Common use of Breach by Executive Clause in Contracts

Breach by Executive. In the event that Executive materially breaches this Agreement, Company may terminate this Agreement, at the option of Company, (i) effective thirty (30) days after Company gives written notice of such termination to Executive, or (ii) effective upon payment of thirty (30) days' pay in lieu of notice; provided, however, that the Company shall pay to Executive, on the date of such termination, all cash and non-cash compensation then accrued under this Agreement to the date of such termination. A termination under this Section 10(a) shall be deemed a termination for Cause (as hereinafter defined). A material breach of this Agreement by Executive, shall be deemed to have occurred upon the happening of any of the following events (for "Cause"), to-wit: Executive's conviction of any felony offense during the term of this Agreement; or Executive's breach of any of Executive's material obligations hereunder, including, without limitation, Executive's obligations under Sections 11 and 12 hereof; or Executive's refusal to abide by or comply with the reasonable and lawful directives of the Board of the Directors of the Company that are consistent with the duties of similarly-situated senior executives or are otherwise required under this Agreement; or Executive's dishonesty, fraud, or willful misconduct with respect to the business or affairs of the Company; or intentional damage to any material property of the Company. In each such event listed in (ii) through (v) above, the Company shall give the Executive notice thereof which shall specify in reasonable detail the circumstances constituting Cause, and there shall be no Cause with respect to any such circumstances if cured by the Executive within thirty (30) days after such notice. In the event Company elects to terminate Executive pursuant to this Section 10, Company shall give written notice to Executive specifically stating each fact and reason, which is the basis for such termination. Following such termination, Company shall have no further obligation to Executive under this Agreement except for accrued and unpaid cash and non-cash compensation payments then due and owing to Executive.

Breach by Executive. a. Executive covenants and agrees that if she violates or breaches any of the terms and conditions of this Agreement, she will pay liquidated damages to the Company in an amount equal to the value of the Severance Pay and Benefits that the Company has provided to her pursuant to Section 3(a), (b) and (c) less One Hundred Dollars ($100), which Executive may retain. The Company further shall be relieved of its obligation to make any Severance Payments and Benefits to Executive provided for under Section 3(a), (b), and (c) that had not yet been paid. All provisions of this Agreement shall remain in full force and effect. In addition, in the event that Executive materially breaches this Agreement by asserting any charge, complaint, lawsuit, or other claim in violation of Section 6(a), Executive agrees to pay the Company all costs incurred by the Company or any other Company Releasee, including attorneys’ fees and expenses related to the defense of any such charge, complaint, lawsuit or other claim asserted by or on behalf of Executive. The requirement to pay the Company the value of the Severance Pay and Benefits provided to Executive less $100 and to pay all costs incurred by any Company Releasee does not apply should Executive challenge the validity of her waiver of age discrimination claims under the ADEA and/or OWBPA. However, the Company reserves its rights to restitution, recoupment or setoff should a challenge to the age discrimination waiver prove successful. b. Executive hereby covenants and agrees that in the event of her breach of any of her obligations under this Agreement, Company may terminate this including specifically, but not limited to her obligations under Section 9 herein, the Confidentiality and Non-Solicitation Agreement, at and Sections 10, 11, 12 and 13 of the option of CompanyEmployment Agreement (collectively “Business Disturbance Provisions”), (i) effective thirty (30) days after Company gives written notice of such termination to Executive, or (ii) effective upon payment of thirty (30) days' pay in lieu of notice; provided, however, the damage that the Company shall pay would sustain would be immediate, substantial and irreparable, for which there is no adequate remedy at law. To protect the Company from such an occurrence, the Company, in addition to Executiveany other rights and remedies available to it hereunder, on the date of such termination, all cash and non-cash compensation then accrued under this Agreement to the date of such termination. A termination under this Section 10(a) shall be deemed a termination for Cause (as hereinafter defined). A material breach of this Agreement by Executiveat law or otherwise, shall be deemed entitled to have occurred upon an ex parte injunction to be issued by any court of competent jurisdiction, enjoining and restraining Executive from violating or continuing to violate any provision of this Agreement; and Executive hereby consents to the happening issuance of such injunction without the obligation of the Company to post any bond. In the event of a breach of any of the following events (for "Cause"), to-wit: Executive's conviction of any felony offense during the term of this Agreement; or Executive's breach of any of Executive's material obligations hereunder, including, without limitation, Executive's obligations under Sections 11 and 12 hereof; or Executive's refusal to abide by or comply with the reasonable and lawful directives of the Board of the Directors of the Company that are consistent with the duties of similarly-situated senior executives or are otherwise required under this Agreement; or Executive's dishonesty, fraud, or willful misconduct with respect to the business or affairs of the Company; or intentional damage to any material property of the Company. In each such event listed in (ii) through (v) aboveBusiness Disturbance Provisions, the Company shall give be entitled to recover from Executive all gross profits earned in connection with such activity by the business entity or person on whose behalf Executive notice thereof which shall specify conducted such activity in reasonable detail the circumstances constituting Causeviolation of any Business Disturbance Provisions, and there any other damages that the court deems just and proper. c. Nothing herein contained shall be no Cause with respect construed to prevent or limit the Company from invoking any such circumstances if cured by remedy as provided herein or as may otherwise be available to the Executive within thirty (30) days after such notice. In the event Company elects to terminate Executive pursuant to this Section 10, Company shall give written notice to Executive specifically stating each fact and reason, which is the basis for such termination. Following such termination, Company shall have no further obligation to Executive under this Agreement except for accrued and unpaid cash and non-cash compensation payments then due and owing to ExecutiveCompany.

