Earlier Termination. (a) If the Executive shall fail, because of illness or incapacity, to render the services contemplated by this Agreement for six successive months or for shorter periods aggregating nine months in any calendar year, the directors of the Company may determine, on the basis of medical evidence satisfactory to the Company, in the Company's sole discretion, that the Executive has become disabled. If within thirty (30) days after the date on which written notice of such determination is given to the Executive, the Executive shall not have returned to the full-time performance of his duties hereunder, this Agreement and the employment of the Executive hereunder shall be deemed terminated in accordance with Section 8 hereof. (b) Except as otherwise provided in this Agreement, if the Executive shall die during the term of this Agreement, this Agreement shall be deemed to have been terminated as of the date of death of the Executive. (c) The Company, by notice to the Executive, may terminate this Agreement for proper cause. As used herein, "proper cause" shall mean (i) the willful and continued failure by the Executive to substantially perform his duties with the Company (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or any such actual or anticipated failure resulting from termination by the Executive for Good Reason (as defined below)) after a written demand for substantial performance is delivered to the Executive by the directors of the Company, which demand specifically identifies the manner in which the directors believe that the Executive has not substantially performed his duties, or (ii) the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise. For purposes of this subsection 6(c), no act, or failure to act, on the Executive's part shall be deemed "willful" unless done, or omitted to be done, by the Executive otherwise than in good faith and in a manner that the Executive reasonably believed was in or not opposed to the best interests of the Company and its shareholders. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for proper cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of all of the directors of the Company at a meeting of the directors called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with counsel of his choosing, to be heard before the directors not less than 10 business days after the giving of such notice), finding that in the good faith opinion of the directors, the Executive conducted himself as set forth above in clause (i) or (ii) of the first sentence of this subsection 6(c) and specifying the particulars of such conduct in detail. (d) The Executive may terminate this Agreement for "Good Reason" if any of the following events occurs:
Appears in 4 contracts
Samples: Employment Agreement (Wellsford Real Properties Inc), Employment Agreement (Wellsford Real Properties Inc), Employment Agreement (Wellsford Real Properties Inc)
Earlier Termination. (a) If the Executive shall die during the term of this Agreement, this Agreement shall be deemed to have been terminated as of the date of the Executive's death, and the Company shall pay to the legal representative of the Executive's estate all monies due hereunder prorated through the last day of the month during which the Executive shall have died, as well as a bonus equal to the product of (x) the base salary payable to the Executive pursuant to subsection 3(a) from January 1 of the year in which the Executive shall have died through the last day of the month during which the Executive shall have died and (y) the greater of (i) 1/2 or (ii) the percentage of the Executive's base salary for the immediately preceding fiscal year that was paid to the Executive as a bonus for the immediately preceding fiscal year, expressed as a fraction (the greater of clauses (i) and (ii) being herein referred to as the "Deemed Bonus Fraction").
(b) If the Executive shall fail, because of illness or incapacity, to render the services contemplated by this Agreement for six successive consecutive months or for shorter periods aggregating nine months in any calendar year, the directors of the Company may determine, on the basis of medical evidence satisfactory to the Company, determine (as set forth in the Company's sole discretion, subsection (d) below) that the Executive has become disabled. If within thirty (30) days after the date on which written notice of such determination is given to the Executive, the Executive shall not have returned to the continuing full-time performance of his duties hereunder, this Agreement and the employment of the Executive hereunder shall be deemed terminated in accordance with Section 8 hereof.
(b) Except as otherwise provided in this Agreement, if and the Company shall pay to the Executive all monies due hereunder prorated through the last day of the month during which such termination shall die during occur, as well as a bonus equal to the term product of this Agreement, (x) the base salary payable to the Executive pursuant to subsection 3(a) from January 1 of the year in which this Agreement shall be deemed to have been is terminated as through the last day of the date of death of month during which this Agreement is terminated and (y) the ExecutiveDeemed Bonus Fraction.
