ATTEMPTING TO SECURE OR SECURING ANY PERSONAL PROFIT IN CONNECTION
WITH ANY TRANSACTION ENTERED INTO ON BEHALF OF THE COMPANY; (V) THE
MISAPPROPRIATION (OR ATTEMPTED MISAPPROPRIATION) OF ANY OF THE COMPANY'S FUNDS
OR PROPERTY; OR (VI) THE EXCESSIVE USE (FOLLOWING AT LEAST ONE WRITTEN WARNING)
OF ALCOHOL OR ANY ILLEGAL USE OF DRUGS OR NARCOTICS.
FOR PURPOSES OF THIS
SECTION, NO ACT OR FAILURE TO ACT ON THE EMPLOYEE'S PART SHALL BE CONSIDERED
"WILLFUL" UNLESS DONE, OR OMITTED TO BE DONE, BY HIM NOT IN GOOD FAITH AND
WITHOUT REASONABLE BELIEF THAT HIS ACTION OR OMISSION WAS IN THE BEST INTEREST
OF THE COMPANY.
NOTWITHSTANDING THE FOREGOING, EMPLOYEE SHALL NOT BE DEEMED TO
HAVE BEEN TERMINATED FOR CAUSE WITHOUT WRITTEN NOTICE PURSUANT TO SECTION 13 AND
PROVIDING EMPLOYEE AN OPPORTUNITY TO BE HEARD BEFORE THE BOARD WITH THE
PROVISIONS RELIED UPON FOR TERMINATION PROVIDED IN REASONABLE DETAIL.
5
(B)
SALARY; BENEFITS; BONUSES.
UPON TERMINATION FOR CAUSE, THE
COMPANY SHALL (I) CONTINUE THE BASE SALARY THROUGH THE DATE OF TERMINATION,
(II) PAY ALL FRINGE BENEFITS THROUGH THE END OF THE CALENDAR MONTH IN WHICH
TERMINATION OCCURS, AND (III) PAY ANY ANNUAL BONUSES PURSUANT TO SECTION 3.2
TREATING THE EFFECTIVE DATE OF TERMINATION AS BEING THE LAST DAY OF THE FISCAL
YEAR IN WHICH TERMINATION UNDER THIS SECTION 4 OCCURS.
4.2
RETIREMENT.
TERMINATION OF EMPLOYMENT BASED
ON "RETIREMENT" SHALL MEAN TERMINATION IN ACCORDANCE WITH ANY RETIREMENT
ARRANGEMENT ESTABLISHED WITH EMPLOYEE'S CONSENT, INCLUDING SETTLEMENT FOR THE
ANNUAL BONUS PURSUANT TO SECTION 3.2.
4.3
DEATH OF EMPLOYEE.
THIS AGREEMENT SHALL
TERMINATE UPON THE DEATH OF EMPLOYEE; PROVIDED, HOWEVER, THE COMPANY SHALL
(I) CONTINUE EMPLOYEE'S BASE SALARY THROUGH THE MONTH IN WHICH DEATH OCCURS AND
FOR THE FOLLOWING THREE MONTHS AND (II) SHALL MAKE PAYMENTS AS PROVIDED IN
SECTION 4.5 IN PLACE OF (X) ANNUAL BONUS PAYMENTS PROVIDED IN SECTION 3.2 AND
(Y) THE LONG-TERM INCENTIVE PAYOUT PURSUANT TO SECTION 3.3.
4.4
DISABILITY OF EMPLOYEE.
(A)
TERMINATION; DEFINITION.
IN THE EVENT EMPLOYEE BECOMES MENTALLY
OR PHYSICALLY DISABLED DURING THE TERM OF EMPLOYMENT HEREUNDER, THIS AGREEMENT
SHALL TERMINATE AS OF THE DATE SUCH DISABILITY IS ESTABLISHED.
AS USED IN THIS
SECTION, THE TERM "DISABLED" OR "DISABILITY" MEANS SUFFERING FROM ANY MENTAL OR
PHYSICAL CONDITION, OTHER THAN USE OF ALCOHOL OR ILLEGAL USE OF DRUGS OR
NARCOTICS, WHICH RENDERS EMPLOYEE UNABLE TO PERFORM SUBSTANTIALLY ALL OF
EMPLOYEE'S DUTIES AND SERVICES UNDER THIS AGREEMENT IN A SATISFACTORY MANNER FOR
120 CONSECUTIVE DAYS, OR 180 DAYS DURING ANY 12-MONTH PERIOD.
IF, BY REASON OF
DISABILITY, EMPLOYEE IS ABSENT FROM THE FULL-TIME PERFORMANCE OF HIS DUTIES WITH
THE COMPANY FOR THE PERIODS ABOVE PROVIDED, NOTICE OF TERMINATION MAY BE GIVEN
AND IF EMPLOYEE HAS NOT RETURNED TO THE FULL-TIME PERFORMANCE OF HIS DUTIES
WITHIN 30 DAYS THEREAFTER, EMPLOYEE'S DISABILITY SHALL BE DEEMED "ESTABLISHED"
AT THE END OF SUCH 30-DAY PERIOD.
(B)
SALARY, BENEFITS.
DURING ANY PERIOD THAT EMPLOYEE FAILS TO
PERFORM HIS FULL DUTIES WITH THE COMPANY BECAUSE HE IS DISABLED, EMPLOYEE SHALL
CONTINUE TO RECEIVE BASE SALARY UNTIL