SEVERANCE AND NON-COMPETITION AGREEMENT
This
SEVERANCE AND NON-COMPETITION AGREEMENT (“Agreement”)
is
made and entered into by and between Argyle Security, Inc., a Delaware
corporation (the “Company”),
and
Xx. Xxxxxx Xxxxxx, an individual (the “Employee”), effective as of October 3,
2008 (the “Effective
Date”).
Capitalized terms not otherwise defined shall have the meaning ascribed to
such
terms in Schedule I.
A. Whereas,
the Company is a corporation organized under the laws of the State of Delaware
and is conducting business in San Antonio, Bexar County, Texas.
B. Whereas,
the Company and the Employee desire to establish certain terms and conditions
related to their employment relationship on the terms set forth in this
Agreement.
NOW,
THEREFORE, in consideration of (i) the mutual covenants herein contained (ii)
Employee’s current and ongoing exposure to Confidential Information (as defined
in Section 2.1 of this Agreement) of the Company, (iii) employment of Employee
upon the terms, conditions and covenants set forth between Company and Employee
and each act performed pursuant hereto, and (iv) other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
Company and Employee agree as follows:
I.
Term
of Employment
1.1 Term. The
Employee’s employment shall be “at will,” meaning that either the Employee or
the Company shall be entitled to terminate the employment at any time and for
any reason, with or without Cause (hereinafter defined). Any contrary
representations that may have been made to the Employee shall be superseded
by
this Agreement. This Agreement shall constitute the full and complete agreement
between the Employee and the Company on the “at-will” nature of the Employee’s
employment, which may only be changed in an express written agreement signed
by
the Employee and a duly authorized officer of the Company.
1.2 Rights
Upon Termination. Except
as
expressly provided in this Section 1.2, upon the termination of the
Employee’s employment, the Employee shall only be entitled to the compensation
and benefits earned up through the date of termination. Employee’s right to
compensation for periods after the Employee’s employment with the Company
terminates shall be determined in accordance with the following:
(a) Change
of Control/Termination Without Cause or for Good Reason.
In the
event the Employee’s employment with the Company is terminated within the two
(2) year period immediately following the occurrence of a Change of Control,
either (i) by the Company without Cause, or (ii) by the Employee for Good
Reason, then the Employee shall, subject to Employee’s execution of a separation
and release agreement provided by the Company (the “Separation
Agreement”),
and
subject further to the applicable requirements of Section 1.2(i):
(i)
receive a lump sum payment in the amount of (a) 2.99 times (Employee’s base
salary in effect on the date of termination (“Salary”)
plus
Employee’s target bonus (“Bonus”))
plus
(b) Employee’s current year bonus earned up through the date of termination
(calculated by taking Employee’s annual target bonus times a fraction, the
numerator of which is the number of days Employee was employed during the year
of termination and the denominator of which is 365), with such target bonus
and
current year bonus determined in accordance with the Company’s bonus plan then
in effect which is applicable to Employee. The lump sum payment to be paid
under
this clause (i) shall be paid within thirty (30) days following the date of
Employee’s termination; and
(ii)
receive a lump sum payment equal to 36 times the monthly premium cost
(determined as of the date of termination) for Employee’s medical insurance
under the Company’s benefit plans then in effect, with such amount to be paid
within thirty (30) days following the date of Employee’s
termination;
(b) Termination
Without Cause or for Good Reason.
In the
event Employee’s employment with the Company is terminated before the occurrence
of a Change of Control or more than two (2) years after the occurrence of a
Change of Control, either (i) by the Company without Cause , or (ii) by the
Employee for Good Reason , then the Employee shall, subject to Employee’s
execution of a Separation Agreement:
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(i)
receive an amount of (a) 2 times (Employee’s Salary plus Employee’s target
bonus) plus (b) Employee’s current year bonus earned up through the date of
termination (calculated by taking Employee’s annual target bonus times a
fraction, the numerator of which is the number of days Employee was employed
during the year of termination and the denominator of which is 365), with such
target bonus and current year bonus determined in accordance with the Company’s
bonus
plan then in effect which is applicable to Employee. All such amounts to be
paid
hereunder shall be paid in equal monthly installments beginning on the thirtieth
(30th)
day
following the date of Employee’s termination and continuing on the same day in
each subsequent month for a period of 23 months thereafter; and
(ii)
receive monthly payments in the amount necessary to continue Employee’s medical
benefits coverage in effect at the time of termination with
such
amounts to be paid out in monthly installments at the same times as the payments
in (b) (i) above for a period of 24 months following the date of such
termination;
(c) Death. If
Employee dies during the term of employment, Employee’s employment and this
Agreement shall automatically terminate as of the date of Employee’s death. Upon
such termination, the Company shall have no further obligation to Employee
or
his estate, except to pay to the estate any accrued, but unpaid, Salary up
through the date of such termination, plus Bonus, plus those benefits payable
in
accordance with (b) (i) above.
