CLAUSE (III) SHALL BE
EFFECTIVE UNLESS SUCH FAILURE CONTINUES AFTER THE EXECUTIVE HAS BEEN GIVEN
WRITTEN NOTICE THEREOF AND THIRTY (30) DAYS THEREAFTER IN WHICH TO CURE THE
SAME.
(B)
"DISABILITY" SHALL MEAN A PHYSICAL OR MENTAL
INCAPACITY THAT (I) PREVENTS THE EXECUTIVE FROM PERFORMING THE ESSENTIAL
FUNCTIONS OF HIS POSITION WITH THE COMPANY FOR A PERIOD OF ONE HUNDRED EIGHTY
(180) OR MORE DAYS, WHETHER OR NOT CONSECUTIVE, OCCURRING WITHIN ANY PERIOD OF
TWELVE (12) CONSECUTIVE MONTHS, AS DETERMINED IN ACCORDANCE WITH ANY LONG-TERM
DISABILITY PLAN PROVIDED BY THE COMPANY IN WHICH THE EXECUTIVE IS A PARTICIPANT,
OR (II) CAN BE EXPECTED, IN THE OPINION OF A LICENSED PHYSICIAN SELECTED BY THE
BOARD AND REASONABLY ACCEPTABLE TO THE EXECUTIVE, TO RESULT IN THE EXECUTIVE'S
DEATH OR TO LAST FOR A CONTINUOUS PERIOD OF ONE HUNDRED EIGHTY (180) OR MORE
DAYS OCCURRING WITHIN ANY PERIOD OF TWELVE (12) CONSECUTIVE MONTHS.
(C)
"GOOD REASON" SHALL MEAN THE EXECUTIVE'S
RESIGNATION WITHIN NINETY (90) DAYS AFTER THE OCCURRENCE OF ONE OR MORE OF THE
FOLLOWING ACTIONS TAKEN BY THE COMPANY WITHOUT THE EXECUTIVE'S CONSENT: (I) A
MATERIAL DIMINUTION OF THE EXECUTIVE'S RESPONSIBILITIES OR AUTHORITY HEREUNDER,
OR (II) A MATERIAL DECREASE IN THE EXECUTIVE'S COMPENSATION AND BENEFITS, IN THE
AGGREGATE; PROVIDED, HOWEVER, THAT THE FOLLOWING SHALL NOT CONSTITUTE GOOD
REASON: (X) ANY VARIATIONS IN THE AMOUNT OF ANY ANNUAL BONUS FROM ONE YEAR TO
ANOTHER, INCLUDING THE FAILURE TO AWARD ANY SUCH COMPENSATION IN ANY GIVEN YEAR
(PROVIDED SUCH VARIATION OR FAILURE TO AWARD AN ANNUAL BONUS IS CONSISTENT WITH
THE PERFORMANCE
4
OF THE COMPANY AND ITS SUBSIDIARIES AND IS BASED ON OBJECTIVES COMMENSURATE WITH
THE EXECUTIVE'S POSITION AS COO AS ESTABLISHED BY THE COMPENSATION COMMITTEE FOR
THAT YEAR), OR (Y) AN AGREEMENT BETWEEN CERBERUS CAPITAL MANAGEMENT, L.P.
("CERBERUS") AND THE EXECUTIVE PURSUANT TO WHICH THE EXECUTIVE IS TRANSFERRED TO
ANOTHER EQUIVALENT POSITION WITHIN CERBERUS OPERATIONS OR ANOTHER PORTFOLIO
COMPANY AND THE NEW EMPLOYING ENTITY OFFERS THE EXECUTIVE EMPLOYMENT PURSUANT TO
SUBSTANTIALLY SIMILAR TERMS AND CONDITIONS AS THIS AGREEMENT.
NOTWITHSTANDING
THE FOREGOING, NO RESIGNATION FOR GOOD REASON SHALL BE EFFECTIVE UNLESS AND
UNTIL THE EXECUTIVE GIVES THE COMPANY NOTICE OF THE REASONS FOR A GOOD REASON
RESIGNATION, AND THE COMPANY FAILS TO REMEDY THE SAME WITHIN THIRTY (30) DAYS
THEREAFTER.
5.
CONSEQUENCES OF TERMINATION.
5.1
TERMINATION DUE TO DEATH OR DISABILITY.
IN
THE EVENT OF A TERMINATION DUE TO THE EXECUTIVE'S DEATH OR DISABILITY, THE
EXECUTIVE OR HIS ESTATE, AS THE CASE MAY BE, SHALL BE ENTITLED TO, IN LIEU OF
ANY OTHER COMPENSATION AND BENEFITS HEREUNDER:
(A)
PAYMENT OF HIS BASE SALARY AT THE RATE IN
EFFECT AT THE TIME OF TERMINATION UNTIL THE EFFECTIVE DATE OF TERMINATION;
(B)
PAYMENT FOR ANY ACCRUED BUT UNUSED VACATION
DAYS IN ACCORDANCE WITH COMPANY POLICY;
(C)
REIMBURSEMENT OF EXPENSES INCURRED BUT NOT
PAID PRIOR TO SUCH TERMINATION; AND
(D)
SUCH RIGHTS TO OTHER BENEFITS AS MAY BE
PROVIDED IN APPLICABLE PENSION AND WELFARE PLANS OF THE COMPANY OR BY LAW,
ACCORDING TO THE TERMS