THE EMPLOYEE IN
CONDUCT WHICH IS DEMONSTRABLY AND MATERIALLY INJURIOUS TO THE COMPANY,
MONETARILY OR OTHERWISE, OR (III) THE BREACH BY THE EMPLOYEE OF ANY OF THE
COVENANTS SET FORTH IN SECTION 8 HEREOF.
(B)
FOR PURPOSES OF THIS SECTION 4, NO ACT, OR FAILURE TO ACT, ON THE
EMPLOYEE'S PART SHALL BE CONSIDERED "WILLFUL" UNLESS DONE, OR OMITTED TO BE
DONE, BY THE EMPLOYEE IN BAD FAITH AND WITHOUT REASONABLE BELIEF THAT SUCH
ACTION OR OMISSION WAS IN THE BEST INTEREST OF THE COMPANY. NOTWITHSTANDING THE
FOREGOING, THE EMPLOYEE SHALL NOT BE DEEMED TO HAVE BEEN TERMINATED FOR CAUSE
UNLESS AND UNTIL THERE SHALL HAVE BEEN DELIVERED TO HIM/HER A COPY OF A
RESOLUTION DULY ADOPTED BY THE AFFIRMATIVE VOTE OF NOT LESS THAN THREE-QUARTERS
OF THE ENTIRE MEMBERSHIP OF THE BOARD OF DIRECTORS AT A MEETING OF THE BOARD OF
DIRECTORS CALLED AND HELD FOR THAT PURPOSE (AFTER REASONABLE NOTICE TO THE
EMPLOYEE AND AN OPPORTUNITY FOR THE EMPLOYEE, TOGETHER WITH HIS/HER COUNSEL, TO
BE HEARD BEFORE THE BOARD OF DIRECTORS) FINDING THAT IN THE GOOD FAITH OPINION
OF THE BOARD OF DIRECTORS THE EMPLOYEE IS GUILTY OF THE CONDUCT SET FORTH ABOVE
IN CLAUSES (A)(I), (II) OR (III) OF THIS SECTION 4 AND SPECIFYING THE
PARTICULARS THEREOF IN DETAIL.
5.
PRIOR TERMINATION. ANYTHING IN THIS AGREEMENT TO THE CONTRARY
NOTWITHSTANDING, IF THE EMPLOYEE'S EMPLOYMENT WITH THE COMPANY IS TERMINATED
PRIOR TO THE DATE ON WHICH A CHANGE OF CONTROL OCCURS EITHER (I) BY THE COMPANY
OTHER THAN FOR CAUSE OR (II) BY THE EMPLOYEE FOR GOOD REASON, AND IT IS
REASONABLY DEMONSTRATED BY EMPLOYEE THAT SUCH TERMINATION OF EMPLOYMENT (A) WAS
AT THE REQUEST OF A THIRD PARTY WHO HAS TAKEN STEPS REASONABLY CALCULATED TO
EFFECT THE CHANGE OF CONTROL, OR (B) OTHERWISE AROSE IN CONNECTION WITH OR
ANTICIPATION OF THE CHANGE OF CONTROL, THEN FOR ALL PURPOSES OF THIS AGREEMENT
THE TERMINATION SHALL BE DEEMED TO HAVE OCCURRED UPON A CHANGE OF CONTROL AND
THE EMPLOYEE WILL BE ENTITLED TO SALARY AND BENEFITS CONTINUATION AS PROVIDED
FOR IN SECTION 3 HEREOF.
6.
EMPLOYMENT AT WILL. SUBJECT TO THE PROVISIONS OF ANY OTHER
AGREEMENT BETWEEN THE EMPLOYEE AND THE COMPANY, THE EMPLOYEE SHALL REMAIN AN
EMPLOYEE AT WILL AND NOTHING HEREIN SHALL CONFER UPON THE EMPLOYEE ANY RIGHT TO
CONTINUED EMPLOYMENT AND SHALL NOT AFFECT THE RIGHT OF THE COMPANY TO TERMINATE
THE EMPLOYEE FOR ANY REASON NOT PROHIBITED BY LAW; PROVIDED, HOWEVER, THAT ANY
SUCH REMOVAL SHALL BE WITHOUT PREJUDICE TO ANY RIGHTS THE EMPLOYEE MAY HAVE TO
SALARY AND BENEFITS CONTINUATION HEREUNDER.
8
7.
CONSTRUCTION OF AGREEMENT.
(A)
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
UNDER THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT REGARD TO ITS
CONFLICT OF LAW PROVISIONS.
(B)
SEVERABILITY. IN THE EVENT THAT ANY ONE OR MORE OF THE PROVISIONS
OF THIS AGREEMENT SHALL BE HELD TO BE INVALID, ILLEGAL OR UNENFORCEABLE, THE
VALIDITY, LEGALITY OR ENFORCEABILITY OF THE REMAINING PROVISIONS SHALL NOT IN
ANY WAY BE