(d) Disability. If,
during the term of employment, Employee is prevented from performing his duties
for Company by reason of becoming totally disabled, then the Company, on prior
notice to Employee, may terminate Employee’s employment and this Agreement . For
purposes of this Agreement, Employee shall be deemed to have become totally
disabled when (i) he receives “total disability benefits” under the Company’s
disability plan (whether funded with insurance or self-funded by the Company),
if such a plan is maintained by the Company, or (ii) the Company’s Board
(exclusive of Employee if he sits on the Board), upon the written report of
a
qualified physician (after complete examination of Employee) designated by
the
Board, determines that Employee has become physically and/or mentally incapable
of performing his duties under this Agreement on a permanent basis. In the
event
of termination of Employee under this subsection (d), the Company shall pay
Employee any accrued but unpaid Salary, as of the date on which such permanent
disability is determined, but then remains unpaid, plus those benefits payable
in accordance with (b) (i) and (ii) above.. The provisions of the preceding
sentence shall not affect Employee’s rights to receive payments under the
Company’s disability insurance plan, if any, or under any individual disability
insurance plan that the Employee may have in place.
(e) Notwithstanding
anything to the contrary contained in this Section 1.2, to the extent that
the
Employee is determined to be a "key employee" (as defined in Section 416(i)
of
the Code but without regard to paragraph (5) thereof), the payment or payments
under this Section 1.2 which constitute "nonqualified deferred compensation"
under Section 409A of the Code shall be made to the Employee no earlier
than the earlier of the last day of the sixth complete calendar month following
the termination of the Employee's employment with the Company, or (ii) the
date
of the Employee's death, consistent with the requirements of Section 409A of
the
Code. Any payment or payments delayed by reason of the immediately preceding
sentence shall be paid to the Employee in a single lump sum on the first day
following the last day of the sixth complete calendar month following the date
of the termination of the Employee's employment with the Company, in order
to
catch up to the original payment schedule. Notwithstanding the immediately
preceding 2 sentences, no delay shall be required to the extent that such
payments (i) are payable during the short-term deferral period set forth in
Treasury Regulation Section 1.409A-1(b)(4), and/or (ii) do not exceed an amount
equivalent to 200% of the lesser of (A) the Employee's annualized compensation
from the Company for the Employee's taxable year immediately preceding his
or
her taxable year in which the Employee's termination of employment with the
Company occurs, or (B) the maximum amount of compensation that may be taken
into
account under tax-qualified retirement plans pursuant to Section 401(a)(17)
of
the Code, for the calendar year in which the termination of the Employee's
employment with Company occurs.
(f) Excess
Parachute Payments.
(i) If
it is determined that any amount, right or benefit paid or payable (or otherwise
provided or to be provided) to the Employee by the Company or any of its
affiliates under this Agreement or any other plan, program or arrangement under
which Employee participates or is a party, other than amounts payable under
this
Section 1.2(f) (collectively, the “Payments”),
would
constitute an “excess parachute payment” within the meaning of Section 280G of
the Code, subject to the excise tax imposed by Section 4999 of the Code, as
amended from time to time (the “Excise
Tax”),
and
the present value of such Payments (calculated in a manner consistent with
that
set forth in the applicable regulations promulgated under Section 280G of the
Code) is equal to or less than $50,000.00 greater than the threshold at which
such amount becomes an “excess parachute payment,” then the amount of the
Payments payable to the Employee under this Agreement shall be reduced (a
“Reduction”)
to the
extent necessary so that no portion of such Payments payable to the Employee
is
subject to the Excise Tax.
