By the Company for Cause. During the Period of Employment, the Company may terminate the Executive’s employment immediately for “Cause.” For purposes of this Agreement, “Cause” means (i) the willful failure by the Executive to perform any duties hereunder, as reasonably requested by the Board as documented in writing to the Executive, (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of fraud, theft or financial dishonesty with respect to the Company or any of its affiliates, or any felony or criminal act involving moral turpitude, and (v) the material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive of the provisions of Sections 3 and 11 hereof (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company). For purposes of this definition, no act or failure to act on the part of the Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interest of the Company. Any act, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interest of the Company.
Appears in 1 contract
By the Company for Cause. During the Period of Employment, the The Company may terminate the Executive’s employment immediately hereunder for “Cause at any time upon notice to the Executive setting forth in reasonable detail the nature of such Cause.” For purposes of this Agreement. The following, “Cause” means as determined by the Board in its reasonable and good faith judgment, shall constitute Cause for termination:
(i) the The Executive’s willful failure or refusal to substantially perform (other than by the Executive to perform any duties hereunder, as reasonably requested by the Board as documented in writing to the Executive, (after the provision to the Executive reason of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20disability) days after written notice is provided by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) or gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of fraud, theft or financial dishonesty with respect duties and responsibilities to the Company or any of its affiliatesServed Affiliates;
(ii) Any act of misappropriation, or any felony or criminal act involving moral turpitude, and criminal acts or any breach of applicable fiduciary duties;
(viii) Any conduct that causes material injury, monetary or otherwise, to the Company or its Affiliates or that reflects adversely in any material respect on the Company or its Affiliates; or
(iv) Material breach by the Executive of Section 7, 8, 9 or 12 of this Agreement; it being agreed, including but however, that a breach of Section 12 hereof shall not limited constitute Cause to any material breach the extent that the Executive inadvertently discloses or uses such information and, to the extent he later becomes aware of such inadvertent disclosure or use, promptly thereafter puts the Company on notice of such disclosure or use so that the Company can attempt to cure such breach, whether or not the Company actually elects to attempt such cure; provided, however, in the event such Cause is subject to cure in the reasonable and good faith judgment of the Board, that prior to such termination the Board has given notice to the Executive (in accordance with Section 19 hereof) of the occurrence of Cause specifying in reasonable detail the nature of the Cause and, if possible, the manner in which cure can be accomplished, and such Cause is not cured by the Executive to the reasonable and good faith satisfaction of the provisions of Sections 3 and 11 hereof (after the provision to the Executive of Board within a reasonable opportunity to cure period of time as determined by the Board and set forth in such notice, which period shall be no less than ten (if cure is possible), but 10) days in the event of Cause as specified in clause (ii) above and otherwise no event more less than twenty (20) days after written days. Upon the giving of notice is provided by the Company). For purposes of this definition, no act or failure to act on the part termination of the Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interest of the Company. Any actemployment hereunder for Cause, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon the advice of counsel for neither the Company nor its Affiliates shall be conclusively presumed have any further obligation to be donethe Executive, or omitted to be done, by the Executive in good faith and in the best interest of the Companyother than for Final Compensation.
Appears in 1 contract
Samples: Employment and Non Competition Agreement (AutoTrader Group, Inc.)
By the Company for Cause. During the Period of Employment, the The Company may terminate the Executive’s employment and this Agreement for Cause only effective after (i) the Company has delivered a written notice to the Executive stating that, in the reasonable opinion of the Board, the Executive may be terminated for Cause, specifying the reasons therefore in reasonable detail and (ii) if the failure or action is one that can be cured, the Executive does not cure the matter giving rise to the Cause determination within 30 days after receiving such written notice. Such termination shall be effective immediately for “Cause.” For purposes upon receipt of this Agreement, such notice if clause (ii) above does not apply and on the 31st day following receipt of such written notice if clause (ii) above does apply and such failure or action has not been cured within the 30 day period. “Cause” means the Executive’s: (iA) failure to substantially perform his duties under this Agreement, except as a result of a Disability, after receipt of written notice from the willful Company; provided, that as long as the Executive demonstrates substantial efforts to resume substantial performance of his duties prior to the expiration of the 30-day cure period, such 30-day cure period shall be extended for an additional 15 days; (B) failure to comply with the Company’s written policies and procedures after receipt of written notice from the Company; (C) violation of the Company’s code of ethics; (D) engagement in illegal or grossly negligent acts that have a material and an adverse effect on the Company; (E) misrepresentation or dishonesty intended to result, or that results, in a benefit to the Executive at the expense of the Company or that has had or the Board reasonably determines is likely to have a material and adverse effect on the Company; (F) a material breach of Section 7 of this Agreement; (G) breach of any fiduciary duty owed by the Executive to perform the Company; (H) breach of the terms of any duties hereunder, as reasonably requested by the Board as documented non-solicitation or confidentiality clauses contained in writing to any agreements with the Executive, ’s former employers; (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20I) days after written notice is provided by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of fraud, theft or financial dishonesty with respect to the Company or any of its affiliates, or indictment for any felony or criminal act for any crime involving moral turpitude, and ; or (vJ) the material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive violation of the provisions of Sections 3 and 11 hereof (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company). For purposes of this definition, no act securities laws or failure to act on the part of the Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interest of the Company. Any act, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon the advice of counsel for regulations governing the Company shall be conclusively presumed to be done, or omitted to be done, by (including the Executive in good faith and in the best interest of the CompanyXxxxxxxx-Xxxxx Act).
Appears in 1 contract
By the Company for Cause. During the Period of EmploymentThe Company may, the Company may for Cause, terminate the Executive’s 's employment immediately for “Cause.” hereunder at any time by written notice to Executive. For purposes of this Agreement, “the term "Cause” means " shall mean Executive's (i) engaging in fraud against the Company or misappropriation of funds of the Company, (ii) disregard or failure to follow specific and reasonable directives of the Board, (iii) willful failure by the Executive to perform any his duties hereunderas Senior Vice President, as reasonably requested by Scientific Affairs of the Board as documented Company, (iv) willful misconduct resulting in writing material injury to the ExecutiveCompany, (after v) violation of the provision terms of the Confidential Information and Intellectual Property Agreement between Executive and NexMed (U.S.A.), Inc., a wholly-owned subsidiary of the Company, dated October 4, 2000 (the "Intellectual Property Agreement") attached hereto as Exhibit "A", (vi) conviction of, or Executive's plea of guilty or no contest to, a felony or any crime involving as a material element fraud or dishonesty, or (vii) material breach (not covered by clauses (i) through (vi)) of any of the other provisions of this Agreement; provided, that, in the case of subclauses (ii), (iii) or (vii), Cause shall not exist if the act or omission deemed to the Executive of a reasonable opportunity to cure constitute Cause is cured (if cure is possible), but in no event more than twenty curable) by Executive within thirty (2030) days after written notice is provided thereof to Executive by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of fraud, theft or financial dishonesty with respect to the Company or any of its affiliates, or any felony or criminal act involving moral turpitude, and (v) the material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive of the provisions of Sections 3 and 11 hereof (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company). For purposes of this definitionthe foregoing, no act act, or failure to act act, on the Executive's part of the Executive shall be considered “"willful” " unless it is done, or omitted to be done, by the Executive other than in bad faith or good faith, and without reasonable belief that the Executive’s his action or omission was in furtherance of the best interest interests of the Company. Any actIn the event of the termination of Executive's employment under this Section 6(a) for Cause, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon Employment Term shall end on the advice day of counsel for such termination and the Company shall be conclusively presumed pay to be doneExecutive, or omitted no later than ten (10) days after the last day of Executive's employment, in one lump sum, the sum of (i) any accrued but unpaid Base Salary, including salary in respect of any accrued and accumulated vacation, due to be doneExecutive at the date of such termination, by (ii) any earned and unpaid Bonus due to Executive at the date of such termination for the calendar year ending immediately prior to the date of such termination, and (iii) any amounts owing, but not yet paid, pursuant to Section 5 hereof. Except as specifically set forth in Section 8 hereof, the Company shall have no further obligations to Executive in good faith and in the best interest of the Companyunder this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Nexmed Inc)
By the Company for Cause. During The Company shall have the Period right to terminate this Agreement and to discharge the Executive for Cause (as defined below), at any time during the Term. For the purposes of Employmentthis Agreement, the Company may shall have “Cause” to terminate the Executive’s employment immediately for “Cause.” For purposes of this Agreement, “Cause” means hereunder upon:
(i) failure to materially perform and discharge the willful failure duties and responsibilities of Executive under this Agreement after receiving written notice and allowing Executive ten (10) business days to create a plan to cure such failure(s), such plan being reasonably acceptable to the CEO, and a further thirty (30) days to cure such failure(s), if so curable, provided, however, that after one such notice has been given to Executive and the thirty (30) day cure period has lapsed, the Company is no longer required to provide time to cure subsequent failures of the same or substantially similar type having occurred within twelve (12) months of the first instance under this provision, or
(ii) any breach by Executive of the material provisions of this Agreement after receiving written notice and allowing Executive ten (10) business days to create a plan to cure such breach(es), such plan being reasonably acceptable to the CEO, and a further thirty (30) days to cure such breaches(es), if so curable, provided, however, that after one such notice has been given to Executive and the thirty (30) day cure period has lapsed, the Company is no longer required to provide time to cure subsequent breaches of the same or substantially similar type having occurred within twelve (12) months of the first instance under this provision; or
(iii) felony conviction involving the personal dishonesty or moral turpitude of Executive; or a determination by the CEO or Board, after consideration of all available information, that Executive has willfully and knowingly violated Company policies or procedures involving discrimination, harassment, or work place violence or any other activities that would be reasonably likely to subject the Company to criminal or material civil liabilities; or
(iv) engagement in illegal drug use or abuse of alcohol or prescription drugs that, in the good faith opinion and sole discretion of the CEO, prevents Executive from performing his duties, or
(v) any misappropriation, embezzlement or conversion of the Company’s opportunities or property by the Executive to perform any duties hereunderwhich the CEO or Board reasonably believes was done intentionally by Executive; or
(vi) willful misconduct, as reasonably requested recklessness or gross negligence by the Executive in respect of the duties or obligations of the Executive under this Agreement and/or the Confidentiality, Non-Solicitation or Non-Competition Agreement which the CEO or Board as documented in writing reasonably believes has had or will have a material impact on Company. Any termination for Cause pursuant to the Executive, (after the provision this Section shall be given to the Executive in writing and shall set forth in detail all acts or omissions upon which the Company is relying to terminate the Executive for Cause; provided that no termination for Cause can occur unless and until a notice of a reasonable opportunity termination is delivered to cure (if cure is possible), but the Executive stating that in no event more than twenty (20) days after written notice is provided by the opinion of the Company) where , Executive was guilty of the failure to so perform can reasonably be expected to adversely affect the Company conduct set forth above in a manner that is not insignificantclauses (i), (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties), (iv) the commission by the Executive of any intentional act of fraud), theft or financial dishonesty with respect to the Company or any of its affiliates, or any felony or criminal act involving moral turpitude, and (v) the material breach by the Executive and/or (vi) of this AgreementCause definition and specifying the conduct of Executive at issue. If an Executive is terminated for Cause, including but not limited to any material breach by the Executive of the provisions of Sections 3 and 11 hereof (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company). For purposes of this definition, no act or failure to act on the part of the Executive shall only be considered “willful” unless it is done, or omitted entitled to be done, by receive his accrued and unpaid Base Salary and other benefits pursuant to Section 3(c) through the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interest of the Company. Any act, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon the advice of counsel for termination date and the Company shall be conclusively presumed to be done, or omitted to be done, by have no further obligations under this Agreement from and after the Executive in good faith and in the best interest date of the Companytermination.