(c) The Company, by written notice to the ExecutiveExecutive specifying the reason therefor, may terminate this Agreement for proper causeCause as determined pursuant to subsection (d) below. As used herein, "proper causeCause" shall mean (i) the willful and continued failure be defined as actions by the Executive to substantially perform his duties with the Company (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or any such actual or anticipated failure resulting from termination by the Executive for Good Reason (as defined below)) after a written demand for substantial performance which constitute malfeasance. Malfeasance includes, but is delivered to the Executive by the directors of the Company, which demand specifically identifies the manner in which the directors believe that the Executive has not substantially performed his duties, or (ii) the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise. For purposes of this subsection 6(c), no act, or failure to act, on the Executive's part shall be deemed "willful" unless done, or omitted to be done, by the Executive otherwise than in good faith and in a manner that the Executive reasonably believed was in or not opposed to the best interests of the Company and its shareholders. Notwithstanding the foregoinglimited to, the Executive shall not be deemed to have been terminated for proper cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of all of the directors of the Company at a meeting of the directors called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executiveengaging in fraud, together with counsel of his choosing, to be heard before the directors not less than 10 business days after the giving of such notice), finding that in the good faith opinion of the directors, the Executive conducted himself as set forth above in clause (i) dishonest conduct or (ii) of the first sentence of this subsection 6(c) and specifying the particulars of such conduct in detailother criminal conduct.
(d) The Executive may terminate this Agreement for "Good Reason" if any of the following events occurs:
Appears in 4 contracts
Samples: Employment Agreement (Wellsford Real Properties Inc), Employment Agreement (Wellsford Real Properties Inc), Employment Agreement (Wellsford Real Properties Inc)
Earlier Termination. (a) If the Executive shall die during the term of this Agreement, this Agreement shall be deemed to have been terminated as of the date of the Executive's death, and the Company shall pay to the legal representative of the Executive's estate all Base Compensation due hereunder prorated through the last day of the month during which the Executive shall have died.
(b) If the Executive shall fail, because of illness or incapacity, to render the services contemplated by this Agreement for six successive consecutive months or for shorter periods aggregating nine months in any calendar yearduring the term of this Agreement, the directors of the Company may determine, on the basis of medical evidence satisfactory to the Company, determine (as set forth in the Company's sole discretion, subsection (d) below) that the Executive has become disabled. If within thirty (30) days after the date on which written notice of such determination is given to the Executive, the Executive shall not have returned to the continuing full-time performance of his duties hereunder, this Agreement and the employment of the Executive hereunder shall be deemed terminated in accordance with Section 8 hereof.
(b) Except as otherwise provided in this Agreement, if and the Company shall pay to the Executive shall die during all Base Compensation due hereunder prorated through the term of this Agreement, this Agreement shall be deemed to have been terminated as last day of the date of death of the Executivemonth during which such termination shall occur.
(c) The Company, by written notice to the ExecutiveExecutive specifying the reason therefor, may terminate this Agreement for proper causeCause as determined pursuant to subsection (d) below. As used herein, "proper causeCause" shall mean (i) the willful and continued failure be defined as actions or inactions by the Executive which constitute gross negligence, gross misconduct, willful misconduct, dishonest conduct, malfeasance, misfeasance or nonfeasance, criminal conduct, fraud, a material breach of any duties, responsibilities or obligations hereunder, or habitual abuse of drugs or alcohol or conviction by a court, arbitration panel or other tribunal of competent jurisdiction, found liable for or confessed to substantially perform his duties with the Company (other than any such failure resulting from the Executive's incapacity due to physical or mental illness act of larceny, embezzlement, conversion or any such actual or anticipated failure resulting from termination by act involving the Executive for Good Reason (as defined below)) after a written demand for substantial performance is delivered to misappropriation of funds in the Executive by course of his employment hereunder. In the directors of the Company, which demand specifically identifies the manner in which the directors believe event that the Executive has not substantially performed his duties, or (ii) the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise. For purposes of this subsection 6(c), no act, or failure to act, on the Executive's part shall be deemed "willful" unless done, or omitted to be done, by the Executive otherwise than in good faith and in a manner that the Executive reasonably believed was in or not opposed to the best interests of the Company and its shareholders. Notwithstanding the foregoingterminated for Cause, the Executive shall not be deemed to have been terminated for proper cause unless and until there shall have been delivered to paid the Executive a copy Executive's full Base Compensation through the date of a resolution duly adopted by termination at the affirmative vote rate in effect at the time notice of not less than three-quarters (3/4) of all of the directors of the Company at a meeting of the directors called and held for such purpose (after reasonable notice termination is given to the Executive and an opportunity for the Executive, together with counsel of his choosing, Company shall thereafter have no further obligations to be heard before the directors not less than 10 business days after the giving of such notice), finding that in the good faith opinion of the directors, the Executive conducted himself as set forth above in clause (i) or (ii) of the first sentence of under this subsection 6(c) and specifying the particulars of such conduct in detailAgreement.
