECUTIVE WITH GOOD REASON EFFECTIVE IMMEDIATELY BY WRITTEN NOTICE
TO THE BOARD.
FOR PURPOSES OF THIS AGREEMENT, WITH "GOOD REASON" SHALL MEAN:
(I) A FAILURE BY THE EMPLOYER TO PAY COMPENSATION IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3, WHICH FAILURE HAS NOT BEEN CURED WITHIN 14 DAYS AFTER
THE NOTICE OF THE FAILURE (SPECIFYING THE SAME) HAS BEEN GIVEN BY EXECUTIVE TO
THE EMPLOYER; OR (II) A MATERIAL BREACH BY THE EMPLOYER OF ANY OTHER PROVISION
OF THIS AGREEMENT WHICH HAS NOT BEEN CURED WITHIN 30 DAYS AFTER NOTICE OF
NONCOMPLIANCE (SPECIFYING THE NATURE OF THE NONCOMPLIANCE) HAS BEEN GIVEN BY
EXECUTIVE TO THE EMPLOYER.
ON AND AFTER THE OCCURRENCE OF A CHANGE-IN-CONTROL
(AS DEFINED IN SECTION 6(C) BELOW), "GOOD REASON" SHALL ALSO INCLUDE, IN
ADDITION TO THE FOREGOING:
(A)
a change in duties, responsibilities, status or positions with the
Employer that does not represent a promotion from or maintaining of Executive's
duties, responsibilities, status or positions as in effect immediately prior to
the Change-in-Control, or any removal of Executive from or any failure to
reappoint
4
or reelect Executive to such positions, except in connection with the
termination of Executive's employment for Cause, disability, retirement or
death;
(B)
a reduction by the Employer in Executive's Base Salary or bonus
compensation as in effect immediately prior to the Change-in-Control;
(C)
the failure by the Employer to continue in effect any of the
benefit plans including, but not limited to ongoing stock option and equity
awards, in which Executive is participating at the time of the Change-in-Control
of the Employer (unless Executive is permitted to participate in any substitute
benefit plan with substantially the same terms and to the same extent and with
the same rights as Executive had with respect to the benefit plan that is
discontinued) other than as a result of the normal expiration of any such
benefit plan in accordance with its terms as