AND ADVERSE RESPECT WITH EXECUTIVE'S POSITION(S),
DUTIES OR RESPONSIBILITIES WITH THE COMPANY IMMEDIATELY PRIOR TO SUCH CHANGE IN
CONTROL (INCLUDING ANY MATERIAL AND ADVERSE DIMINUTION OF SUCH DUTIES OR
RESPONSIBILITIES); PROVIDED, HOWEVER, THAT GOOD REASON SHALL NOT BE DEEMED TO
OCCUR UPON A CHANGE IN DUTIES OR RESPONSIBILITIES (OTHER THAN REPORTING
RESPONSIBILITIES) THAT IS SOLELY AND DIRECTLY A RESULT OF THE COMPANY NO LONGER
BEING A PUBLICLY TRADED ENTITY AND DOES NOT INVOLVE ANY OTHER EVENT SET FORTH IN
THIS PARAGRAPH (J) OR (B) MATERIAL AND ADVERSE CHANGE IN EXECUTIVE'S TITLES OR
OFFICES (INCLUDING, IF APPLICABLE, MEMBERSHIP ON THE BOARD) WITH THE COMPANY AS
IN EFFECT IMMEDIATELY PRIOR TO SUCH CHANGE IN CONTROL;
(II)
A MATERIAL BREACH OF AN EMPLOYMENT
AGREEMENT TO WHICH EXECUTIVE AND THE COMPANY ARE PARTIES;
(III)
A REDUCTION BY THE COMPANY IN EXECUTIVE'S
RATE OF ANNUAL BASE SALARY OR TARGET ANNUAL BONUS OPPORTUNITY AS IN EFFECT
IMMEDIATELY PRIOR TO SUCH CHANGE IN CONTROL OR AS THE SAME MAY BE INCREASED FROM
TIME TO TIME THEREAFTER;
(IV)
ANY REQUIREMENT OF THE COMPANY THAT EXECUTIVE
(A) BE BASED ANYWHERE MORE THAN THIRTY-FIVE (35) MILES FROM THE OFFICE WHERE
EXECUTIVE IS LOCATED AT THE TIME OF THE CHANGE IN CONTROL, IF SUCH RELOCATION
INCREASES EXECUTIVE'S COMMUTE BY MORE THAN TWENTY (20) MILES, OR (B) TRAVEL ON
COMPANY BUSINESS TO AN EXTENT SUBSTANTIALLY GREATER THAN THE TRAVEL OBLIGATIONS
OF EXECUTIVE IMMEDIATELY PRIOR TO SUCH CHANGE IN CONTROL;
(V)
A REDUCTION BY THE COMPANY OF MORE THAN 5%
IN EXECUTIVE'S AGGREGATE BENEFITS UNDER EMPLOYEE BENEFIT PLANS, WELFARE BENEFIT
PLANS AND FRINGE BENEFIT PLANS IN WHICH EXECUTIVE IS PARTICIPATING IMMEDIATELY
PRIOR TO SUCH CHANGE IN CONTROL, UNLESS EXECUTIVE IS PERMITTED TO PARTICIPATE IN
OTHER PLANS PROVIDING EXECUTIVE WITH SUBSTANTIALLY EQUIVALENT BENEFITS IN THE
AGGREGATE (AT SUBSTANTIALLY EQUIVALENT COST WITH RESPECT TO WELFARE BENEFIT
PLANS);
(VI)
THE FAILURE OF THE COMPANY TO PROVIDE
EXECUTIVE WITH PAID VACATION IN ACCORDANCE WITH THE MOST FAVORABLE VACATION
POLICIES OF THE COMPANY AND ITS AFFILIATES AS IN EFFECT FOR EXECUTIVE
IMMEDIATELY PRIOR TO SUCH CHANGE IN CONTROL, INCLUDING THE CREDITING OF ALL
SERVICE FOR WHICH EXECUTIVE HAD BEEN CREDITED UNDER SUCH VACATION POLICIES PRIOR
TO THE CHANGE IN CONTROL;
(VII)
ANY REFUSAL BY THE COMPANY TO CONTINUE TO PERMIT
EXECUTIVE TO ENGAGE IN ACTIVITIES NOT DIRECTLY RELATED TO THE BUSINESS OF THE
COMPANY IN WHICH EXECUTIVE WAS PERMITTED TO ENGAGE PRIOR TO THE CHANGE IN
CONTROL;
4
(VIII)
ANY PURPORTED TERMINATION OF EXECUTIVE'S
EMPLOYMENT WHICH IS NOT EFFECTUATED PURSUANT TO SECTION 14 (AND WHICH WILL NOT
CONSTITUTE A TERMINATION HEREUNDER); OR
(IX)
THE FAILURE OF THE COMPANY TO OBTAIN THE
ASSUMPTION AND, IF APPLICABLE, GUARANTEE, AGREEMENT FROM ANY SUCCESSOR (AND
PARENT CORPORATION) AS CONTEMPLATED IN SECTION 12(B).
An isolated, insubstantial and inadvertent action taken in good faith and which
is remedied by the Company within ten (10) days after receipt of notice thereof
given by Executive shall not constitute Good Reason.
Executive's right to
terminate employment for Good Reason shall not be affected by Executive's
incapacity