(d) The Executive may terminate this Agreement for "Good Reason" if any of the following events occurs:
Appears in 2 contracts
Samples: Employment Agreement (New America Network Inc), Employment Agreement (New America Network Inc)
Earlier Termination. (a) If a. Employee's employment hereunder shall automatically be terminated upon the Executive shall fail, because death of illness the Employee or incapacity, to render Employee's voluntarily leaving the services contemplated by this Agreement for six successive months or for shorter periods aggregating nine months in any calendar year, the directors employ of the Company and, in addition, may determinebe terminated, on at the basis sole discretion of medical evidence satisfactory to the Company, as follows:
i. upon thirty (30) days' prior written notice by the Company, in the Companyevent of the Employee's sole discretion, that the Executive has become disableddisability as set forth in Section 8(b) below; or
ii. If within upon thirty (30) days after the date on which days' prior written notice by the Company, in the event that the Company terminates the Employee's employment hereunder for cause as set forth in Section 8(c) below, and the failure of the Employee to cure the condition constituting such determination cause if the same is curable within such thirty (30) day period after such notice has been given by the Company.
b. Employee shall be deemed disabled hereunder, if in the opinion of the Board of Directors of the Company, as confirmed by competent medical advice in writing, he shall become physically or mentally unable to perform his duties for the ExecutiveCompany hereunder and such incapacity shall have continued for any period of ninety (90) days in any consecutive twelve (12) months.
c. For purposes hereof, "cause" shall mean, and be limited to, the Executive shall not have returned to the full-time following: (a) Employee's willful malfeasance or gross negligence in performance of his duties hereunder, this Agreement and the employment as an employee of the Executive hereunder shall be deemed terminated in accordance with Section 8 hereof.
Company; (b) Except as otherwise provided in this Agreementthe material breach of any covenant made by Employee hereunder, if under the Executive shall die during the term of this Agreement, this Agreement shall be deemed to have been terminated as terms of the date of death Merger Agreement or under the terms of the Executive.
Non Competition Agreement between and among the Employee, the Company and KDTI; or (c) The Company, a dishonest act or omission by notice to the Executive, may terminate this Agreement for proper cause. As used herein, "proper cause" shall mean Employee which either (i) results in his personal enrichment at the willful and continued failure by the Executive to substantially perform his duties with the Company (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or any such actual or anticipated failure resulting from termination by the Executive for Good Reason (as defined below)) after a written demand for substantial performance is delivered to the Executive by the directors expense of the Company, which demand specifically identifies the manner in which the directors believe that the Executive has not substantially performed his duties, or (ii) the willful engaging by the Executive results in conduct which is demonstrably and materially injurious his conviction of, or plea of nolo contendere to, a felony or other serious crime, not including a motor vehicle offense; (d) a breach of Employee's fiduciary duties to the Company, monetarily or otherwise. For purposes of this subsection 6(c), no act, or failure to act, on the Executive's part shall be deemed "willful" unless done, or omitted to be done, by the Executive otherwise than in good faith and in a manner that the Executive reasonably believed was in or not opposed to the best interests of the Company and its shareholders. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for proper cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of all of the directors of the Company at a meeting of the directors called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with counsel of his choosing, to be heard before the directors not less than 10 business days after the giving of such notice), finding that in the good faith opinion of the directors, the Executive conducted himself as set forth above in clause (i) ; or (iie) a conviction of the first sentence of this subsection 6(c) and specifying the particulars of such conduct in detailany federal or state securities' laws.
(d) The Executive may terminate this Agreement for "Good Reason" if any of the following events occurs:
Appears in 2 contracts
Samples: Employment Agreement (Katz Digital Technologies Inc), Employment Agreement (Katz Digital Technologies Inc)
Earlier Termination. Your employment hereunder shall terminate prior to the expiration of the Initial Term (or any renewal term, in the event of renewal) on the following terms and conditions:
(a) If the Executive This Agreement shall fail, because of illness or incapacity, to render the services contemplated by this Agreement for six successive months or for shorter periods aggregating nine months in any calendar year, the directors of the Company may determine, terminate automatically on the basis date of medical evidence satisfactory to the Company, in the Company's sole discretion, that the Executive has become disabled. If within thirty (30) days after the date on which written notice of such determination is given to the Executive, the Executive shall not have returned to the full-time performance of his duties hereunder, this Agreement and the employment of the Executive hereunder shall be deemed terminated in accordance with Section 8 hereofyour death.