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(ii)
In
the event it shall be determined that the amount of the Payments payable to
the
Employee is more than $50,000.00 greater than the threshold at which such amount
becomes an “excess parachute payment,” then the Employee shall be entitled to
receive an additional payment from the Company (a “Gross-Up
Payment”)
in an
amount such that, after payment by the Employee of all taxes (including any
interest or penalties imposed with respect to such taxes), including, without
limitation, any income and employment taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment
(and any interest and penalties imposed with respect thereto), the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax (including
any
interest and penalties imposed with respect thereto) imposed upon the Payments.
(iii)
All
determinations required to be made under Section 1.2(f), including whether
and
when a Gross-Up Payment or a Reduction is required, the amount of such Gross-Up
Payment or Reduction and the assumptions to be utilized in arriving at such
determination, shall be made by an independent, nationally recognized accounting
firm mutually acceptable to the Company and the Employee (the “Auditor”);
provided that in the event a Reduction is determined to be required, the
Employee may determine which Payments shall be reduced in order to comply with
the provisions of Section 1.2 (f). The Auditor shall promptly provide detailed
supporting calculations to both the Company and Employee following any
determination that a Reduction or Gross-Up Payment is necessary. All fees and
expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment,
as
determined pursuant to Section 1.2(f), shall be paid by the Company to the
Employee within five (5) days of the receipt of the Auditor’s determination. All
determinations made by the Auditor shall be binding upon the Company and the
Employee; provided that if, notwithstanding the Auditor’s initial determination,
the Internal Revenue Service (or other applicable taxing authority) determines
that an additional Excise Tax is due with respect to the Payments, then the
Auditor shall recalculate the amount of the Gross-Up Payment or Reduction
Amount, if applicable, based upon the determinations made by the Internal
Revenue Service (or other applicable taxing authority) after taking into account
any additional interest and penalties (the “Recalculated
Amount”)
and
the Company shall pay to the Employee the excess of the Recalculated Amount
over
the Gross-Up Payment initially paid to the Employee or the amount of the
Payments after the Reduction, as applicable, within five (5) days of the receipt
of the Auditor’s recalculation the Gross-Up Payment.
II.
Restrictive
Covenants
2.1 Trade
Secrets and Proprietary and Confidential Information.
Employee recognizes and acknowledges that Employee has acquired in the past,
is
presently acquiring, and will continue to acquire in the future during his
employment with the Company, access to certain trade secrets and confidential
and proprietary information of the Company, including, but not limited to:
(i)
technical information, know-how, trade secrets, financial data, marketing and
sales plans, customer and supplier lists, Developments (as defined in Section
2.6 of this Agreement) and other commercial information relating to the
Company’s business and (ii) certain information that the Company has acquired or
received from third parties in confidence (collectively, the “Confidential
Information”). Employee acknowledges that the Confidential Information he
obtains through his employment hereunder constitutes valuable, special and
unique property of the Company and that the Company would suffer great loss
and
damage if he should violate the covenants set forth in this Agreement. Employee
acknowledges that such covenants and conditions are reasonable and necessary
for
the protection of the Company’s business.
2.2 Nondisclosure
of Trade Secrets, Proprietary and Confidential
Information.
Employee
agrees that, without the prior written approval of the Company, Employee shall
not during the Term of Employment or thereafter for any reason disclose any
of
the Confidential Information of the Company to any person, firm, company or
other entity (except for authorized personnel of the Company) for any reason
or
purpose whatsoever; provided, however, that this Section shall not apply to
the
extent that Employee shall be required to provide information pursuant to a
valid, lawful subpoena or court order so long as Employee shall have made his
best efforts in good faith to cause the court of relevant jurisdiction, to
the
greatest extent possible, to limit the scope of such subpoena or order and
protect the confidentiality of the information so disclosed.
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2.3 Solicitation
of Employees.
Employee agrees that during the term of employment and for a period of two
(2)
years following termination of Employee’s employment hereunder, he will not,
directly or indirectly, by himself or by acting in concert with others, employ
or attempt to employ or solicit for employment with any business that is
competitive with the Company, any of the Company’s employees, contractors, or
other personnel, or seek to influence any employees, contractors, or other
personnel of the Company to leave their employment or other engagement with
the
Company.
2.4 Solicitation
of Business of Company.
Employee covenants and agrees that during the term of employment and for a
period of two (2) years following termination of Employee’s employment
hereunder, Employee will not attempt, directly or indirectly, by himself or
acting in concert with others, to influence any of the Company’s clients,
suppliers or other business associates not to do business with or not to
continue to do business with the Company or any of its affiliates.
