AGREEMENT, "CAUSE" MEANS
(I) THE EXECUTIVE'S CONVICTION OF A FELONY INVOLVING MORAL TURPITUDE THAT
RESULTS IN HARM TO THE COMPANY OR ITS AFFILIATES, (II) A JUDICIAL DETERMINATION
THAT THE EXECUTIVE COMMITTED FRAUD, MISAPPROPRIATION, OR EMBEZZLEMENT AGAINST
ANY PERSON, OR (III) THE EXECUTIVE'S BREACH OF ANY
3
TERMS OF THIS AGREEMENT OR WILLFUL OR GROSS AND REPEATED NEGLECT OR MISCONDUCT
IN THE PERFORMANCE OF HIS DUTIES UNDER SECTION 2(B) HEREOF, PROVIDED THAT THE
COMPANY SHALL FIRST HAVE GIVEN THE EXECUTIVE WRITTEN NOTICE IDENTIFYING THE
EXECUTIVE'S BREACH, NEGLECT OR MISCONDUCT, AND THE EXECUTIVE SHALL HAVE FAILED
TO SATISFACTORILY CURE (AS DETERMINED IN GOOD FAITH BY THE COMPANY) SUCH BREACH,
NEGLECT, OR MISCONDUCT WITHIN 15 DAYS AFTER RECEIVING SUCH WRITTEN NOTICE FROM
THE COMPANY.
(C)
TERMINATION BY EXECUTIVE.
THE EXECUTIVE MAY TERMINATE HIS EMPLOYMENT AT
ANY TIME WITH OR WITHOUT GOOD REASON.
FOR PURPOSES OF THIS AGREEMENT, "GOOD
REASON" MEANS ANY OF THE FOLLOWING ACTIONS BY THE COMPANY WITHOUT THE
EXECUTIVE'S WRITTEN CONSENT:
(A)
THE FAILURE BY THE COMPANY OR HOLDING TO ELECT
THE EXECUTIVE TO THE POSITION SET FORTH IN THE FIRST SENTENCE OF SECTION 2(B) OR
THE REMOVAL OF THE EXECUTIVE FROM ANY SUCH POSITION;
(B)
A REDUCTION IN THE EXECUTIVE'S BASE SALARY OR
PERFORMANCE BONUS OPPORTUNITY (OTHER THAN AS PROVIDED IN SECTION 3); OR
(C)
THE FAILURE OF THE COMPANY TO OBTAIN THE
ASSUMPTION IN WRITING OF ITS OBLIGATION TO PERFORM THIS AGREEMENT BY ANY
SUCCESSOR AS CONTEMPLATED BY SECTION 10(B);
provided that the Executive shall have first delivered a written notice to the
Company of his intention to terminate his employment for Good Reason within 30
days of having actual knowledge of such act or acts or failure or failures to
act and such notice stating in detail the particular act or acts or failure or
failures to act that constitute the grounds on which the proposed termination
for Good Reason is based, and the Company shall have failed to cure such breach,
act, failure or conduct within 30 days after receiving such written notice from
the Executive.
(D)
NOTICE OF TERMINATION.
ANY TERMINATION OF EXECUTIVE'S EMPLOYMENT BY THE
COMPANY FOR CAUSE OR WITHOUT CAUSE AND ANY TERMINATION BY THE EXECUTIVE FOR GOOD
REASON OR WITHOUT GOOD REASON SHALL BE COMMUNICATED BY WRITTEN NOTICE (A "NOTICE
OF TERMINATION") GIVEN IN ACCORDANCE WITH SECTION 11(E) HEREOF SPECIFYING THE
APPLICABLE TERMINATION PROVISION IN THIS AGREEMENT RELIED UPON.
(E)
DATE OF TERMINATION.
FOR THE PURPOSE OF THIS AGREEMENT, THE TERM "DATE OF
TERMINATION" MEANS (I) IN THE CASE OF A TERMINATION FOR WHICH A NOTICE OF
TERMINATION IS REQUIRED, THE DATE SPECIFIED IN SUCH NOTICE OF TERMINATION (OR,
IF LATER, THE EXPIRATION OF ANY APPLICABLE CURE OR NOTICE PERIOD) AND (II) IN
ALL OTHER CASES, THE ACTUAL DATE ON WHICH THE EXECUTIVE'S EMPLOYMENT TERMINATES
DURING THE EMPLOYMENT PERIOD.
(F)
RESIGNATION UPON TERMINATION.
EFFECTIVE AS OF ANY DATE OF TERMINATION
UNDER THIS SECTION 7 OR AS OF SUCH EARLIER DATE AS THE COMPANY MAY REQUEST
FOLLOWING THE RECEIPT OR DELIVERY OF A