PERFORMANCE HAS BEEN DELIVERED TO EXECUTIVE SPECIFYING
THE MANNER IN WHICH EXECUTIVE HAS FAILED SUBSTANTIALLY TO PERFORM, OR (II)
INTENTIONALLY ENGAGED IN CONDUCT WHICH IS DEMONSTRABLY AND MATERIALLY INJURIOUS
TO THE COMPANY; PROVIDED, THAT NO TERMINATION OF EXECUTIVE'S EMPLOYMENT SHALL BE
FOR CAUSE AS SET FORTH IN CLAUSE (II) ABOVE UNTIL THERE SHALL HAVE BEEN
DELIVERED TO EXECUTIVE A COPY OF A WRITTEN NOTICE SETTING FORTH THE CONDUCT SET
FORTH IN CLAUSE (II) AND SPECIFYING THE PARTICULARS THEREOF IN DETAIL.
NO ACT,
NOR FAILURE TO ACT, SHALL BE CONSIDERED "INTENTIONAL" UNLESS EXECUTIVE HAS
ACTED, OR FAILED TO ACT, WITH A LACK OF GOOD FAITH AND WITH A LACK OF REASONABLE
BELIEF THAT EXECUTIVE'S ACTION OR FAILURE TO ACT WAS IN THE BEST INTEREST OF THE
COMPANY.
B.
BY DEATH.
EXECUTIVE'S EMPLOYMENT SHALL TERMINATE AUTOMATICALLY
UPON EXECUTIVE'S DEATH.
UPON A TERMINATION AS A RESULT OF EXECUTIVE'S DEATH,
THE COMPANY SHALL PAY TO EXECUTIVE'S BENEFICIARIES OR ESTATE, AS APPROPRIATE,
ANY COMPENSATION THEN DUE AND OWING.
THEREAFTER, ALL OBLIGATIONS OF THE COMPANY
UNDER THIS AGREEMENT SHALL CEASE.
NOTHING IN THIS SECTION 4.B. SHALL AFFECT ANY
ENTITLEMENT OF EXECUTIVE'S HEIRS OR DEVISEES TO THE BENEFITS OF ANY LIFE
INSURANCE PLAN OR OTHER APPLICABLE BENEFITS TO WHICH THEY ARE ENTITLED AS A
RESULT OF EXECUTIVE'S DEATH.
4
C.
BY DISABILITY.
IF EXECUTIVE SUFFERS FROM A DISABILITY, THEN,
TO THE EXTENT PERMITTED BY LAW, THE COMPANY MAY TERMINATE EXECUTIVE'S
EMPLOYMENT.
"DISABILITY" SHALL MEAN THAT EXECUTIVE IS UNABLE TO CARRY OUT THE
RESPONSIBILITIES AND FUNCTIONS OF THE POSITION HELD BY EXECUTIVE BY REASON OF
ANY PHYSICAL OR MENTAL IMPAIRMENT FOR MORE THAN 120 DAYS IN ANY TWELVE-MONTH
PERIOD.
UPON A TERMINATION AS A RESULT OF EXECUTIVE'S DISABILITY, THE COMPANY
SHALL PAY TO EXECUTIVE ALL COMPENSATION TO WHICH HE IS ENTITLED UP THROUGH THE
DATE OF TERMINATION, AND THEREAFTER ALL OBLIGATIONS OF THE COMPANY UNDER THIS
AGREEMENT SHALL CEASE.
NOTHING IN THIS AGREEMENT SHALL AFFECT EXECUTIVE'S
RIGHTS UNDER ANY DISABILITY PLAN IN WHICH EXECUTIVE IS A PARTICIPANT.
D.
FOR GOOD REASON.
EXECUTIVE'S TERMINATION SHALL BE FOR "GOOD
REASON" IF EXECUTIVE PROVIDES WRITTEN NOTICE TO THE COMPANY'S CHIEF EXECUTIVE
OFFICER AND THE BOARD OF DIRECTORS OF THE COMPANY OF THE GOOD REASON WITHIN
THIRTY (30) DAYS OF THE EVENT CONSTITUTING GOOD REASON AND PROVIDES THE COMPANY
WITH A PERIOD OF TWENTY (20) DAYS TO CURE THE EVENT CONSTITUTING GOOD REASON AND
THE COMPANY FAILS TO CURE THE GOOD REASON WITHIN THAT PERIOD.
FOR PURPOSES OF
THIS AGREEMENT, "GOOD REASON" SHALL MEAN EITHER (A) A MATERIAL REDUCTION IN
EXECUTIVE'S BASE SALARY OR (B) A RELOCATION OF EXECUTIVE'S PLACE OF EMPLOYMENT
BY MORE THAN FIFTY (50) MILES, PROVIDED AND ONLY IF SUCH CHANGE, REDUCTION OR
RELOCATION IS EFFECTED BY THE COMPANY WITHOUT EXECUTIVE'S CONSENT.
5.
TERMINATION OBLIGATIONS
A.
RETURN OF PROPERTY.
EXECUTIVE AGREES THAT ALL PROPERTY
(INCLUDING WITHOUT LIMITATION ALL EQUIPMENT, TANGIBLE PROPRIETARY INFORMATION,
DOCUMENTS, RECORDS, NOTES, CONTRACTS AND COMPUTER-GENERATED MATERIALS) FURNISHED
TO OR CREATED OR PREPARED BY EXECUTIVE INCIDENT TO EXECUTIVE'S EMPLOYMENT
BELONGS TO THE COMPANY AND SHALL BE