2.5 Non-Competition. Because
Employee's services to the Company are special and because the Company agrees
to
provide Confidential Information of the Company to Employee from the moment
of
execution of this Agreement and on an ongoing basis throughout the term of
employment, Employee covenants and agrees that during his term of employment
and
for a period of two (2) years thereafter, Employee will not, without the prior
written consent of the Company, directly or indirectly, either on his own behalf
or on behalf of or in connection with any person, partnership, limited liability
company, corporation, professional company or otherwise, engage in any business
that would be directly or indirectly competitive with the Company (including
any
subsidiaries and affiliates) as of the date of Employee's termination in any
market served by the Company.
2.6 Survival
of Covenants.
The
provisions of this Article II shall survive any expiration or termination of
this Agreement and shall continue to bind the parties hereto in accordance
with
the terms hereof. The covenants contained in this Article II shall be construed
as covenants or agreements independent of any other provision of this Agreement,
and the allegation or existence of any claim or cause of action of Employee
against the Company, whether predicated on this Agreement or otherwise, shall
not constitute a defense to the enforcement by the Company of the covenants
contained herein.
2.7 Reformation.
If any
provision of this Article II should be found by any court of competent
jurisdiction to be unenforceable by reason of being too broad as to the period
of time, territory or scope set forth therein, then that provision shall be
modified to reflect the maximum period of time, the largest territory or the
broadest scope, as the case may be, that would be found enforceable by such
court.
2.8 Remedies.
In the
event of breach or threatened breach by Employee of any provision of this
Article II, the Company shall be entitled to relief by temporary restraining
order, temporary injunction, permanent injunction or otherwise in addition
to
other legal and equitable relief to which the Company may be entitled, including
any and all monetary damages that the Company may incur as a result of said
breach, violation or threatened breach or violation. The Company may pursue
any
remedy available to it concurrently or consecutively in any order as to any
breach, violation or threatened breach or violation, and the pursuit of one
of
such remedies at any time shall not be deemed an election of remedies or waiver
of the right to pursue any other of such remedies as to such breach, violation
or threatened breach or violation, or as to any other breach, violation or
threatened breach or violation.
III.
Miscellaneous
Provisions
3.1
Binding
Arbitration Any
controversy between the Company and Employee involving the construction or
application of any of the terms, covenants or conditions of this Agreement
shall, on the written request of one party served on the other, be submitted
to
arbitration. Such arbitration shall comply with and be governed by the
provisions of the Texas General Arbitration Act, Sections 171.001 through
171.098 of the Texas Civil Practice and Remedies Code. The Company and Employee
shall each appoint one person as an arbitrator to hear and determine the
dispute, and if they shall be unable to agree, then the two arbitrators so
chosen shall select a third impartial arbitrator whose decision shall be final
and conclusive upon the Company and Employee. The expense of arbitration
proceedings conducted under this Section 3.1 shall be borne by the parties
in
such proportions as the arbitrators decide. This provision shall not prohibit
the Company from seeking any injunctive relief from a court at any
time.
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3.2 Notices.
Whenever, in connection with this Agreement, any notice is required to be given
or any other act or event is to be done or occur on or by a particular number
of
days, and the date thus particularized should be a Saturday, Sunday, or holiday
in the City of San Antonio, Texas, that date shall be postponed to the next
day
that is not a Saturday, Sunday, or holiday in the City of San Antonio, Texas.
If
a notice or other document is required to be given hereunder to the Company
or
Employee, that notice or other document shall be personally delivered, sent
by a
nationally recognized overnight courier or be mailed to the party entitled
to
receive the same by registered or certified mail, return receipt requested,
at
the appropriate address set forth below or at such other address as such party
shall designate in a written notice given in accordance with this
Section:
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Company:
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Employee:
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Xx.
Xxxxxx Xxxxxx
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Attn:
Xxxxxx X. Xxxxxxx, CFO
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000
Xxxxxx Xxxxxx
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000
Xxxxxxx Xxxxx Xx.
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Xxx
Xxxxxxx, XX 00000
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Xxxxx
000
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Xxx
Xxxxxxx, Xxxxx 00000
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Notice
shall be deemed given on the date of actual delivery if delivered in person
or
by nationally recognized overnight courier, or, if mailed, then on the date
noted on the return receipt.