(b) Except as otherwise provided in this Agreement, This Agreement shall be terminated if the Executive shall die you are unable to perform your duties hereunder for 90 days (whether or not continuous) during the term any period of this Agreement, this Agreement 360 consecutive days by reason of physical or mental disability. The disability shall be deemed to have occurred on the 90th day of your absence or lack of adequate performance.
(c) This Agreement shall terminate immediately upon the Company's sending you written notice terminating your employment hereunder for "Just Cause," which shall mean (i) an act or acts of fraud or dishonesty by you which results in the personal enrichment of you or another person or entity at the expense of the Company; (ii) your admission, confession or conviction of (X) any felony (other than third degree vehicular infractions), or (Y) of any other crime or offense involving misuse or misappropriation of money or other property; (iii) your continued material breach of any obligations under this Agreement 30 days after the Company has given you notice thereof in reasonable detail, if such breach has not been terminated cured by you during such period; or (iv) your gross negligence or willful misconduct with respect to your duties or gross misfeasance of office.
(d) This Agreement shall terminate immediately upon the Company's sending you written notice terminating your employment hereunder (without Just Cause therefor having been given by you) for any reason or for no reason. In the event of any termination of this Agreement pursuant to this Section 9(d), or in the event the Company gives you notice pursuant to Section 1(b) of its intention not to renew this Agreement, the Company's sole obligation to you shall be (i) to pay you one year's worth of Base Salary in effect as of the date of death termination of your employment hereunder, (ii) to pay you the amount, if any, you would have been entitled to receive pursuant to Section 2(b) of this Agreement with respect to the fiscal year of the Executive.
Company in which your employment was terminated and (ciii) to continue for one year the benefits provided in the second sentence and in the last sentence of Section 4 of this Agreement. The Company, by notice amounts payable pursuant to the Executive, may terminate this Agreement for proper cause. As used herein, "proper cause" shall mean clauses (i) the willful and continued failure by the Executive to substantially perform his duties with the Company (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or any such actual or anticipated failure resulting from termination by the Executive for Good Reason (as defined below)) after a written demand for substantial performance is delivered to the Executive by the directors of the Company, which demand specifically identifies the manner in which the directors believe that the Executive has not substantially performed his duties, or (ii) the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise. For purposes of this subsection 6(c), no act, or failure to act, on the Executive's part shall be deemed "willful" unless done, or omitted to be done, by the Executive otherwise than in good faith and in a manner that the Executive reasonably believed was in or not opposed to the best interests of the Company and its shareholders. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for proper cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of all of the directors of the Company at a meeting of the directors called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with counsel of his choosing, to be heard before the directors not less than 10 business days after the giving of such notice), finding that in the good faith opinion of the directors, the Executive conducted himself as set forth above in clause (i) or (ii) of the first immediately preceding sentence shall be paid to you as and when such amounts would have been due had your employment continued. In addition, in the event of the termination of this subsection 6(cAgreement pursuant to this Section 9(d), or in the event the Company gives you notice pursuant to Section 1(b) and specifying of its intention not to renew this Agreement, you shall be credited with one year's additional vesting for all stock options then held by you. Compensation under this Section 9(d) shall not be payable in the particulars event you receive compensation under Section 4 of such conduct in detailthe Change of Control Agreement.
(de) The Executive may terminate Except as specifically set forth in Section 9(d) above, upon termination or non-renewal of this Agreement for "Good Reason" if any of Agreement, the following events occurs:Company's obligations hereunder shall cease.
Appears in 1 contract
Earlier Termination. Your employment hereunder shall terminate prior to the expiration of the Term on the following terms and conditions:
(a) If This Agreement shall terminate automatically on the Executive date of your death.
(b) This Agreement shall failbe terminated if you are unable to perform your duties hereunder for 120 days (whether or not continuous) during any period of 180 consecutive days by reason of physical or mental disability. The disability shall be deemed to have occurred on the 120th day of your absence or lack of adequate performance.
(c) This Agreement shall terminate immediately upon the Company's sending you written notice terminating your employment hereunder for "Just Cause," which shall mean only one or more of the following: (i) an act or acts of fraud or dishonesty by you which results in the personal enrichment of you or another person or entity at the expense of the Company; (ii) your admission, because confession or conviction of illness (X) any felony (other than third-degree vehicular infractions), or incapacity, to render the services contemplated by (Y) any other crime or offense involving misuse or misappropriation of money or other property; (iii) your continued material breach of any obligations or representations under this Agreement 30 days after the Company has given you notice thereof in reasonable detail, if such breach has not been cured by you during such period; and (iv) your gross negligence or willful misconduct with respect to your duties or gross misfeasance of office.