Appears in 1 contract
By the Company for Cause. During the Period of Employment, the Company may terminate the Executive’s employment immediately for “Cause.” For purposes of this Agreement, “Cause” means (i) the willful failure by the Executive to perform any his duties hereunder, as reasonably requested by the Board as documented in writing to the Executive, (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificantinsignificant (provided, however, that failure by the Company to achieve any targeted or anticipated level of performance shall not, by itself, constitute failure by the Executive to perform his duties), (ii) the willful failure by the Executive to observe material Company policies and/or material policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of fraud, theft or financial dishonesty with respect to the Company or any of its affiliates, or any felony or criminal act involving moral turpitude, and (v) the material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive of the provisions of Sections 3 and Section 11 hereof (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company). For purposes of this definition, no act or failure to act on the part of the Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interest of the Company. Any act, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interest of the Company.
Appears in 1 contract
By the Company for Cause. During the Period of Employment, the Company may terminate the Executive’s employment immediately for “Cause.” For purposes of this Agreement, “Cause” means (i) the willful failure by the Executive to perform any duties hereunder, as reasonably requested by the Board as documented in writing to the Executive, (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of material fraud, theft or financial dishonesty with respect to the Company or any of its affiliatesaffiliates or with respect to any filings with the Securities and Exchange Commission or with respect to tax filings, or any felony or criminal act involving moral turpitude, and (v) the material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive of the provisions of Sections 3 and 11 hereof Agreement (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company). For purposes of this definition, no act or failure to act on the part of the Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interest of the Company. Any act, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interest of the Company.
Appears in 1 contract
By the Company for Cause. During the Period of EmploymentThe Company may, the Company may for Cause, terminate the Executive’s 's employment immediately for “Cause.” hereunder at any time by written notice to Executive. For purposes of this Agreement, “the term "Cause” means " shall mean Executive's (i) engaging in fraud against the Company or misappropriation of funds of the Company, (ii) disregard or failure to follow specific and reasonable directives of the Board, (iii) willful failure by the Executive to perform any her duties hereunderas President and Chief Executive Officer of the Company, as reasonably requested by the Board as documented (iv) willful misconduct resulting in writing material injury to the ExecutiveCompany, (after v) violation of the provision terms of the Confidential Information and Intellectual Property Agreement between Executive and NexMed (U.S.A.), Inc., a wholly-owned subsidiary of the Company, dated October 4, 2000 (the "Intellectual Property Agreement") attached hereto as Appendix "B", (vi) conviction of, or Executive's plea of guilty or no contest to, a felony or any crime involving as a material element fraud or dishonesty, or (vii) material breach (not covered by clauses (i) through (vi) of this paragraph) of any of the other provisions of this Agreement; provided, that, in the case of subclauses (ii), (iii) or (vii), Cause shall not exist if the act or omission deemed to the Executive of a reasonable opportunity to cure constitute Cause is cured (if cure is possible), but in no event more than twenty curable) by Executive within thirty (2030) days after written notice is provided thereof to Executive by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of fraud, theft or financial dishonesty with respect to the Company or any of its affiliates, or any felony or criminal act involving moral turpitude, and (v) the material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive of the provisions of Sections 3 and 11 hereof (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company). For purposes of this definitionthe foregoing, no act act, or failure to act act, on the Executive's part of the Executive shall be considered “"willful” " unless it is done, or omitted to be done, by the Executive other than in bad faith or good faith, and without reasonable belief that the Executive’s her action or omission was in furtherance of the best interest interests of the Company. Any actIn the event of the termination of Executive's employment under this Section 6(a) for Cause, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon Employment Term shall end on the advice day of counsel for such termination and the Company shall be conclusively presumed pay to be doneExecutive, or omitted no later than the payroll cycle following Executive’s termination, in one lump sum: (i) any accrued but unpaid Base Salary, less applicable deductions, including salary in respect of any accrued and accumulated vacation due to be doneExecutive at the date of such termination; and (ii) any amounts owing, by but not yet paid, pursuant to Section 5 hereof. Except as specifically set forth in Section 9 hereof, the Company shall have no further obligations to Executive in good faith and in the best interest of the Companyunder this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Nexmed Inc)
By the Company for Cause. During the Period of Employment, the The Company may terminate the Executive’s employment immediately hereunder for “Cause at any time upon notice to the Executive setting forth in reasonable detail the nature of such Cause.” For purposes of this Agreement. The following, “Cause” means as determined by the Board in its reasonable and good faith judgment, shall constitute Cause for termination:
(i) the The Executive’s willful failure or refusal to substantially perform (other than by the Executive to perform any duties hereunder, as reasonably requested by the Board as documented in writing to the Executive, (after the provision to the Executive reason of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20disability) days after written notice is provided by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) or gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of fraud, theft or financial dishonesty with respect duties and responsibilities to the Company or any of its affiliatesServed Affiliates;
(ii) Any act of misappropriation, or any felony or criminal act involving moral turpitude, and criminal acts or any breach of applicable fiduciary duties;
(viii) Any conduct that causes material injury, monetary or otherwise, to the Company or its Affiliates or that reflects adversely in any material respect on the Company or its Affiliates; or
(iv) Material breach by the Executive of Section 7, 8. 9 or 12 of this Agreement: it being agreed, including but however, that a breach of Section 12 hereof shall not limited constitute Cause to any material breach the extent that the Executive inadvertently discloses or uses such information and, to the extent he later becomes aware of such inadvertent disclosure or use, promptly thereafter puts the Company on notice of such disclosure or use so that the Company can attempt to cure such breach, whether or not the Company actually elects to attempt such cure; provided, however, in the event such Cause is subject to cure in the reasonable and good faith judgment of the Board, that prior to such termination the Board has given notice to the Executive (in accordance with Section 19 hereof) of the occurrence of Cause specifying in reasonable detail the nature of the Cause and, if possible, the manner in which cure can be accomplished, and such Cause is not cured by the Executive to the reasonable and good faith satisfaction of the provisions of Sections 3 and 11 hereof (after the provision to the Executive of Board within a reasonable opportunity to cure period of time as determined by the Board and set forth in such notice, which period shall be no less than ten (if cure is possible), but 10) days in the event of Cause as specified in clause (ii) above and otherwise no event more less than twenty (20) days after written days. Upon the giving of notice is provided by the Company). For purposes of this definition, no act or failure to act on the part termination of the Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interest of the Company. Any actemployment hereunder for Cause, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon the advice of counsel for neither the Company nor its Affiliates shall be conclusively presumed have any further obligation to be donethe Executive, or omitted to be done, by the Executive in good faith and in the best interest of the Companyother than for Final Compensation.
Appears in 1 contract
By the Company for Cause. During the Period of Employment, the Company may terminate the Executive’s employment immediately for “Cause.” For purposes of this Agreement, “Cause” means (i) the willful failure by the Executive to perform any his duties hereunder, as reasonably requested by the Board as documented in writing to the Executive, (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible)cure, but in no event more than twenty (20) days (if cure is possible), after written notice is provided by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificantinsignificant (provided, however, that failure by the Company to achieve any targeted or anticipated level of performance shall not, by itself, constitute failure by the Executive to perform his duties), (ii) the willful failure by the Executive to observe material Company policies and/or material policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible)cure, but in no event more than twenty (20) days (if cure is possible), after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of fraud, theft or financial dishonesty with respect to the Company or any of its affiliates, or any felony or criminal act involving moral turpitude, and (v) the material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive of the provisions of Sections 3 3, 8, 11 and 11 17 hereof (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible)cure, but in no event more than twenty (20) days (if cure is possible), after written notice is provided by the Company). For purposes of this definition, no act or failure to act on the part of the Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interest of the Company. Any act, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interest of the Company.