Breach by Executive. (a) In the event that Executive willfully and materially breaches this Agreement, Company may terminate this Agreement, at the option of Company, (i) effective thirty (30) days after Company gives written notice of such termination to Executive, or (ii) effective upon payment of thirty (30) days' pay in lieu of notice; provided, however, that the Company shall pay to Executive, on the date of such termination, all cash and non-cash compensation then accrued under this Agreement to the date of such termination. A termination under this Section 10(a. (b) shall be deemed a termination for Cause (as hereinafter defined). A material breach of this Agreement by Executive, in either case that is materially detrimental to Company as determined in good faith by the Board of Directors of the Company and supported by a formal resolution duly voted upon and adopted by the Board of Directors, shall be deemed to have occurred upon the happening of any of the following events (for "Cause"), and the continuation thereof for a period of thirty (30) days after notice of such breach from the Company is received by Executive, to-wit: : (i) Executive's wanton or willful misconduct in the performance or discharge of any of Executive's duties, functions and responsibilities hereunder; or (ii) Executive's conviction of any felony offense during the term of this Agreement that adversely affects his ability to perform and discharge his duties under this Agreement; or or (iii) Executive's breach of any of Executive's material obligations hereunder, including, without limitation, Executive's obligations under Sections 11 and 12 hereof; or Executive's refusal to abide by or comply with the reasonable and lawful directives of the Board of the Directors of the Company that are consistent with the duties of similarly-situated senior executives or are otherwise required under this Agreement; or Executive's dishonesty, fraud, or willful misconduct with respect to the business or affairs of the Company; or intentional damage to any material property of the Company. In each such event listed in (ii) through (v) above, the Company shall give the Executive notice thereof which shall specify in reasonable detail the circumstances constituting Cause, and there shall be no Cause with respect to any such circumstances if cured by the Executive within thirty (30) days after such notice. In the event Company elects to terminate Executive pursuant to this Section 10, Company shall give written notice to Executive specifically stating each fact and reason, which is the basis for such termination. Following such termination, Company shall have no further obligation to Executive under this Agreement except for accrued and unpaid cash and non-cash compensation payments then due and owing to Executive.

