Common use of Termination in Anticipation of Change in Control Clause in Contracts

Termination in Anticipation of Change in Control. 1. The Executive's employment shall be deemed to have been terminated by the Company without Cause during the Protection Period if the Executive's employment is terminated by the Company otherwise without Cause not during the Protection Period and such termination of employment (a) was at the request of a third party that has theretofore taken steps reasonably calculated to effect a Change in Control; or (b) otherwise arose in anticipation of a Change in Control. 2. The Executive's employment shall be deemed to have been terminated by the Executive for Good Reason during the Protection Period if the Executive otherwise terminates his or her employment for Good Reason not during the Protection Period and the circumstances or event that constitutes Good Reason (a) occurs at the request of a third party that has theretofore taken steps reasonably calculated to effect a Change in Control; or (b) otherwise arose in anticipation of a Change in Control. 3. In the event of a termination of employment described in this Section VIII, the Executive shall be entitled to all payments and benefits to which the Executive would have been entitled had such termination occurred during a Protection Period, except that the Executive shall not be entitled to receive any payments or benefits under this agreement, and the Company shall have no obligation to pay any payments or benefit hereunder, as a result of the termination of the Executive's employment, unless and until the Change in Control Date occurs within 90 days after termination of the Executive's employment and, in the reasonable judgment of the Company, the Executive is entitled to payment of benefits hereunder by reason of the applicability of either Section VIII.1 or VIII. 2. Notwithstanding any provision of this agreement to the contrary, for purposes of this Section VIII only, the burden of proving that the requirements of Section VIII.1 or VIII.2 have been met shall be on the Executive, and the standard of proof to be met by the Executive shall be clear and convincing evidence.