RETIREMENT SHALL NOT ADVERSELY AFFECT, INTERFERE WITH OR OTHERWISE
IMPAIR IN ANY WAY HIS RIGHT TO RECEIVE PAYMENTS AND BENEFITS HEREUNDER.
CONVERSELY, IF EXECUTIVE TERMINATES HIS EMPLOYMENT ON ACCOUNT OF RETIREMENT AND
AT SUCH TIME IS NOT (X) TERMINATING HIS EMPLOYMENT FOR GOOD REASON PURSUANT TO
THIS AGREEMENT OR (Y) BEING TERMINATED BY THE COMPANY WITHOUT CAUSE PURSUANT TO
THIS AGREEMENT, HE SHALL NOT BE ENTITLED TO THE PAYMENTS AND BENEFITS PROVIDED
IN THIS AGREEMENT.
(II)
CAUSE. FOR PURPOSES OF THIS AGREEMENT,
"CAUSE" SHALL MEAN (I) WILLFUL AND CONTINUED FAILURE TO PERFORM SUBSTANTIALLY
THE EXECUTIVE'S MATERIAL DUTIES WITH THE COMPANY (OTHER THAN ANY SUCH FAILURE
RESULTING FROM THE EXECUTIVE'S INCAPACITY DUE TO PHYSICAL OR MENTAL ILLNESS)
AFTER A WRITTEN DEMAND FOR SUBSTANTIAL PERFORMANCE SPECIFYING THE MANNER IN
WHICH THE EXECUTIVE HAS NOT PERFORMED SUCH DUTIES IS DELIVERED BY THE CHIEF
EXECUTIVE OFFICER OF THE COMPANY TO THE EXECUTIVE, (II) ENGAGING IN WILLFUL AND
SERIOUS MISCONDUCT THAT IS INJURIOUS TO THE COMPANY OR ANY OF ITS SUBSIDIARIES,
(III) ONE OR MORE ACTS OF FRAUD OR PERSONAL DISHONESTY RESULTING IN OR INTENDED
TO RESULT IN PERSONAL ENRICHMENT AT THE EXPENSE OF THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (IV) SUBSTANTIAL ABUSIVE USE OF ALCOHOL, DRUGS OR SIMILAR
SUBSTANCES THAT, IN THE SOLE JUDGMENT OF THE COMPANY, IMPAIRS THE EXECUTIVE'S
JOB PERFORMANCE, (V) MATERIAL VIOLATION OF ANY MATERIAL COMPANY POLICY THAT
RESULTS IN MATERIAL HARM TO THE COMPANY OR ANY OF ITS SUBSIDIARIES OR
(VI) INDICTMENT FOR OR CONVICTION OF A FELONY OR OF ANY CRIME (WHETHER OR NOT A
FELONY) INVOLVING MORAL TURPITUDE. NOTWITHSTANDING THE FOREGOING, EXECUTIVE
SHALL NOT BE DEEMED TO HAVE BEEN TERMINATED FOR CAUSE
4
UNLESS AND UNTIL THERE SHALL HAVE BEEN DELIVERED TO EXECUTIVE A COPY OF A
RESOLUTION DULY ADOPTED BY THE AFFIRMATIVE VOTE OF NOT LESS THAN THREE-QUARTERS
(3/4) OF THE INCUMBENT DIRECTORS OF THE BOARD AT A MEETING OF THE BOARD CALLED
AND HELD FOR SUCH PURPOSE (AFTER REASONABLE NOTICE TO EXECUTIVE AND AN
OPPORTUNITY FOR EXECUTIVE, TOGETHER WITH EXECUTIVE'S COUNSEL, TO BE HEARD BEFORE
THE BOARD), FINDING THAT, IN THE GOOD FAITH OPINION OF THE BOARD, EXECUTIVE WAS
GUILTY OF CONDUCT SET FORTH ABOVE IN THIS SECTION 3(II) AND SPECIFYING THE
PARTICULARS THEREOF IN DETAIL.
(III)
GOOD REASON. EXECUTIVE SHALL BE ENTITLED TO
TERMINATE EMPLOYMENT WITH GOOD REASON. FOR THE PURPOSE OF THIS AGREEMENT, "GOOD
REASON" SHALL MEAN THE OCCURRENCE, WITHOUT EXECUTIVE'S EXPRESS WRITTEN CONSENT,
OF ANY OF THE FOLLOWING CIRCUMSTANCES DURING THE PROTECTED PERIOD UNLESS, IN THE
CASE OF SECTIONS 3(III)(A), (E), OR (F), SUCH CIRCUMSTANCES ARE FULLY CORRECTED
PRIOR TO THE DATE SPECIFIED AS THE DATE OF TERMINATION (AS DEFINED IN
SECTION 3(V)) IN THE NOTICE OF TERMINATION (AS DEFINED IN SECTION 3(IV)) GIVEN
IN RESPECT THEREOF:
(A)
THE ASSIGNMENT TO EXECUTIVE OF ANY DUTIES OR
RESPONSIBILITIES NOT COMPARABLE TO EXECUTIVE'S POSITION (AS IT EXISTED
IMMEDIATELY PRIOR TO THE CHANGE IN CONTROL) AND THAT RESULTS IN A SUBSTANTIAL
DIMINUTION OR MATERIAL ADVERSE CHANGE IN SUCH DUTIES OR RESPONSIBILITIES FROM
THOSE IN