Appears in 1 contract
By the Company for Cause. During The Company shall have the Period right to terminate this Agreement and to discharge the Executive for Cause (as defined below), at any time during the Term. For the purposes of Employmentthis Agreement, the Company may shall have “Cause” to terminate the Executive’s employment immediately for “Cause.” For purposes of this Agreement, “Cause” means hereunder upon:
(i) failure to materially perform and discharge the willful failure duties and responsibilities of Executive under this Agreement after receiving written notice and allowing Executive ten (10) business days to create a plan to cure such failure(s), such plan being reasonably acceptable to the Board of Directors, and a further thirty (30) days to cure such failure(s), if so curable, provided, however, that after one such notice has been given to Executive and the thirty (30) day cure period has lapsed, the Company is no longer required to provide time to cure subsequent failures of the same or substantially similar type having occurred within twelve (12) months of the first instance under this provision, or
(ii) any breach by Executive of the material provisions of this Agreement after receiving written notice and allowing Executive ten (10) business days to create a plan to cure such breach(es), such plan being reasonably acceptable to the Board of Directors, and a further thirty (30) days to cure such breaches(es), if so curable, provided, however, that after one such notice has been given to Executive and the thirty (30) day cure period has lapsed, the Company is no longer required to provide time to cure subsequent breaches of the same or substantially similar type having occurred within twelve (12) months of the first instance under this provision; or
(iii) felony conviction involving the personal dishonesty or moral turpitude of Executive; or a determination by the Board, after consideration of all available information, that Executive has willfully and knowingly violated Company policies or procedures involving discrimination, harassment, or work place violence or any other activities that would be reasonably likely to subject the Company to criminal or material civil liabilities; or
(iv) engagement in illegal drug use or abuse of alcohol or prescription drugs that, in the good faith opinion and sole discretion of the Board, prevents Executive from performing his duties, or
(v) any misappropriation, embezzlement or conversion of the Company’s opportunities or property by the Executive to perform any duties hereunder, as reasonably requested by which the Board as documented in writing to the reasonably believes was done intentionally by Executive; or
(vi) willful misconduct, (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) recklessness or gross negligence or willful misconduct by the Executive in respect of the performance duties or obligations of his duties, (iv) the commission by the Executive of any intentional act of fraudunder this Agreement and/or the Confidentiality, theft Non-Solicitation or financial dishonesty with respect Non-Competition Agreement which the Board reasonably believes has had or will have a material impact on Company. Any termination for Cause pursuant to the Company or any of its affiliates, or any felony or criminal act involving moral turpitude, and (v) the material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive of the provisions of Sections 3 and 11 hereof (after the provision Section shall be given to the Executive of a reasonable opportunity in writing and shall set forth in detail all acts or omissions upon which the Company is relying to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company). For purposes of this definition, no act or failure to act on the part of terminate the Executive shall be considered “willful” for Cause; provided that no termination for Cause can occur unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interest and until a copy of the Company. Any act, or failure to act, based upon direction given in a resolution duly adopted by the affirmative vote of the Board (excluding the Executive, if the Executive is a member of the Board) is delivered to the Executive stating that in the opinion of the Board the Executive was guilty of the conduct set forth above in clauses (i), (ii), (iii), (iv), (v) and/or (vi) of this Cause definition and specifying the conduct of Executive at issue. The meeting of the Board referenced in the immediately preceding sentence may be held by telephonic or based upon other means and may be held on an expedited basis without any amount of advance notice required for regular Board meetings. However, prior to or during such meeting of the advice of counsel Board, Executive shall be given an opportunity to be heard by the Board concerning any dispute Executive may have regarding whether Cause exists. If an Executive is terminated for Cause, the Executive shall only be entitled to receive his accrued and unpaid Base Salary and other benefits pursuant to Section 3(c) through the termination date and the Company shall be conclusively presumed to be done, or omitted to be done, by have no further obligations under this Agreement from and after the Executive in good faith and in the best interest date of the Companytermination.
Appears in 1 contract
By the Company for Cause. During The Company shall have the Period right to terminate this Agreement and to discharge the Executive for Cause (as defined below), at any time during the Term. For the purposes of Employmentthis Agreement, the Company may shall have “Cause” to terminate the Executive’s employment immediately for “Cause.” For purposes hereunder upon:
(i) failure to materially perform and discharge the duties and responsibilities of Executive under this Agreement after receiving written notice and allowing Executive ten (10) business days to create a plan to cure such failure(s), such plan being acceptable to the CEO and subject to discussion with the Board of Directors, and a further thirty (30) days to cure such failure(s), if so curable, provided, however, that after one such notice has been given to Executive and the thirty (30) day cure period has lapsed, the Company is no longer required to provide time to cure subsequent failures of the same or substantially similar type having occurred within twelve (12) months of the first instance under this provision, or
(ii) any breach by Executive of the material provisions of this Agreement, “Cause” means (i) the willful failure by the Executive to perform any duties hereunder, as reasonably requested by the Board as documented in writing to the Executive, (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), ; or
(iii) felony conviction involving the personal dishonesty or moral turpitude of Executive; or a determination by the CEO and subject to discussion with the Board, after consideration of all available information, that Executive has willfully and knowingly violated Company policies or procedures involving discrimination, harassment, or work place violence or any other activities that would potential subject the Company to criminal or civil liabilities; or
(iv) engagement in illegal drug use or abuse of alcohol or prescription drugs that, in the good faith opinion and sole discretion of the Board and subject to discussion with the Board, prevents Executive from performing his/her duties, or
(v) any misappropriation, embezzlement or conversion of the Company’s opportunities or property by the Executive; or
(vi) willful misconduct, recklessness or gross negligence or willful misconduct by the Executive in respect of the performance duties or obligations of his duties, (iv) the commission by the Executive of any intentional act of fraudunder this Agreement and/or the Confidentiality, theft Non-Solicitation or financial dishonesty with respect Non-Competition Agreement. Any termination for Cause pursuant to the Company or any of its affiliates, or any felony or criminal act involving moral turpitude, and (v) the material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive of the provisions of Sections 3 and 11 hereof (after the provision Section shall be given to the Executive of a reasonable opportunity in writing and shall set forth in detail all acts or omissions upon which the Company is relying to cure (if cure terminate the Executive for Cause. If an Executive is possible)terminated for Cause, but in no event more than twenty (20) days after written notice is provided by the Company). For purposes of this definition, no act or failure to act on the part of the Executive shall only be considered “willful” unless it is doneentitled to receive his/her accrued and unpaid Salary, or omitted bonus and other benefits pursuant to be done, by Section 3(c) through the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interest of the Company. Any act, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon the advice of counsel for termination date and the Company shall be conclusively presumed to be done, or omitted to be done, by have no further obligations under this Agreement from and after the Executive in good faith and in the best interest date of the Companytermination.
Appears in 1 contract
By the Company for Cause. During At the Period election of Employmentthe Company, the Company may terminate for Cause, provided that prior to a termination of the Executive’s employment immediately for “Cause.” pursuant to subsection (iii), below, the Executive shall have thirty (30) days to cure in all material respects such Cause event(s) following the Executive’s receipt of written notice by the Company, which notice shall specifically identify the Cause upon which the termination is based and after the Executive has been given such notice. For the purposes of this AgreementSection 4.1, “Cause” means (i) the willful failure by the Executive to perform any duties hereunderExecutive’s conviction of, as reasonably requested by the Board as documented in writing to the Executiveor guilty plea to, (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificantfelony, (ii) the willful failure by Executive’s commission of any crime involving fraud or material dishonesty in connection with the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided Executive’s employment by the Company), or (iii) gross negligence or the Executive’s willful misconduct by the Executive in the performance of and repeated failure to substantially perform his duties, (iv) the commission by the Executive of any intentional act of fraud, theft or financial dishonesty with respect duties to the Company or any of its affiliates, or any felony or criminal act involving moral turpitude, and (v) the material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive of the provisions of Sections 3 and 11 hereof (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days each case after written notice is provided to Executive and the failure to cure within thirty (30) days thereafter (unless such act or omission, by the Companyits nature, may not be remedied). For purposes of this definition, no No act or failure to act on the part of the Executive shall be considered deemed “willful” for the purposes of this Agreement unless it is done, or omitted failed to be done, by the Executive intentionally and in bad faith or without reasonable belief that faith. Any termination for Cause shall be effected by a resolution of the majority of the members of the Board of Directors. Prior to terminating the Executive’s action or omission was employment for Cause, the Board of Directors shall deliver to the Executive, within ten (10) days after the occurrence of the act(s), omission(s), event(s) and/or circumstance(s) purportedly constituting Cause hereunder, a written notice setting forth in sufficient detail the act(s), omission(s), event(s) and/or circumstance(s) the Board of Directors believe in good faith constitute Cause to terminate the Executive’s employment. In the event the Board of Directors delivers to the Executive the notice described in the best interest preceding sentence, the Executive shall be afforded an opportunity to meet with the Board of Directors with counsel of Executive’s choosing, upon reasonable notice under the Company. Any actcircumstances, or failure to actand explain and defend any act(s), based upon direction given in a resolution duly adopted omission(s), event(s) and/or circumstances alleged by the Board or based upon of Directors in the advice of counsel written notice delivered to the Executive to constitute grounds for the Company shall be conclusively presumed a termination for Cause. If Executive has, and utilizes, such opportunity to be doneheard, the Board of Directors shall promptly reaffirm that grounds for a termination for Cause exist or omitted reinstate Executive to be done, by the Executive in good faith and in the best interest of the Companyhis position hereunder.