(d) This Agreement shall terminate immediately upon the Company's sending you written notice terminating your employment hereunder for six successive months any reason or for shorter periods aggregating nine months no reason (other than as set forth in any calendar yearSection 9 (c)).
(e) Upon a termination due to an event described in Section 9(a), the directors of the Company may determine9(b) or 9(c) hereof, on the basis of medical evidence satisfactory to the Company, in the Company's sole discretionobligation to you shall be to pay you the earned but unpaid portion of your Base Salary in effect at the time up to the date of termination (which shall be paid as and when such amounts would have been due had your employment continued) and, except in the case of a termination pursuant to Section 9(c), a pro rata portion of the Incentive Bonus which would have been due to you for the year during which the termination occurs. Upon a termination by the Company due to an event described in Section 9(d) hereof, the Company's sole obligation to you shall be to pay you your Base Salary in effect at the time and the Incentive Bonus that would have been due to you for the Executive has become disabled. If remainder of Term (which shall be paid as and when such amounts would have been due had your employment continued); provided, however, such amount will be paid only if you first execute and deliver to the Company a general release agreement (in form acceptable to the Company), with such release agreement providing for, among other things, the full release of the Company, its owners, subsidiaries, directors, managers, officers, employees, executives, representatives, agents, predecessors, successors and assigns.
(f) This Agreement shall terminate immediately upon your sending the Company written notice terminating your employment hereunder for "Good Reason," which shall mean the occurrence of any one or more of only the following events: (a) a material decrease in your responsibilities or authority which is not cured within thirty (30) days after the date on which written notice of such determination is given thereof from you to the ExecutiveCompany; or (b) a decrease in your Base Salary. Upon any such termination, the Executive Company's obligation to you shall not be to pay you your Base Salary in effect at the time and the Incentive Bonus that would have returned been due to you for the remainder of the Term (which shall be paid as and when such amounts would have been due had your employment continued); provided, however, such amount will be paid only if you first execute and deliver to the full-time performance of his duties hereunderCompany a general release agreement (in form acceptable to the Company), this Agreement and with such release agreement providing for, among other things, the employment full release of the Executive hereunder shall be deemed terminated in accordance with Section 8 hereofCompany, its owners, subsidiaries, directors, managers, officers, employees, executives, representatives, agents, predecessors, successors and assigns.
(bg) This Agreement shall terminate thirty (30) days following receipt by the Company from you of written notice terminating your employment hereunder without Good Reason, in which event you shall have no further liabilities or obligations hereunder, other than pursuant to Sections 6, 7, 8 and 10(b) hereof and the Company's sole obligation to you shall be to pay you the earned but unpaid portion of your Base Salary in effect at the time up to the date of termination (which shall be paid as and when such amounts would have been due had your employment continued).
(h) Except as otherwise provided specifically set forth in this AgreementSections 9(e) and 9(f) hereof, if the Executive shall die during the term upon termination of this Agreement, this Agreement the Company's obligations hereunder shall be deemed to have been terminated as of the date of death of the Executivecease.
(ci) The Company, by notice Notwithstanding anything herein to the Executivecontrary, may terminate this Agreement you shall have no obligation to mitigate damages, and except for proper cause. As used hereinthe offset provided in Section 6(a), "proper cause" the Company shall mean (i) the willful and continued failure have no right to offset any sums earned by you or on your behalf against any amounts payable by the Executive to substantially perform his duties with the Company (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or any such actual or anticipated failure resulting from termination by the Executive for Good Reason (as defined below)) after a written demand for substantial performance is delivered to the Executive by the directors of the Company, which demand specifically identifies the manner in which the directors believe that the Executive has not substantially performed his duties, or (ii) the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise. For purposes of under this subsection 6(c), no act, or failure to act, on the Executive's part shall be deemed "willful" unless done, or omitted to be done, by the Executive otherwise than in good faith and in a manner that the Executive reasonably believed was in or not opposed to the best interests of the Company and its shareholders. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for proper cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of all of the directors of the Company at a meeting of the directors called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with counsel of his choosing, to be heard before the directors not less than 10 business days after the giving of such notice), finding that in the good faith opinion of the directors, the Executive conducted himself as set forth above in clause (i) or (ii) of the first sentence of this subsection 6(c) and specifying the particulars of such conduct in detailAgreement.