3.3 Binding
Effect. The
rights and obligations of the parties shall inure to the benefit of and shall
be
binding upon their respective heirs, representatives, successors and assigns,
as
the case may be.
3.4 Severability.
If any
provision contained in this Agreement is determined to be void, illegal or
unenforceable, in whole or in part, then the other provisions contained herein
shall remain in full force and effect as if the provision that was determined
to
be void, illegal or unenforceable had not been contained herein.
3.5 Waiver,
Modification and Integration.
The
waiver by any party hereto of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any subsequent breach by any party.
This instrument contains the entire agreement of the parties concerning the
subject matter hereof and supersedes all prior or contemporaneous
representations, understandings and agreements, either oral or in writing,
between the parties hereto with respect to the subject matter hereof and all
such prior or contemporaneous representations, understandings and agreements,
both oral and written, are hereby terminated. This Agreement may be modified,
altered or amended by the Company at any time.
3.6 GOVERNING
LAW.
THIS
AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF TEXAS, AND ACTIONS HEREON SHALL BE BROUGHT EXCLUSIVELY IN BEXAR COUNTY,
TEXAS.
3.7 Counterpart
Execution.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute but one and
the
same instrument.
3.8 Captions.
The
captions herein are inserted for convenience only and shall not affect the
construction of this Agreement.
3.9 Assignment. In
the
event of any merger or consolidation of the Company with any other corporation,
partnership, limited liability company or other entity or company, sale by
the
Company of a major portion of its assets or of its business and good will,
or
any other corporate reorganization involving the Company, this Agreement may
be
assigned and transferred to such successor in interest as an asset of the
Company upon such assignee assuming the Company’s obligations under this
Agreement. Upon any such assignment, Employee shall continue to perform his
duties and obligations according to the terms of this Agreement. Employee shall
not have any right to delegate or transfer any duty or obligation to be
performed by her under this Agreement to any third party.
3.10.
Attorneys’
Fees and Costs.
If any
dispute arising under this Agreement is finally adjudicated by a court of
competent jurisdiction, the party that prevails shall be entitled to recover
its
legal fees and costs, including reasonable attorneys’ fees, from the other
party.
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3.11. Gender.
References in this Agreement to the male gender shall be deemed to include
the
female and neuter genders and vice-a-versa, unless otherwise stated or unless
the circumstances eliminate such inclusion.
3.12. Drafting.
No
provision of this Agreement will be interpreted in favor of, or against, any
of
the parties hereto by reason of the extent to which any such party or its
counsel participated in the drafting thereof or by reason of the extent to
which
any such provision is inconsistent with any prior draft hereof or
thereof.
3.13 Construction
and Interpretation of the Word “or”. For
the
purposes of this Agreement, the word “or” shall be deemed to include both the
disjunctive and conjunctive (i.e. “and/or”) where appropriate and to reflect the
manifest intent of the parties.
3.14 Section
409A.
All
payments of "nonqualified deferred compensation" (within the meaning of Section
409A of the Code) by the Company to the Employee are intended to comply with
the
requirements of Section 409A of the Code, and this Agreement shall be
interpreted consistent therewith. Neither the Company or the Employee,
individually or in combination, may accelerate any such deferred payment, except
in compliance with Section 409A of the Code, and no amount shall be paid prior
to the earliest date on which it is permitted to be paid under Section 409A
of
the Code. Notwithstanding anything to the contrary contained in Section
3.5, no amendment may be made to this Agreement if it would cause the Agreement
or any payment hereunder to not be in compliance with the requirements of
Section 409A of the Code. Unless otherwise expressly provided, any payment
of
compensation by the Company to the Employee, whether pursuant to this Agreement
or otherwise, shall be made on or before the fifteenth day of the third calendar
month next following the later of the end of the calendar year or the end of
the
Company's fiscal year, in either case in which the Employee's right to such
payment vests (ie, is not subject to a "substantial risk of forfeiture" for
purposes of Section 409A of the Code).
[SIGNATURE
PAGE TO FOLLOW]
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IN
WITNESS WHEREOF, this Agreement is executed as of the date first set forth
above.
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Company:
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By:/s/
Xxxxxx X.