Appears in 1 contract
By the Company for Cause. During the Period of Employment, the The Company may terminate the Executive’s employment immediately hereunder for “Cause.” For purposes Cause at any time upon delivery of this Agreementwritten notice to the Executive. The following, “Cause” means as determined in the Company’s reasonable discretion, shall constitute Cause for termination:
(i) The Executive’s failure to perform the willful failure Executive’s duties and responsibilities to the Company or any of its Affiliates that are consistent with Executive’s title and authorities;
(ii) The Executive’s material breach of any of the provisions of this Agreement or any other written agreement between the Executive and the Company or any of its Affiliates, resulting in material harm to the Company or any of its Affiliates;
(iii) The Executive’s material breach of any fiduciary duty that the Executive has to the Company or any of its Affiliates;
(iv) The Executive’s gross negligence, intentional misconduct or unethical or improper behavior by the Executive to perform any duties hereunder, as reasonably requested by the Board as documented resulting in writing material harm to the Executivebusiness, (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates interests or reputation of the Company generally or any of its Affiliates;
(v) The Executive’s intentional or willful failure to comply with applicable PACE, Medicare or Medicaid rules or regulations;
(vi) The Executive’s failure to executives comply with the Company’s Code of the Company and/or its affiliates Conduct or Corporate Compliance Program;
(after the provision to the Executive vii) The Executive’s commission of a reasonable opportunity to cure felony or any other crime involving moral turpitude; or
(if cure is possible), but in no event more than twenty (20viii) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance The Executive’s commission of his duties, (iv) the commission by the Executive of any intentional act of conduct involving fraud, theft embezzlement, sexual harassment, material misappropriation of property or financial dishonesty other substantial misconduct with respect to the Company or any of its affiliatesAffiliates. Any termination of the Executive’s employment for bases set forth in clauses (i) - (iii) and (vi) shall not constitute a termination for Cause unless the Company shall have provided written notice to the Executive no later than fifteen (15) days after the Board first obtained actual knowledge of the Executive’s act or omission constituting Cause, setting forth in reasonable detail such acts or any felony or criminal act involving moral turpitudeomissions, and (v) the material breach by the Executive shall have failed to cure (to the extent capable of cure) such acts or omissions within fifteen (15) days following receipt of written notice. In the event of a termination of the Executive’s employment hereunder for Cause, the Company shall have no further obligation or liability to the Executive under this Agreement, including but not limited other than for any Final Compensation (excluding the Prior Year Bonus) due to any material breach by the Executive of the provisions of Sections 3 and 11 hereof (after the provision Executive. Other than business expenses described in Section 5(a)(iii), Final Compensation shall be paid to the Executive of a reasonable opportunity to cure at the time prescribed by applicable law and in all events within thirty (if cure is possible), but in no event more than twenty (2030) days after written notice is provided by following the Company). For purposes date of this definition, no act or failure to act on the part termination of the Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interest of the Company. Any act, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interest of the Companyemployment.
Appears in 1 contract
By the Company for Cause. During the Period of EmploymentThe Company may, the Company may for Cause, terminate the Executive’s 's employment immediately for “Cause.” hereunder at any time by written notice to Executive. For purposes of this Agreement, “the term "Cause” means " shall mean Executive's (i) engaging in fraud against the Company or misappropriation of funds of the Company, (ii) disregard or failure to follow specific and reasonable directives of the Board, (iii) willful failure by the Executive to perform any his duties hereunderas Vice President, as reasonably requested by Commercial Development of the Board as documented Company, (iv) willful misconduct resulting in writing material injury to the ExecutiveCompany, (after v) violation of the provision terms of the Confidential Information and Intellectual Property Agreement between Executive and NexMed (U.S.A.), Inc., a wholly-owned subsidiary of the Company, dated October 24, 2000 (the "Intellectual Property Agreement") attached hereto as Exhibit "A", (vi) conviction of, or Executive's plea of guilty or no contest to, a felony or any crime involving as a material element fraud or dishonesty, or (vii) material breach (not covered by clauses (i) through (vi)) of any of the other provisions of this Agreement; provided, that, in the case of subclauses (ii), (iii) or (vii), Cause shall not exist if the act or omission deemed to the Executive of a reasonable opportunity to cure constitute Cause is cured (if cure is possible), but in no event more than twenty curable) by Executive within thirty (2030) days after written notice is provided thereof to Executive by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of fraud, theft or financial dishonesty with respect to the Company or any of its affiliates, or any felony or criminal act involving moral turpitude, and (v) the material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive of the provisions of Sections 3 and 11 hereof (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company). For purposes of this definitionthe foregoing, no act act, or failure to act act, on the Executive's part of the Executive shall be considered “"willful” " unless it is done, or omitted to be done, by the Executive other than in bad faith or good faith, and without reasonable belief that the Executive’s his action or omission was in furtherance of the best interest interests of the Company. Any actIn the event of the termination of Executive's employment under this Section 6(a) for Cause, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon Employment Term shall end on the advice day of counsel for such termination and the Company shall be conclusively presumed pay to be doneExecutive, or omitted no later than ten (10) days after the last day of Executive's employment, in one lump sum, the sum of (i) any accrued but unpaid Base Salary, including salary in respect of any accrued and accumulated vacation, due to be doneExecutive at the date of such termination, by (ii) any earned and unpaid Bonus due to Executive at the date of such termination for the calendar year ending immediately prior to the date of such termination, and (iii) any amounts owing, but not yet paid, pursuant to Section 5 hereof. Except as specifically set forth in Section 8 hereof, the Company shall have no further obligations to Executive in good faith and in the best interest of the Companyunder this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Nexmed Inc)
By the Company for Cause. During the Period of Employment, the The Company may terminate the Executive’s employment immediately for “Cause at any time upon notice to the Executive setting forth in reasonable detail the nature of such Cause.” For purposes of this Agreement. The following, “Cause” means as determined by the Board in its reasonable judgment, shall constitute Cause for termination:
(i) the The Executive’s willful failure to perform, or gross negligence in the performance of, the Executive’s material duties and responsibilities to the Company or any of its Affiliates that, if capable of cure, is not cured within thirty (30) days of written notice of such failure or negligence by the Company to the Executive; provided, that the Company will not have to provide more than one notice and opportunity to cure with respect to any multiple, repeated, related or substantially similar events or circumstances;
(ii) Conduct by the Executive to perform any duties hereunder, as reasonably requested by the Board as documented in writing to the Executive, (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of constitutes fraud, theft embezzlement or financial other material dishonesty with respect to the Company or any of its affiliatesAffiliates;
(iii) The Executive’s commission of, or any plea of nolo contendere to, (A) a felony or criminal act (B) other crime involving moral turpitude, and ; or
(viv) the The Executive’s material breach by the Executive of this Agreement, including but not limited to any material written policies of the Company, copies which have been provided to the Executive, or any other agreement between the Executive and the Company or any of its Affiliates or of any fiduciary duty that the Executive has to the Company or any of its Affiliates that, if capable of cure, is not cured within thirty (30) days of written notice of such breach by the Executive Company to the Executive; provided, that the Company will not have to provide more than one notice and opportunity to cure with respect to any multiple, repeated, related or substantially similar events or circumstances. Upon the giving of notice of termination of the provisions of Sections 3 and 11 hereof (after Executive’s employment hereunder for Cause, the provision Company shall have no further obligation or liability to the Executive, other than for the Final Compensation due to the Executive. Other than business expenses described in Section 5(a)(ii), the Final Compensation shall be paid to the Executive of a reasonable opportunity to cure at the time prescribed by applicable law and in all events within thirty (if cure is possible), but in no event more than twenty (2030) days after written notice is provided by following the Company). For purposes of this definition, no act or failure to act on the part of the Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interest of the Company. Any act, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interest of the CompanyTermination Date.
Appears in 1 contract
By the Company for Cause. During the Period of EmploymentThe Company may, the Company may for Cause, terminate the Executive’s 's employment immediately for “Cause.” hereunder at any time by written notice to Executive. For purposes of this Agreement, “the term "Cause” means " shall mean Executive's (i) engaging in fraud against the Company or misappropriation of funds of the Company, (ii) disregard or failure to follow specific and reasonable directives of the Board, (iii) willful failure by the Executive to perform any his duties hereunderas Vice President of Finance and Chief Financial Officer of the Company, as reasonably requested by the Board as documented (iv) willful misconduct resulting in writing material injury to the ExecutiveCompany, (after v) violation of the provision terms of the Confidential Information and Intellectual Property Agreement between Executive and NexMed (U.S.A.), Inc., a wholly-owned subsidiary of the Company, dated March 5, 2002 (the "Intellectual Property Agreement") attached hereto as Exhibit "A", (vi) conviction of, or Executive's plea of guilty or no contest to, a felony or any crime involving as a material element fraud or dishonesty, or (vii) material breach (not covered by clauses (i) through (vi) of this paragraph) of any of the other provisions of this Agreement; provided, that, in the case of subclauses (ii), (iii) or (vii), Cause shall not exist if the act or omission deemed to the Executive of a reasonable opportunity to cure constitute Cause is cured (if cure is possible), but in no event more than twenty curable) by Executive within thirty (2030) days after written notice is provided thereof to Executive by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of fraud, theft or financial dishonesty with respect to the Company or any of its affiliates, or any felony or criminal act involving moral turpitude, and (v) the material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive of the provisions of Sections 3 and 11 hereof (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company). For purposes of this definitionthe foregoing, no act act, or failure to act act, on the Executive's part of the Executive shall be considered “"willful” " unless it is done, or omitted to be done, by the Executive other than in bad faith or good faith, and without reasonable belief that the Executive’s his action or omission was in furtherance of the best interest interests of the Company. Any actIn the event of the termination of Executive's employment under this Section 6(a) for Cause, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon Employment Term shall end on the advice day of counsel for such termination and the Company shall be conclusively presumed pay to be doneExecutive, or omitted no later than the payroll cycle following Executive’s termination, in one lump sum: (i) any accrued but unpaid Base Salary, less applicable deductions, including salary in respect of any accrued and accumulated vacation due to be doneExecutive at the date of such termination; and (ii) any amounts owing, by but not yet paid, pursuant to Section 5 hereof. Except as specifically set forth in Section 8 hereof, the Company shall have no further obligations to Executive in good faith and in the best interest of the Companyunder this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Nexmed Inc)
By the Company for Cause. During the Period of Employment, the Company may terminate the Executive’s employment immediately for “Cause.” For purposes of this Agreement, “Cause” means (ia) the willful failure a material breach of this Agreement by the Executive to perform any duties hereunder, as reasonably requested by or the Board as documented in writing to gross neglect of the Executive, ’s duties hereunder (after the provision to the Executive by the Company of a reasonable opportunity written notice reasonably specifying the breach and/or performance deficiency and thirty (30) days to cure (if cure is possiblesuch breach), but in no event more than twenty (20b) days after written notice the Executive’s willful misconduct or gross negligence, which is provided by the Company) where the failure demonstrably and materially injurious to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificantmonetarily or otherwise, or (iic) the willful failure by Executive’s engaging in egregious misconduct involving serious moral turpitude to the Executive extent that the Executive’s credibility and reputation no longer conforms to observe Company policies and/or policies the standards of affiliates employees of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of employed in a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence similar level or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of fraud, theft or financial dishonesty with respect to the Company or any of its affiliates, or any felony or criminal act involving moral turpitude, and (v) the material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive of the provisions of Sections 3 and 11 hereof (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company)position. For purposes of this definition, no act or failure to act on the part of the Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interest of the Company. Any act, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interest of the Company. The foregoing notwithstanding, the Company may not terminate the Executive’s employment for Cause, and any purported termination by the Company of Executive’s employment shall be presumed other than for Cause, unless (i)a determination that Cause exists is made and approved by at least a 3/4ths majority of the Board, (ii) the Executive is given at least seven (7) days written notice of the Board meeting called to make such determination, including written notice of the particulars purporting to establish Cause and (iii) the Executive and his legal counsel are given the opportunity to address that meeting.