Breach by Executive. In the event that Executive materially breaches this Agreement, Company may terminate this Agreement, at the option of Company, (i) effective thirty (30) days after Company gives written notice of such termination to Executive, or (ii) effective upon payment of thirty (30) days' pay in lieu of notice; provided, however, that the Company shall pay to Executive, on the date of such termination, all cash and non-cash compensation then accrued under this Agreement to the date of such termination. A termination under this Section 10(a) shall be deemed a termination for Cause (as hereinafter defined). A material breach of this Agreement by Executive, shall be deemed to have occurred upon the happening of any of the following events (for "Cause"), to-wit: Executive's conviction of any felony offense during the term of this Agreement; or Executive's breach of any of Executive's material ’s obligations hereunder, including, without limitation, Executive's obligations under Sections 11 and 12 hereof; or Executive's refusal to abide by or comply with the reasonable and lawful directives of the Board of the Directors of the Company that are consistent with the duties of similarly-situated senior executives or are otherwise required under this Agreement; or Executive's dishonesty, fraud, or willful misconduct with respect to the business or affairs of the Company; or intentional damage to any material property of the Company. In each such event listed in (ii) through (v) above, the Company shall give the Executive notice thereof which shall specify in reasonable detail the circumstances constituting Cause, and there shall be no Cause with respect to any such circumstances if cured by the Executive within thirty (30) days after such notice. In the event Company elects to terminate Executive pursuant to this Section 10, Company shall give written notice to Executive specifically stating each fact and reason, which is the basis for such termination. Following such termination, Company shall have no further obligation to Executive under this Agreement except are contingent on Executive’s performance of the Executive’s obligations under this Agreement. Any breach by Executive of the terms of this Agreement, including but not limited to the terms of Paragraphs 8 and 9, will result in the immediate cessation of any payments set forth in Paragraph 2 and the immediate cancellation of all Executive’s outstanding equity awards, including any unvested equity with respect to which Executive has satisfied the retirement vesting criteria under the terms of the original equity grant. The Company will also be entitled to all its other remedies allowed in law or equity, including but not limited to the return of any payments that it made to Executive under this Agreement and the return to Company of any Page 7 of 11 proceeds Executive received from stock options exercised or restricted stock sold after February 1, 2016, to the extent permitted under federal, state and local law. 11. Executive Availability. Executive agrees to make himself reasonably available to Company to respond to requests by Company for accrued information pertaining to or relating to Company and unpaid cash its affiliates, subsidiaries, agents, officers, directors or employees which may be within the knowledge of Executive to the extent that such cooperation does not interfere with Executive’s ability to perform his or her current job, in which case Executive and nonCompany would mutually agree upon the timing and extent of Executive’s availability. However, Executive agrees to cooperate fully with Company in connection with any and all existing or future litigation, charges, or investigations brought by or against Company or any of its past or present affiliates, agents, officers, directors or employees, whether administrative, civil or criminal in nature; but Executive is not required to disclose Executive's participation in matters subject to the Paragraph 15 (Non-cash compensation payments then due Interference and owing Right to Participate in Agency Proceedings). In conjunction with Executive’s commitments under this paragraph, Company will reimburse Executive for reasonable out-of-pocket expenses incurred as a result of such cooperation. The amount of expenses reimbursable by Company under this paragraph in any one calendar year shall not affect the amount reimbursable in any other calendar year, and the reimbursement of an eligible expense under this paragraph shall be made within sixty (60) days after Executive’s written request for reimbursement accompanied with such evidence of expenses incurred as Company may reasonably require, but in any event no later than December 31 of the year after the year in which the expense was incurred. This paragraph shall expire on Executive’s death and shall not be subject to liquidation or exchange for another benefit.

Breach by Executive. In (a) Subject to the event remainder of this Section 7(a), Executive agrees that if Executive materially breaches Section 5 of this AgreementAgreement at any time, or if Executive’s employment with the Company may terminate this Agreementis terminated prior to April 5, at the option of Company2013, (i) effective thirty (30) days after by the Company gives written notice of such termination to Executive, in a Termination For Cause or (ii) effective upon by Executive for any reason (other than on account of death or disability), Executive shall immediately repay the amount of the Retention Bonus payment, net of any withholding for taxes, made pursuant to Section 4 of this Agreement. In the event of breach of Section 5 of this Agreement or a Termination For Cause, Executive shall be obligated to repay the full amount of the Retention Bonus payment. In the event of a termination by Executive prior to April 5, 2013, Executive shall be obligated to repay a prorated portion of the Retention Bonus payment, calculated as follows: Executive will make the payment to the Company in the form of thirty cash or a certified check made payable to the Company within ten (3010) days' pay in lieu business days of notice; provideda demand by the Company for such payment. The Company shall have the right to offset any bonus payment, howeverother compensation or other funds due to Executive from the Company by any outstanding obligation of Executive to the Company. For the avoidance of doubt, if the Company terminates Executive’s employment for reasons other than a Termination For Cause, Executive shall not be obligated to repay the Retention Bonus. (b) Both parties hereto recognize that the Company shall pay to Executive, on the date obligations of such termination, all cash and non-cash compensation then accrued Executive under this Agreement are special, unique and of extraordinary character and if Executive hereafter fails to comply with the restrictions and obligations imposed upon Executive under this Agreement, the Company will not have an adequate remedy at law. It is agreed that under such circumstances, the Company, in addition to the date right to repayment of such termination. A termination under this Section 10(a) the Retention Bonus payment and any other rights that it may have, shall be deemed entitled to injunctive relief to enforce any such restrictions and obligations without the necessity of the Company to post a bond, and that in the event any actual proceedings are brought in equity to enforce any such restriction or obligation, Executive shall