SHALL,
NOTWITHSTANDING THE DETERMINATION REFERENCED IN CLAUSE (IV) OF THIS SECTION
3.3(C), HAVE THE BURDEN OF ESTABLISHING THAT THE ACTIONS OR OMISSIONS SPECIFIED
IN THE NOTICE OF CONSIDERATION DID IN FACT OCCUR AND DO CONSTITUTE CAUSE AND
THAT THE COMPANY HAS SATISFIED THE PROCEDURAL REQUIREMENTS OF THIS SECTION
3.3(C).
THE SATISFACTION OF THE COMPANY'S BURDEN SHALL REQUIRE CLEAR AND
CONVINCING EVIDENCE.
3.4
GOOD REASON.
(A)
DURING THE POST-CHANGE PERIOD, EXECUTIVE MAY TERMINATE HIS
EMPLOYMENT FOR GOOD REASON IN ACCORDANCE WITH THE SUBSTANTIVE AND PROCEDURAL
PROVISIONS OF THIS SECTION.
A TERMINATION OF EMPLOYMENT FOR GOOD REASON WILL BE
DEEMED TO HAVE OCCURRED DURING THE POST-CHANGE PERIOD IF EXECUTIVE GIVES NOTICE
AS PROVIDED IN SECTION 3.4(D) WITHIN THE POST-CHANGE PERIOD AND THE TERMINATION
OF EMPLOYMENT IS NO MORE THAN THIRTY (30) DAYS AFTER THE EXPIRATION OF THE CURE
PERIOD DESCRIBED IN SECTION 3.4(E).
(B)
"GOOD REASON" MEANS THE FIRST TO OCCUR OF THE FOLLOWING ACTIONS OR
OMISSIONS THAT, UNLESS OTHERWISE SPECIFIED, OCCURS DURING A POST-CHANGE PERIOD
WITHOUT THE CONSENT OF EXECUTIVE:
(i)
a material diminution in Executive's base compensation;
(ii)
any material diminution in Executive's authority, duties, or
responsibilities as set forth in Paragraph 2.1(a);
(iii)
any material diminution in the authority, duties, or
responsibilities of the person to whom Executive reports, including a
requirement that Executive report to a corporate officer or employee instead of
reporting directly to the Board, if applicable;
14
(iv)
a material change in the geographic location at which Executive
must perform services; or
(v)
any other action or inaction that constitutes a material breach of
this Agreement by the Company;
(C)
ANY REASONABLE DETERMINATION BY EXECUTIVE THAT ANY OF THE EVENTS
SPECIFIED IN SUBSECTION (B) ABOVE HAS OCCURRED AND CONSTITUTES GOOD REASON SHALL
BE CONCLUSIVE AND BINDING FOR ALL PURPOSES, UNLESS THE COMPANY ESTABLISHES BY
CLEAR AND CONVINCING EVIDENCE THAT EXECUTIVE DID NOT HAVE ANY REASONABLE BASIS
FOR SUCH DETERMINATION.
(D)
IN THE EVENT OF ANY TERMINATION OF EMPLOYMENT BY EXECUTIVE FOR
GOOD REASON, EXECUTIVE SHALL NOTIFY THE COMPANY OF THE EVENTS CONSTITUTING SUCH
GOOD REASON BY A NOTICE OF TERMINATION WITHIN NINETY DAYS OF THE DATE EXECUTIVE
SHOULD HAVE KNOWN OF THE EVENTS CONSTITUTING GOOD REASON.
(E)
COMPANY SHALL HAVE THIRTY DAYS FROM THE DATE EXECUTIVE PROVIDES
NOTICE OF TERMINATION PURSUANT TO SECTION 3.4(D) TO REMEDY THE CONDITIONS
CONSTITUTING GOOD REASON DURING WHICH PERIOD NO TERMINATION FOR GOOD REASON
SHALL BE DEEMED TO HAVE OCCURRED.
(F)
IF THE COMPANY HAS NOT REMEDIED THE CONDITIONS CONSTITUTING GOOD
REASON WITHIN THE THIRTY-DAY PERIOD DESCRIBED IN SECTION 3.4(E), THEN, IN ORDER
FOR EXECUTIVE'S TERMINATION TO CONSTITUTE A TERMINATION FOR GOOD REASON, THE
DATE OF TERMINATION OF EMPLOYMENT MUST OCCUR NO LATER THAN TWELVE (12) MONTHS
AFTER THE DATE OF THE FIRST ACTION OR OMISSION CONSTITUTING GOOD REASON.
ARTICLE IV.
COMPANY'S OBLIGATIONS UPON A TERMINATION OF EMPLOYMENT
4.1
IF BY EXECUTIVE FOR GOOD REASON OR BY THE COMPANY OTHER THAN FOR
CAUSE OR DISABILITY.
IF, DURING THE POST-CHANGE PERIOD, THE COMPANY TERMINATES
EXECUTIVE'S EMPLOYMENT OTHER THAN FOR CAUSE