Appears in 1 contract
By the Company for Cause. During the Period of EmploymentThe Company may, the Company may for Cause, terminate the Executive’s 's employment immediately for “Cause.” hereunder at any time by written notice to Executive. For purposes of this Agreement, “the term "Cause” means " shall mean Executive's (i) engaging in fraud against the Company or misappropriation of funds of the Company, (ii) disregard or failure to follow specific and reasonable directives of the Board, (iii) willful failure by the Executive to perform any her duties hereunderas Vice President, as reasonably requested by Corporate Affairs of the Board as documented Company, (iv) willful misconduct resulting in writing material injury to the ExecutiveCompany, (after v) violation of the provision terms of the Confidential Information and Intellectual Property Agreement between Executive and NexMed (U.S.A.), Inc., a wholly-owned subsidiary of the Company, dated October 5, 2000 (the "Intellectual Property Agreement") attached hereto as Exhibit "A", (vi) conviction of, or Executive's plea of guilty or no contest to, a felony or any crime involving as a material element fraud or dishonesty, or (vii) material breach (not covered by clauses (i) through (vi)) of any of the other provisions of this Agreement; provided, that, in the case of subclauses (ii), (iii) or (vii), Cause shall not exist if the act or omission deemed to the Executive of a reasonable opportunity to cure constitute Cause is cured (if cure is possible), but in no event more than twenty curable) by Executive within thirty (2030) days after written notice is provided thereof to Executive by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of fraud, theft or financial dishonesty with respect to the Company or any of its affiliates, or any felony or criminal act involving moral turpitude, and (v) the material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive of the provisions of Sections 3 and 11 hereof (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company). For purposes of this definitionthe foregoing, no act act, or failure to act act, on the Executive's part of the Executive shall be considered “"willful” " unless it is done, or omitted to be done, by the Executive other than in bad faith or good faith, and without reasonable belief that the Executive’s her action or omission was in furtherance of the best interest interests of the Company. Any actIn the event of the termination of Executive's employment under this Section 6(a) for Cause, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon Employment Term shall end on the advice day of counsel for such termination and the Company shall be conclusively presumed pay to be doneExecutive, or omitted no later than ten (10) days after the last day of Executive's employment, in one lump sum, the sum of (i) any accrued but unpaid Base Salary, including salary in respect of any accrued and accumulated vacation, due to be doneExecutive at the date of such termination, by (ii) any earned and unpaid Bonus due to Executive at the date of such termination for the calendar year ending immediately prior to the date of such termination, and (iii) any amounts owing, but not yet paid, pursuant to Section 5 hereof. Except as specifically set forth in Section 8 hereof, the Company shall have no further obligations to Executive in good faith and in the best interest of the Companyunder this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Nexmed Inc)
By the Company for Cause. During the Period of EmploymentThe Company may, the Company may for Cause, terminate the Executive’s 's employment immediately for “Cause.” hereunder at any time by written notice to Executive. For purposes of this Agreement, “the term "Cause” means " shall mean Executive's (i) engaging in fraud against the Company or misappropriation of funds of the Company, (ii) disregard or failure to follow specific and reasonable directives of the Board, (iii) willful failure by the Executive to perform any his duties hereunderas Vice President and Chief Operating Officer of the Company, as reasonably requested by the Board as documented (iv) willful misconduct resulting in writing material injury to the ExecutiveCompany, (after v) violation of the provision terms of the Non-Disclosure and Inventions Agreement between Executive and NexMed (U.S.A.), Inc., a wholly-owned subsidiary of the Company, dated October 31, 2007 (the "Non-Disclosure Agreement") attached hereto as Appendix "B", (vi) conviction of, or Executive's plea of guilty or no contest to, a felony or any crime involving as a material element fraud or dishonesty, or (vii) material breach (not covered by clauses (i) through (vi) of this paragraph) of any of the other provisions of this Agreement; provided, that, in the case of subclauses (ii), (iii) or (vii), Cause shall not exist if the act or omission deemed to the Executive of a reasonable opportunity to cure constitute Cause is cured (if cure is possible), but in no event more than twenty curable) by Executive within thirty (2030) days after written notice is provided thereof to Executive by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of fraud, theft or financial dishonesty with respect to the Company or any of its affiliates, or any felony or criminal act involving moral turpitude, and (v) the material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive of the provisions of Sections 3 and 11 hereof (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company). For purposes of this definitionthe foregoing, no act act, or failure to act act, on the Executive's part of the Executive shall be considered “"willful” " unless it is done, or omitted to be done, by the Executive other than in bad faith or good faith, and without reasonable belief that the Executive’s his action or omission was in furtherance of the best interest interests of the Company. Any actIn the event of the termination of Executive's employment under this Section 6(a) for Cause, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon Employment Term shall end on the advice day of counsel for such termination and the Company shall be conclusively presumed pay to be doneExecutive, or omitted no later than the payroll cycle following Executive’s termination, in one lump sum: (i) any accrued but unpaid Base Salary, less applicable deductions, including salary in respect of any accrued and accumulated vacation due to be doneExecutive at the date of such termination; and (ii) any amounts owing, by but not yet paid, pursuant to Section 5 hereof. Except as specifically set forth in Section 9 hereof, the Company shall have no further obligations to Executive in good faith and in the best interest of the Companyunder this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Nexmed Inc)
By the Company for Cause. During The Company shall have the Period right to terminate Executive's employment under this Agreement for "Cause," which shall mean any of Employmentthe following:
(a) any act of fraud, embezzlement or any other illegal act committed knowingly or intentionally by Executive in connection with Executive's duties as an executive of the Company may terminate or any parent company, subsidiary or affiliate of the Executive’s employment immediately Company;
(b) any conviction of any felony;
(c) Executive shall be incarcerated for “Cause.” For purposes a period of at least ten (10) days or shall be indicted for a crime for which he could be sentenced to incarceration for at least a year;
(d) any breach or violation by Executive of any term or condition of this Agreement, “Cause” means which breach of violation remains uncured for thirty (i30) the willful failure by the Executive to perform any duties hereunderdays or, as reasonably requested by the Board as documented in writing to the Executiveif shorter, ten (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (2010) days after Executive's receipt of written notice of such breach or violation (provided, however, that no notice need be given and not such 10-day cure period shall apply with respect to any such breach or violation if, within the prior six months, the Company has given Executive written notice of a breach or violation of substantially the same, or substantially the same, type or nature);
(e) any breach or violation by Executive of any term or condition of the Non-Compete Agreement (as defined below);
(f) Executive shall assert or claim that the Non-Compete Agreement or any provision thereof is provided invalid or unenforceable; or
(g) any willful, intentional or grossly negligent commission by the Company) where the Executive of act or failure to so perform can act that causes or may reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates as of the Company generally applicable time of such occurrence) to executives of the Company and/or its affiliates (after the provision cause substantial economic injury to, or substantial injury to the Executive of a reasonable opportunity to cure (if cure is possible)reputation of, but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of fraud, theft or financial dishonesty with respect to the Company or any parent company, subsidiary or affiliate of its affiliatesthe Company, or any felony or criminal act involving moral turpitudeincluding, and (v) the material breach by the Executive of this Agreementwithout limitation, including but not limited to any material breach by the Executive violation of the provisions of Sections 3 and 11 hereof Foreign Corrupt Practices Act (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company). For for purposes of this definitionthe foregoing, no any act or failure to act on the part of the Executive shall be considered “"willful” unless it is " if done, or omitted to be done, by the Executive in bad faith or without a reasonable belief that the Executive’s action act or omission was in the best interest of the Company). Any actAs of the effective date of Executive's termination for Cause, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon the advice of counsel for the Company Executive shall be conclusively presumed to paid all accrued salary, any vested deferred compensation (other than pension plan or profit sharing plan benefits, which will be done, or omitted to be done, paid in accordance with the applicable plan) and any reimbursable business expenses that have been incurred by the Executive in good faith connection with his duties hereunder and in that have not been reimbursed, all through the best interest date of termination; provided, however, that Executive's entitlement to be reimbursed for any business expenses shall be dependent upon his compliance with the Company's policies and practices, including those with respect to submission of receipts, vouchers or other evidence of payment of such expenses. In addition, to the extent so provided under the terms applicable to any stock options that were granted to Executive (including, as applicable, the terms and conditions of NAC's 1993 Equity Incentive Plan) Executive shall be entitled to vesting of such stock options.