not raise as a defense that there is an adequate remedy at law. In the event the Company obtains an injunction, order, decree or other relief, in law or in equity, Executive shall be responsible for reimbursing the Company all costs associated with obtaining the relief, including reasonable attorneys’ fees and expenses and costs of suit. Nothing in this Agreement shall be construed to prohibit the Company from pursuing any other available remedies for any such failure or threatened failure, including without limitation termination of payments and recovery of damages from Executive. (c) Executive will provide the Company with such information as the Company may from time to time reasonably request to determine Executive’s compliance with Sections 5 and 6 of this Agreement. Executive authorizes the Company or its agents to contact Executive’s future employers and other persons or entities with which Executive has any business relationship to determine Executive’s compliance with this Agreement or to communicate the contents of Sections 5 and 6 of this Agreement to such employers and other persons or entities. Executive releases the Company from all liability for Cause (as hereinafter defined)any damage arising from any such contacts or communications. A material The foregoing is in addition to, but not in lieu of, any and all rights the Company may have at law or in equity in the event of a breach of this Agreement by Executive, shall be deemed to have occurred upon the happening of any of the following events (for "Cause"), to-wit: Executive's conviction of any felony offense during the term of this Agreement; or Executive's breach of any of Executive's material obligations hereunder, including, without limitation, Executive's obligations under Sections 11 and 12 hereof; or Executive's refusal to abide by or comply with the reasonable and lawful directives of the Board of the Directors of the Company that are consistent with the duties of similarly-situated senior executives or are otherwise required under this Agreement; or Executive's dishonesty, fraud, or willful misconduct with respect to the business or affairs of the Company; or intentional damage to any material property of the Company. In each such event listed in (ii) through (v) above, the Company shall give the Executive notice thereof which shall specify in reasonable detail the circumstances constituting Cause, and there shall be no Cause with respect to any such circumstances if cured by the Executive within thirty (30) days after such notice. In the event Company elects to terminate Executive pursuant to this Section 10, Company shall give written notice to Executive specifically stating each fact and reason, which is the basis for such termination. Following such termination, Company shall have no further obligation to Executive under this Agreement except for accrued and unpaid cash and non-cash compensation payments then due and owing to Executive.

Breach by Executive. In (a) Executive agrees that if Executive breaches Section 4 of this Agreement at any time, or if Executive's employment with the event that Executive materially breaches this AgreementCompany is terminated prior to April 4, Company may terminate this Agreement, at the option of Company2014, (i) effective thirty (30) days after by the Company gives written notice of such termination to Executive, in a Termination For Cause or (ii) effective upon payment of thirty (30) days' pay in lieu of notice; providedby Executive for any reason other than a Resignation for Good Reason, however, that Executive's entitlement to receive the Consulting Compensation or any other compensation or benefits from the Company shall pay to Executive, on immediately cease. (b) Both parties hereto recognize that the date obligations of such termination, all cash and non-cash compensation then accrued Executive under this Agreement are special, unique and of extraordinary character and if Executive hereafter fails to comply with the date of such termination. A termination restrictions and obligations imposed upon Executive under this Section 10(a) Agreement, the Company will not have an adequate remedy at law. It is agreed that under such circumstances, the Company, in addition to any other rights that it may have, shall be deemed entitled to injunctive relief to enforce any such restrictions and obligations without the necessity of the Company to post a bond, and that in the event any actual proceedings are brought in equity to enforce any such restriction or obligation, Executive shall not raise as a defense that there is an adequate remedy at law. In the event the Company obtains an injunction, order, decree or other relief, in law or in equity, Executive shall be responsible for reimbursing the Company all costs associated with obtaining the relief, including reasonable attorneys' fees and expenses and costs of suit. Nothing in this Agreement shall be construed to prohibit the Company from pursuing any other available remedies for any such failure or threatened failure, including without limitation termination of payments and recovery of damages from Executive. (c) Executive will provide the Company with such information as the Company may from time to time reasonably request to determine Executive's compliance with Section 4 of this Agreement. Executive authorizes the Company or its agents to contact Executive's future employers and other persons or entities with which Executive has any business relationship to determine Executive's compliance with this Agreement or to communicate the contents of Section 4 of this Agreement to such employers and other persons or entities. Executive releases the Company from all liability for Cause (as hereinafter defined)any damage arising from any such contacts or communications. A material The foregoing is in addition to, but not in lieu of, any and all rights the Company may have at law or in equity in the event of a breach of this Agreement by Executive, shall be deemed to have occurred upon the happening of any of the following events (for "Cause"), to-wit: Executive's conviction of any felony offense during the term of this Agreement; or Executive's breach of any of Executive's material obligations hereunder, including, without limitation, Executive's obligations under Sections 11 and 12 hereof; or Executive's refusal to abide by or comply with the reasonable and lawful directives of the Board of the Directors of the Company that are consistent with the duties of similarly-situated senior executives or are otherwise required under this Agreement; or Executive's dishonesty, fraud, or willful misconduct with respect to the business or affairs of the Company; or intentional damage to any material property of the Company. In each such event listed in (ii) through (v) above, the Company shall give the Executive notice thereof which shall specify in reasonable detail the circumstances constituting Cause, and there shall be no Cause with respect to any such circumstances if cured by the Executive within thirty (30) days after such notice. In the event Company elects to terminate Executive pursuant to this Section 10, Company shall give written notice to Executive specifically stating each fact and reason, which is the basis for such termination. Following such termination, Company shall have no further obligation to Executive under this Agreement except for accrued and unpaid cash and non-cash compensation payments then due and owing to Executive.