Xxxxxxx
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Name:
Xxxxxx X. Xxxxxxx
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Title:
Chief Financial Officer
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Employee:
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/s/
Xxxxxx
Xxxxxx
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XXXXXX
XXXXXX
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SCHEDULE
I
DEFINITIONS
SCHEDULE
Change
of Control means
the
earliest to occur of the following:
(i)
the
public announcement by the Company or any person (other than the Company, any
subsidiary of the Company or any employee benefit plan of the Company or of
any
subsidiary of the Company) (“Person”)
that
such Person, who or which, together with all “affiliates” and “associates”
(within the meanings of such terms under Rule 12b-2 of the Exchange Act) of
such
Person, shall be the beneficial owner of (fifty percent (50%) or more of the
Company’s voting stock then outstanding;
(ii)
the
commencement of, or after the first public announcement of any Person to
commence, a tender or exchange offer the consummation of which would result
in
any Person becoming the beneficial owner of the Company’s voting stock
aggregating fifty percent (50%) or more of the Company’s then outstanding voting
stock;
(iii)
the
announcement of any transaction relating to the Company required to be described
pursuant to the requirements of Item 6(e) of Schedule 14A of Regulation 14A
of
the Securities and Exchange Commission under the Exchange Act;
(iv)
a
proposed change in the constituency of the Company’s Board of Directors (the
“Board”)
such
that, during any period of two (2) consecutive years, individuals who at the
beginning of such period constitute the Board cease for any reason to constitute
at least a majority thereof, unless the election or nomination for election
by
the shareholders of the Company of each new director was approved by a vote
of
at least two-thirds (2/3) of the directors then still in office who were members
of the Board at the beginning of the period;
(v)
the
Company enters into an agreement of merger, consolidation, share exchange or
similar transaction with any other corporation other than a transaction which
would result in the Company’s voting stock outstanding immediately prior to the
consummation of such transaction continuing to represent (either by remaining
outstanding or by being converted into voting stock of the surviving entity)
at
least two-thirds (2/3) of the combined voting power of the Company’s or such
surviving entity’s outstanding voting stock immediately after such
transaction;
(vi)
the
Board approves a plan of liquidation or dissolution of the Company or an
agreement for the sale or disposition by the Company (in one transaction or
a
series of transactions) of all or substantially all of the Company’s assets to a
person or entity which is not an affiliate of the Company; or
(vii)
Any
other event which shall be deemed by a majority of the members of the Board
to
constitute a “Change of Control.”
Cause
means
termination of Employee, upon written notice, limited to one or more of the
following reasons:
(i) fraud,
misappropriation or embezzlement by Employee in connection with the Company
as
determined by the affirmative vote of at least a majority of the Board
(exclusive of Employee if he sits on the Board), or any other act of personal
dishonesty, fraud or misrepresentation taken by Employee which was intended
to
result in substantial gain or personal enrichment for Employee at the expense
of
the Company;
(ii) mismanagement
or neglect of Employee’s duties as determined by the affirmative vote of at
least a majority of the Board (exclusive of Employee if he sits on the Board);
(iii) willful
and unauthorized disclosure of Confidential Information (as defined in Section
2.1 of this Agreement);
(iv) Employee’s
breach of any material term or provision of this Agreement, after written notice
to Employee of the particular details of the breach and the failure of Employee
to cure the breach within thirty (30) days thereafter;
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(v) failure
or refusal of the Employee to comply with the policies, procedures, standards
or
regulations of the Company, as may be in effect from time to time;
(vi) Employee’s
conviction of a felony or other crime;
(vii) Employee’s
breach or violation of any other Company policy, procedure or agreement after
written notice to Employee of the particular details of the breach and the
failure of Employee to cure such breach within thirty (30) days
thereafter
Good
Reason
any of
the following which occur without the Employee’s consent, but only to the extent
that (a) the termination of employment occurs within one (1) year following
the
initial existence of any of the events set forth in (i), (ii) or (iii) below,
(b) Employee provides written notice to the Company of the occurrence of any
of
the events set forth in (i), (ii), or (iii) below within ninety (90) days
from
the date of its initial existence, and (c) the Company fails to cure the
occurrence within thirty (30) days after receipt of written notice from
Employee:
(i)
reduction of Employee’s Salary unless such reduction is generally applicable to
all senior executives as determined by the Board;
(ii)
the
Employee’s duties and or responsibilities are materially reduced;
(iii)
relocation of Employee’s regular work address to a location which requires
Employee to travel more than 50 miles from his residence.
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