Appears in 1 contract
Samples: Executive Employment Agreement (National Auto Credit Inc /De)
By the Company for Cause. During the Period of EmploymentThe Company may, the Company may for Cause, terminate the Executive’s 's employment immediately for “Cause.” hereunder at any time by written notice to Executive. For purposes of this Agreement, “the term "Cause” means " shall mean Executive's (i) engaging in fraud against the Company or misappropriation of funds of the Company, (ii) disregard or willful failure by to follow specific and reasonable directives of the Executive Board, (iii) willful failure to perform any his duties hereunderas CEO and President of the Company and/or one of its subsidiaries, as reasonably requested by the Board as documented (iv) willful misconduct resulting in writing material injury to the ExecutiveCompany, (after v) willful violation of the provision terms of the Confidential Information and Intellectual Property Agreement between Executive and NexMed (U.S.A.), Inc., a wholly-owned subsidiary of the Company, dated October 4, 2000 (the "Intellectual Property Agreement") attached hereto as Exhibit "A", (vi) conviction of, or Executive's plea of guilty or no contest to, a felony or any crime involving as a material element fraud or dishonesty, or (vii) material breach (not covered by clauses (i) through (vi)) of any of the other provisions of this Agreement; provided, that, in the case of subclauses (ii), (iii) or (vii), Cause shall not exist if the act or omission deemed to the Executive of a reasonable opportunity to cure constitute Cause is cured (if cure is possible), but in no event more than twenty curable) by Executive within thirty (2030) days after written notice is provided thereof to Executive by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of fraud, theft or financial dishonesty with respect to the Company or any of its affiliates, or any felony or criminal act involving moral turpitude, and (v) the material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive of the provisions of Sections 3 and 11 hereof (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company). For purposes of this definitionthe foregoing, no act act, or failure to act act, on the Executive's part of the Executive shall be considered “"willful” " unless it is done, or omitted to be done, by the Executive other than in bad faith or good faith, and without reasonable belief that the Executive’s his action or omission was in furtherance of the best interest interests of the Company. Any actIn the event of the termination of Executive's employment under this Section 8(a) for Cause, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon Employment Term shall end on the advice day of counsel for such termination and the Company shall be conclusively presumed pay to be doneExecutive, or omitted no later than ten (10) days after the last day of Executive's employment, in one lump sum, the sum of (i) any accrued but unpaid Base Salary, including salary in respect of any accrued and accumulated vacation, due to be doneExecutive at the date of such termination, by (ii) any earned and unpaid Bonus due to Executive at the Executive in good faith date of such termination for the calendar year ending immediately prior to the date of such termination, and (iii) any amounts owing, but not yet paid, pursuant to Section 6(a) hereof. In addition, in the best interest event of the Companytermination of Executive's employment under this Section 8(a) for Cause, (A) the Vesting Percentage in respect of the Deferred Compensation shall be zero, with the result that the Deferred Compensation shall be forfeited, and (B) the principal and accrued interest on each Loan shall become immediately due and payable. Except as specifically set forth in Section 12 hereof, the Company shall have no further obligations to Executive under this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Nexmed Inc)
By the Company for Cause. During the Period of Employment, the The Company may terminate the Executive’s employment immediately hereunder for “Cause.” For purposes Cause at any time upon delivery of this Agreementwritten notice to the Executive. The following, “Cause” means as determined in the Company’s reasonable discretion, shall constitute Cause for termination:
(i) The Executive’s failure to perform the willful failure Executive’s duties and responsibilities to the Company or any of its Affiliates that are consistent with Executive’s title and authorities;
(ii) The Executive’s material breach of any of the provisions of this Agreement or any other written agreement between the Executive and the Company or any of its Affiliates, resulting in material harm to the Company or any of its Affiliates; or
(iii) The Executive’s material breach of any fiduciary duty that the Executive has to the Company or any of its Affiliates;
(iv) The Executive’s gross negligence, intentional misconduct or unethical or improper behavior by the Executive to perform any duties hereunder, as reasonably requested by the Board as documented resulting in writing material harm to the Executivebusiness, (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates interests or reputation of the Company generally or any of its Affiliates;
(v) The Executive’s intentional or willful failure to comply with applicable PACE, Medicare or Medicaid rules or regulations;
(vi) The Executive’s failure to executives comply with the Company’s Code of the Company and/or its affiliates Conduct or Corporate Compliance Program;
(after the provision to the Executive vii) The Executive’s commission of a reasonable opportunity to cure felony or any other crime involving moral turpitude; or
(if cure is possible), but in no event more than twenty (20viii) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance The Executive’s commission of his duties, (iv) the commission by the Executive of any intentional act of conduct involving fraud, theft embezzlement, sexual harassment, material misappropriation of property or financial dishonesty other substantial misconduct with respect to the Company or any of its affiliatesAffiliates. Any termination of the Executive’s employment for bases set forth in clauses (i) - (iii) and (vi) shall not constitute a termination for Cause unless the Company shall have provided written notice to the Executive no later than fifteen (15) days after the Board first obtained actual knowledge of the Executive’s act or omission constituting Cause, setting forth in reasonable detail such acts or any felony or criminal act involving moral turpitudeomissions, and (v) the material breach by the Executive shall have failed to cure (to the extent capable of cure) such acts or omissions within fifteen (15) days following receipt of written notice. In the event of a termination of the Executive’s employment hereunder for Cause, the Company shall have no further obligation or liability to the Executive under this Agreement, including but not limited other than for any Final Compensation (excluding the Prior Year Bonus) due to any material breach by the Executive of the provisions of Sections 3 and 11 hereof (after the provision Executive. Other than business expenses described in Section 5(a)(iii), Final Compensation shall be paid to the Executive of a reasonable opportunity to cure at the time prescribed by applicable law and in all events within thirty (if cure is possible), but in no event more than twenty (2030) days after written notice is provided by following the Company). For purposes date of this definition, no act or failure to act on the part termination of the Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interest of the Company. Any act, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interest of the Companyemployment.
Appears in 1 contract
By the Company for Cause. During the Period of Employment, the The Company may terminate the Executive’s employment immediately hereunder for “Cause at any time upon written notice to the Executive by the Board setting forth in reasonable detail the nature of such Cause.” For purposes of this Agreement, . “Cause” means shall mean the following events or conditions, as determined by the Board in its reasonable judgment: (i) the Executive’s willful failure by the Executive to perform (other than by reason of disability), or gross negligence in the performance of, his material duties and responsibilities to the Company or any duties hereunderof its Affiliates, as reasonably requested by or willful failure to follow or carry out any lawful and reasonable direction of the Board as documented in writing Board, and the continuance of such willful failure or gross negligence for a period of twenty-five (25) days after delivery of written notice to the Executive, (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, ; (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission material breach by the Executive of any intentional act provision of this Agreement or any other material agreement between the Executive and the Company or any of its Affiliates and the continuance of such material breach for a period of twenty-five (25) days after delivery of written notice to the Executive; (iii) fraud, embezzlement, theft or financial other dishonesty by the Executive with respect to the Company or any of its affiliatesAffiliates; (iv) the conviction of, or a plea of nolo contendere by, the Executive for any felony or criminal act any other crime involving dishonesty or moral turpitude, ; and (v) the any other conduct that involves a willful and material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive of the provisions of Sections 3 and 11 hereof (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company). For purposes of this definition, no act or failure to act fiduciary obligation on the part of the Executive shall be considered “willful” unless it is done, or omitted to be done, by Executive. Upon the Executive in bad faith or without reasonable belief that giving of notice of termination of the Executive’s action employment hereunder for Cause or omission was in the best interest expiration of the Company. Any acttwenty-five (25)-day cure period (without cure), or failure to actas applicable, based upon direction given in a resolution duly adopted by the Board or based upon the advice of counsel for the Company shall have no further obligation to the Executive, other than for Final Compensation (which shall be conclusively presumed paid at the same time or times as in the case of a termination by reason of death) and continued medical and dental coverage to be done, or omitted to be done, the extent required by the Executive in good faith so-called “COBRA” coverage continuation rules and in the best interest of permitted under the Company’s medical and dental policies.