Breach by Executive. In The Company’s obligations to the event that Executive materially breaches after the Effective Date of this Agreement, Company may terminate this Agreement, at Agreement and the option of Company, (i) effective thirty (30) days after Company gives written notice of such termination to Executive, or (ii) effective upon payment of thirty (30) days' pay in lieu of notice; provided, however, that the Company shall pay to Executive, Supplemental Release are contingent on the date of such termination, all cash and non-cash compensation then accrued Executive fulfilling her obligations under this Agreement and the Supplemental Release. With reference to the date Sections above regarding Release of such termination. A termination under this Section 10(a) shall be deemed Claims, Executive Availability, Non-Disparagement, Return of Company Property, Confidential Information, and Non- Solicitation, as well as the Non-Competition provision set forth in the Supplemental Release, the Executive acknowledges and agrees that a termination for Cause (as hereinafter defined). A material breach of this Agreement by Executive, shall be deemed to have occurred upon the happening of any of the following events (for "Cause"), to-wit: Executive's conviction of any felony offense during the term of this Agreement; or Executive's breach of any of Executive's material obligations hereunderthese Sections by the Executive inevitably could cause substantial and irreparable damage to the Company and/or other Releasees for which money damages may not be an adequate remedy. Accordingly, includingthe Executive acknowledges and agrees that in such case the Company will be entitled to seek an injunction and/or other equitable relief, without limitationthe necessity of posting security, Executive's obligations to prevent the breach of such obligations. With reference to the Sections above regarding Executive Availability, Non-Disparagement, Return of Company Property, Confidential Information, and Non-Solicitation, as well as the Non-Competition provision set forth in the Supplemental Release, if the Company proves a breach of any of these Sections in court or arbitration, the Executive shall indemnify and hold the Company harmless from any loss, claim or damages, including without limitation all reasonable attorneys’ fees, costs and expenses incurred in enforcing its rights under the following Sections 11 of this Agreement as well as repay all compensation and 12 hereof; or Executive's refusal benefits paid as consideration under the terms of this Agreement, except to abide the extent that such reimbursement is prohibited by or comply with law and excluding vested benefits to which the reasonable Executive is otherwise entitled without regard to this Agreement. The remedy under this paragraph is not exclusive and lawful directives of the Board of the Directors shall not limit any right of the Company under applicable law including (but not limited to) a remedy under Section 10D of the Securities Exchange Act of 1934, as amended, any applicable rules or regulations promulgated by the Securities and Exchange Commission or any national securities exchange or national securities 3 NTD: The Company includes this provision in its form of separation agreement to ensure that are consistent with it has recourse in the duties of similarly-situated senior executives or are otherwise required under this Agreement; or Executive's dishonesty, fraud, or willful misconduct with respect event that it learns an employee engaged in conduct prior to the business or affairs of the Company; or intentional damage Separation Date that would have given rise to any material property of the Company. In each such event listed in (ii) through (v) above, the Company shall give the Executive notice thereof which shall specify in reasonable detail the circumstances constituting Cause, and there shall be no a for Cause with respect to any such circumstances if cured by the Executive within thirty (30) days after such notice. In the event Company elects to terminate Executive pursuant to this Section 10, Company shall give written notice to Executive specifically stating each fact and reason, which is the basis for such termination. Following such termination, Company shall have no further obligation to Executive under this Agreement except for accrued and unpaid cash and non-cash compensation payments then due and owing to Executive.