Appears in 1 contract
By the Company for Cause. During the Period of Employment, the The Company may terminate the Executive’s 's employment immediately for “Cause at any time upon notice to the Executive setting forth in reasonable detail the nature of such Cause.” For purposes of this Agreement. The following, “as determined by the Board in its reasonable judgment, shall constitute "Cause” means " for termination:
(i) the The Executive's willful failure to perform, or gross negligence in the performance of, the Executive's material duties and responsibilities to the Company or any of its Affiliates that, if capable of cure, is not cured within thirty (30) days of written notice of such failure or negligence by the Company to the Executive; provided, that the Company will not have to provide more than one notice and opportunity to cure with respect to any multiple, repeated, related or substantially similar events or circumstances;
(ii) Conduct by the Executive to perform any duties hereunder, as reasonably requested by the Board as documented in writing to the Executive, (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of constitutes fraud, theft embezzlement or financial other material dishonesty with respect to the Company or any of its affiliatesAffiliates;
(iii) The Executive's commission of, or any plea of nolo contendere to, (A) a felony or criminal act (B) other crime involving moral turpitude, and ; or
(viv) the The Executive's material breach by the Executive of this Agreement, including but not limited to any material written policies of the Company, or any other agreement between the Executive and the Company or any of its Affiliates or of any fiduciary duty that the Executive has to the Company or any of its Affiliates that, if capable of cure, is not cured within thirty (30) days of written notice of such breach by the Executive Company to the Executive; provided, that the Company will not have to provide more than one notice and opportunity to cure with respect to any multiple, repeated, related or substantially similar events or circumstances. Upon the giving of notice of termination of the provisions of Sections 3 and 11 hereof Executive's employment hereunder for Cause, the Company shall have no further obligation or liability to the Executive, other than for the Final Compensation due to the Executive. Other than business expenses described in Section 5(a) (after ii), the provision Final Compensation shall be paid to the Executive of a reasonable opportunity to cure at the time prescribed by applicable law and in all events within thirty (if cure is possible), but in no event more than twenty (2030) days after written notice is provided by following the Company). For purposes of this definition, no act or failure to act on the part of the Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interest of the Company. Any act, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interest of the CompanyTermination Date.
Appears in 1 contract
By the Company for Cause. During the Period of EmploymentThe Company may, the Company may for Cause, terminate the Executive’s 's employment immediately for “Cause.” hereunder at any time by written notice to Executive. For purposes of this Agreement, “the term "Cause” means " shall mean Executive's (i) engaging in fraud against the Company or misappropriation of funds of the Company, (ii) disregard or failure to follow specific and reasonable directives of the Board, (iii) willful failure by the Executive to perform any her duties hereunderas Executive Vice President and Acting Chief Executive Officer of the Company, as reasonably requested by the Board as documented (iv) willful misconduct resulting in writing material injury to the ExecutiveCompany, (after v) violation of the provision terms of the Confidential Information and Intellectual Property Agreement between Executive and NexMed (U.S.A.), Inc., a wholly-owned subsidiary of the Company, dated October 4, 2000 (the "Intellectual Property Agreement") attached hereto as Exhibit "A", (vi) conviction of, or Executive's plea of guilty or no contest to, a felony or any crime involving as a material element fraud or dishonesty, or (vii) material breach (not covered by clauses (i) through (vi) of this paragraph) of any of the other provisions of this Agreement; provided, that, in the case of subclauses (ii), (iii) or (vii), Cause shall not exist if the act or omission deemed to the Executive of a reasonable opportunity to cure constitute Cause is cured (if cure is possible), but in no event more than twenty curable) by Executive within thirty (2030) days after written notice is provided thereof to Executive by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of fraud, theft or financial dishonesty with respect to the Company or any of its affiliates, or any felony or criminal act involving moral turpitude, and (v) the material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive of the provisions of Sections 3 and 11 hereof (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company). For purposes of this definitionthe foregoing, no act act, or failure to act act, on the Executive's part of the Executive shall be considered “"willful” " unless it is done, or omitted to be done, by the Executive other than in bad faith or good faith, and without reasonable belief that the Executive’s her action or omission was in furtherance of the best interest interests of the Company. Any actIn the event of the termination of Executive's employment under this Section 6(a) for Cause, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon Employment Term shall end on the advice day of counsel for such termination and the Company shall be conclusively presumed pay to be doneExecutive, or omitted no later than the payroll cycle following Executive’s termination, in one lump sum: (i) any accrued but unpaid Base Salary, less applicable deductions, including salary in respect of any accrued and accumulated vacation due to be doneExecutive at the date of such termination; and (ii) any amounts owing, by but not yet paid, pursuant to Section 5 hereof. Except as specifically set forth in Section 8 hereof, the Company shall have no further obligations to Executive in good faith and in the best interest of the Companyunder this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Nexmed Inc)
By the Company for Cause. During the Period of Employment, the Company may terminate the Executive’s employment immediately for “Cause.” For purposes of this Amended Agreement, “Cause” means (i) the willful failure by the Executive to perform any duties hereunder, as reasonably requested by the Board as documented in writing to the Executive, (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of material fraud, theft or financial dishonesty with respect to the Company or any of its affiliates, or any felony or criminal act involving moral turpitude, and (v) the material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive of the provisions of Sections 3 and 11 hereof Amended Agreement (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company). For purposes of this definition, no act or failure to act on the part of the Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interest of the Company. Any act, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interest of the Company.
Appears in 1 contract
By the Company for Cause. During the Period of EmploymentThe Company may, the Company may for Cause, terminate the Executive’s 's employment immediately for “Cause.” hereunder at any time by written notice to Executive. For purposes of this Agreement, “the term "Cause” means " shall mean Executive's (i) engaging in fraud against the Company or misappropriation of funds of the Company, (ii) disregard or failure to follow specific and reasonable directives of the Board, (iii) willful failure by the Executive to perform any his duties hereunderas Vice President of Finance and Chief Financial Officer of the Company, as reasonably requested by the Board as documented (iv) willful misconduct resulting in writing material injury to the ExecutiveCompany, (after v) violation of the provision terms of the Non-Disclosure and Inventions Agreement between Executive and NexMed (U.S.A.), Inc., a wholly-owned subsidiary of the Company, dated December 11, 2007 (the "Non-Disclosure Agreement") attached hereto as Appendix "B", (vi) conviction of, or Executive's plea of guilty or no contest to, a felony or any crime involving as a material element fraud or dishonesty, or (vii) material breach (not covered by clauses (i) through (vi) of this paragraph) of any of the other provisions of this Agreement; provided, that, in the case of subclauses (ii), (iii) or (vii), Cause shall not exist if the act or omission deemed to the Executive of a reasonable opportunity to cure constitute Cause is cured (if cure is possible), but in no event more than twenty curable) by Executive within thirty (2030) days after written notice is provided thereof to Executive by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of fraud, theft or financial dishonesty with respect to the Company or any of its affiliates, or any felony or criminal act involving moral turpitude, and (v) the material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive of the provisions of Sections 3 and 11 hereof (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company). For purposes of this definitionthe foregoing, no act act, or failure to act act, on the Executive's part of the Executive shall be considered “"willful” " unless it is done, or omitted to be done, by the Executive other than in bad faith or good faith, and without reasonable belief that the Executive’s his action or omission was in furtherance of the best interest interests of the Company. Any actIn the event of the termination of Executive's employment under this Section 6(a) for Cause, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon Employment Term shall end on the advice day of counsel for such termination and the Company shall be conclusively presumed pay to be doneExecutive, or omitted no later than the payroll cycle following Executive’s termination, in one lump sum: (i) any accrued but unpaid Base Salary, less applicable deductions, including salary in respect of any accrued and accumulated vacation due to be doneExecutive at the date of such termination; and (ii) any amounts owing, by but not yet paid, pursuant to Section 5 hereof. Except as specifically set forth in Section 9 hereof, the Company shall have no further obligations to Executive in good faith and in the best interest of the Companyunder this Agreement.
Appears in 1 contract
By the Company for Cause. During Notwithstanding the Period foregoing provisions of Employmentthis Section 6, in the event Executive is terminated for Cause, the Company may terminate shall have no obligations pursuant to this Agreement after the Executive’s employment immediately Date of Termination other than for “Cause.” salary accrued but unpaid through the Date of Termination and reimbursement of business expenses properly incurred but unreimbursed (to the extent reimbursable) prior to Date of Termination. For purposes of this Agreementherein, “Cause” means (iA) Executive’s embezzlement, fraud, gross negligence, gross neglect or willful misconduct in the performance of the duties required hereunder, (B) Executive’s commission of a felony, (C) Executive’s material breach of this Agreement or any other agreement with the Company or its Affiliates, or (D) Executive’s failure to follow any lawful directive of the Board or other refusal to perform his duties hereunder. Notwithstanding the foregoing, prior to any termination for Cause under clauses (A), (C) or (D) of the preceding sentence, (X) the willful Company must provide Executive with reasonable notice detailing the failure by or conduct on which the Executive termination is to perform any duties hereunder, as reasonably requested by the Board as documented in writing to the Executivebe based, (after Y) the provision to the Company must provide Executive of a reasonable opportunity to cure such failure or conduct (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possibleextent curable), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of fraud, theft or financial dishonesty with respect to the Company or any of its affiliates, or any felony or criminal act involving moral turpitude, and (vZ) after such notice and an opportunity to cure, the material breach Committee must reasonably determine that Executive has not cured such failure or conduct. Executive shall not be deemed to have been terminated for Cause unless and until Executive shall have been provided an opportunity to be heard in person by the Executive Committee (with the assistance of this Agreement, including but not limited to any material breach by the Executive of the provisions of Sections 3 and 11 hereof (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company). For purposes of this definition, no act or failure to act on the part of the Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in counsel if Executive so desires) on at least five business days’ advance notice, and the best interest Committee must approve the termination of the Company. Any act, or failure to act, based upon direction given in Executive for Cause by a resolution duly adopted by the Board or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interest of the Companytwo-thirds vote.
Appears in 1 contract
Samples: Executive Employment Agreement (Energy XXI Gulf Coast, Inc.)
By the Company for Cause. During the Period of Employment, the The Company may terminate the Executive’s employment immediately hereunder for “Cause at any time upon notice to the Executive setting forth in reasonable detail the nature of such Cause.” For purposes of this Agreement. The following, “Cause” means as determined by the Board in its judgment, shall constitute Cause for termination:
(i) the willful failure by misconduct of the Executive to perform any duties hereunder, as reasonably requested by the Board as documented in writing with regard to the ExecutiveCompany which constitutes a material breach of any of his obligations hereunder or under any other written agreement with the Company, which breach has not been cured within fifteen (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (2015) days after written notice is provided by the Company) where Board to the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, Executive;
(ii) the willful failure fraud, embezzlement, theft or other material dishonesty by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) the commission by the Executive of any intentional act of fraud, theft or financial dishonesty with respect to the Company or any of its affiliatesAffiliates;
(iii) the Executive’s material breach of his fiduciary duties as an officer or manager of the Company or any of its Affiliates, or as an officer, trustee, director or other fiduciary of any felony pension or criminal act involving moral turpitude, and (v) the material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive benefit plan of the provisions Company or its Affiliates or willful misconduct which has, or could reasonably be expected to have, a material adverse effect upon the business, interests or reputation of Sections 3 and 11 hereof the Company or any of its Affiliates, which breach or conduct has not been cured within fifteen (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (2015) days after written notice is provided by the Company)Board to the Executive;
(iv) the Employee’s indictment for, or a plea of nolo contendere to, any felony; or
(v) refusal or willful failure by the Executive to attempt in good faith to follow or carry out the reasonable written instructions of the Board, which failure does not cease within fifteen (15) days after written notice of such failure is given to the Executive by the Board. For purposes of this definitionSection 5.c, no act or failure to act on the part of the Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interest interests of the Company. Any actUpon the giving of notice of termination of the Executive’s employment hereunder for Cause, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon the advice of counsel for the Company shall be conclusively presumed have no further obligation or liability to be donethe Executive, or omitted to be done, by the Executive in good faith and in the best interest of the Companyother than for Accrued Benefits.
Appears in 1 contract
By the Company for Cause. During the Period of Employment, the The Company may terminate the Executive’s 's employment immediately hereunder for “Cause ("Cause.” For purposes of this Agreement, “Cause” means (i") the willful failure by any time upon written notice to the Executive setting forth in reasonable detail the nature of such Cause, and the Executive's failure to perform any duties hereundercure within thirty (30) days after such notice. The following, as reasonably requested determined by the Board as documented in writing to its reasonable judgment, shall constitute Cause for termination: the Executive, (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates of the Company generally applicable to executives of the Company and/or its affiliates (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) 's gross negligence or willful misconduct by the Executive in the performance of his duties, (iv) material duties and responsibilities to the Company; the commission by the Executive of any theft, embezzlement or other serious and substantial crimes or intentional act wrongful engagement in competitive activity in violation of fraud, theft Section 9 below; or financial dishonesty with respect to the Company or any of its affiliates, or any felony or criminal act involving moral turpitude, and (v) the material breach other deliberate willful action by the Executive of this Agreementthat is materially harmful to the business, including but not limited to any material breach by the Executive interests or reputation of the provisions of Sections 3 and 11 hereof (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company). For purposes of this definitionSection 5c, no act act, or failure to act on the part of the Executive act, shall be considered “"willful” " unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interest interests of the Company. Any actNotwithstanding the foregoing, or failure the Executive shall not be deemed to acthave been terminated for Cause unless and until there shall have been delivered to him a notice of termination, based upon direction given in a resolution duly adopted and such termination shall have been approved by the vote of two-thirds of the members of the Board or based upon of Directors (excluding the advice Executive) at a meeting of counsel the Board (after reasonable notice to the Executive and an opportunity for him, together with counsel, to be heard before the Board of Directors) finding that, in the good faith opinion of the Board of Directors, the above standard of termination for Cause was met in such case and that such Cause was not cured. Upon the giving of notice of termination of the Executive's employment hereunder for Cause following the determination of the Board under the preceding paragraph, the Company shall be conclusively presumed have no further obligation or liability to the Executive, other than for Base Amount earned and unpaid at the date of termination, any options that are vested which shall continue to be doneexercisable for 30 days (unless such options are terminated by vote of the Committee as provided in the Plan, or omitted to be done, by provided that the Company and the Executive agree that all of the Options that are vested as of May 1, 1999, namely options for 247,500 shares, shall not be subject to termination by vote of the Committee in good faith and its discretion under the Plan, in the best interest event that the Executive is terminated for Cause under this Section 5c), and payments or reimbursement of business expenses accrued prior to the Companydate of termination. All other options shall terminate.
Appears in 1 contract
By the Company for Cause. During the Period of Employment, the The Company may terminate the Executive’s employment immediately hereunder for “Cause.” For purposes Cause at any time upon delivery of this Agreementwritten notice to the Executive. The following, “Cause” means as determined in the Company’s reasonable discretion, shall constitute Cause for termination:
(i) The Executive’s failure to perform the willful failure Executive’s duties and responsibilities to the Company or any of its Affiliates that are consistent with Executive’s title and authorities;
(ii) The Executive’s material breach of any of the provisions of this Agreement or any other written agreement between the Executive and the Company or any of its Affiliates, resulting in material harm to the Company or any of its Affiliates; or
(iii) The Executive’s material breach of any fiduciary duty that the Executive has to the Company or any of its Affiliates;
(iv) The Executive’s gross negligence, intentional misconduct or unethical or improper behavior by the Executive to perform any duties hereunder, as reasonably requested by the Board as documented resulting in writing material harm to the Executivebusiness, (after the provision to the Executive of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, (ii) the willful failure by the Executive to observe Company policies and/or policies of affiliates interests or reputation of the Company generally or any of its Affiliates;
(v) The Executive’s intentional or willful failure to comply with applicable PACE, Medicare or Medicaid rules or regulations;
(vi) The Executive’s failure to executives comply with the Company’s Code of the Company and/or its affiliates Conduct or Corporate Compliance Program; involving moral turpitude; or
(after the provision to the Executive vii) The Executive’s commission of a reasonable opportunity to cure felony or any other crime
(if cure is possible), but in no event more than twenty (20viii) days after written notice is provided by the Company), (iii) gross negligence or willful misconduct by the Executive in the performance The Executive’s commission of his duties, (iv) the commission by the Executive of any intentional act of conduct involving fraud, theft embezzlement, sexual harassment, material misappropriation of property or financial dishonesty other substantial misconduct with respect to the Company or any of its affiliatesAffiliates. Any termination of the Executive’s employment for bases set forth in clauses (i) - (iii) and (vi) shall not constitute a termination for Cause unless the Company shall have provided written notice to the Executive no later than fifteen (15) days after the Board first obtained actual knowledge of the Executive’s act or omission constituting Cause, setting forth in reasonable detail such acts or any felony or criminal act involving moral turpitudeomissions, and (v) the material breach by the Executive shall have failed to cure (to the extent capable of cure) such acts or omissions within fifteen (15) days following receipt of written notice. In the event of a termination of the Executive’s employment hereunder for Cause, the Company shall have no further obligation or liability to the Executive under this Agreement, including but not limited other than for any Final Compensation (excluding the Prior Year Bonus) due to any material breach by the Executive of the provisions of Sections 3 and 11 hereof (after the provision Executive. Other than business expenses described in Section 5(a)(iii), Final Compensation shall be paid to the Executive of a reasonable opportunity to cure at the time prescribed by applicable law and in all events within thirty (if cure is possible), but in no event more than twenty (2030) days after written notice is provided by following the Company). For purposes date of this definition, no act or failure to act on the part termination of the Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interest of the Company. Any act, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interest of the Companyemployment.
Appears in 1 contract
By the Company for Cause. During the Period of EmploymentThe Company may, the Company may by written notice to Executive, terminate the Employment Period and Executive’s employment immediately hereunder for “Cause.” For purposes of this AgreementAs used herein, “Cause” means shall mean (i) the willful failure by the Executive to perform any duties hereunder, as reasonably requested by the Board as documented in writing to the Executive, (after the provision to the conviction of Executive of a reasonable opportunity to cure felony (other than violation of a motor vehicle or moving violation law) or conviction of a misdemeanor if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company) where the failure to so perform can reasonably be expected to adversely affect the Company in a manner that is not insignificant, such misdemeanor involves moral turpitude; or (ii) Executive’s voluntary engagement in conduct constituting larceny, embezzlement, conversion or any other act involving the misappropriation of any Group Company funds in the course of his employment; or (iii) Executive’s willful failure by refusal to carry out specific directions of the Executive to observe Company policies and/or policies Board, the Board of affiliates Directors of the Company generally applicable to executives or the Board of Directors of any other Group Company of which Executive is an Officer, which directions shall be consistent with the Company and/or its affiliates provisions hereof; or (after the provision to the Executive iv) Executive’s committing any act of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided by the Company), (iii) gross negligence or willful intentional misconduct by the Executive in the performance or non-performance of his duties, (iv) the commission by the Executive of any intentional act of fraud, theft duties hereunder; or financial dishonesty with respect to the Company or any of its affiliates, or any felony or criminal act involving moral turpitude, and (v) the material breach by the Executive of this Agreement, including but not limited to any material breach by the Executive of the provisions any material provision of Sections 3 and 11 hereof this Agreement (after the provision other than for reasons related only to the Executive business performance of a reasonable opportunity to cure (if cure is possible), but in no event more than twenty (20) days after written notice is provided the Company or business results achieved by the CompanyExecutive). For purposes of this definition, Section 4(c); no act or failure to act on the Executive’s part of the Executive shall be considered “willful” unless it is to be reason for termination for Cause if done, or omitted to be done, by the Executive in bad good faith or without and with the reasonable belief that the Executive’s action or omission was in the best interest interests of the Company, and no event described in clauses (iii), (iv) or (v) shall constitute Cause unless Executive has failed to cure such event within 15 days after receiving written notice thereof from the Company. Any actUpon the termination of Executive’s employment for Cause, or failure to act, based upon direction given in a resolution duly adopted by the Board or based upon the advice of counsel for the Company shall pay to Executive the Accrued Rights, and Executive shall not be conclusively presumed entitled to be done, or omitted to be done, by the Executive in good faith and in the best interest of the Companyany severance payments.
Appears in 1 contract