(d) The Executive may terminate this Agreement for "Good Reason" if any of the following events occurs:
Appears in 1 contract
Earlier Termination. (a) If the Executive shall die during the term of this Third Amended and Restated Agreement, this Third Amended and Restated Agreement shall be deemed to have been terminated as of the date of the Executive's death, and the Company shall pay to the legal representative of the Executive's estate all monies due hereunder prorated through the last day of the month during which the Executive shall have died, as well as a bonus equal to the product of (x) the base salary payable to the Executive pursuant to subsection 3(a) from January 1 of the year in which the Executive shall have died through the last day of the month during which the Executive shall have died and (y) the greater of (i) 1/2 or (ii) the percentage of the Executive's base salary for the immediately preceding fiscal year that was paid to the Executive or into the Wellsford Real Properties, Inc. Deferred Compensation Plan as a bonus on his behalf for the immediately preceding fiscal year, expressed as a fraction (the greater of clauses (i) and (ii) being herein referred to as the "Deemed Bonus Fraction");
(b) If the Executive shall fail, because of illness or incapacity, to render the services contemplated by this Third Amended and Restated Agreement for six successive consecutive months or for shorter periods aggregating nine months in any calendar year, the directors of the Company may determine, on the basis of medical evidence satisfactory to the Company, determine (as set forth in the Company's sole discretion, subsection (d) below) that the Executive has become disabled. If within thirty (30) days after the date on which written notice of such determination is given to the Executive, the Executive shall not have returned to the continuing full-time performance of his duties hereunder, this Third Amended and Restated Agreement and the employment of the Executive hereunder shall be deemed terminated in accordance with Section 8 hereof.
(b) Except as otherwise provided in this Agreement, if and the Company shall pay to the Executive shall die during all monies due hereunder prorated through the term of this Agreement, this Agreement shall be deemed to have been terminated as last day of the date month during which such termination shall occur, as well as a bonus equal to the product of death (x) the base salary payable to the Executive pursuant to subsection 3(a) from January 1 of the Executiveyear in which this Third Amended and Restated Agreement is terminated through the last day of the month during which this Third Amended and Restated Agreement is terminated and (y) the Deemed Bonus Fraction.
(c) The Company, by written notice to the ExecutiveExecutive specifying the reason therefor, may terminate this Third Amended and Restated Agreement for proper causeCause as determined pursuant to subsection (d) below. As used herein, "proper causeCause" shall mean (i) the willful and continued failure be defined as actions by the Executive to substantially perform his duties with the Company (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or any such actual or anticipated failure resulting from termination by the Executive for Good Reason (as defined below)) after a written demand for substantial performance which constitute malfeasance. Malfeasance includes, but is delivered to the Executive by the directors of the Company, which demand specifically identifies the manner in which the directors believe that the Executive has not substantially performed his duties, or (ii) the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise. For purposes of this subsection 6(c), no act, or failure to act, on the Executive's part shall be deemed "willful" unless done, or omitted to be done, by the Executive otherwise than in good faith and in a manner that the Executive reasonably believed was in or not opposed to the best interests of the Company and its shareholders. Notwithstanding the foregoinglimited to, the Executive shall not be deemed to have been terminated for proper cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of all of the directors of the Company at a meeting of the directors called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executiveengaging in fraud, together with counsel of his choosing, to be heard before the directors not less than 10 business days after the giving of such notice), finding that in the good faith opinion of the directors, the Executive conducted himself as set forth above in clause (i) dishonest conduct or (ii) of the first sentence of this subsection 6(c) and specifying the particulars of such conduct in detailother criminal conduct.
(d) The Executive may terminate this Agreement for "Good Reason" if any of the following events occurs:
Appears in 1 contract
Samples: Employment Agreement (Wellsford Real Properties Inc)
Earlier Termination. (a) If the Executive shall die during the term of this Second Amended and Restated Agreement, this Second Amended and Restated Agreement shall be deemed to have been terminated as of the date of the Executive's death, and the Company shall pay to the legal representative of the Executive's estate all monies due hereunder prorated through the last day of the month during which the Executive shall have died, as well as a bonus equal to the product of (x) the base salary payable to the Executive pursuant to subsection 3(a) from January 1 of the year in which the Executive shall have died through the last day of the month during which the Executive shall have died and (y) the greater of (i) 1/2 or (ii) the percentage of the Executive's base salary for the immediately preceding fiscal year that was paid to the Executive or into the Wellsford Real Properties, Inc. Deferred Compensation Plan as a bonus on his behalf for the immediately preceding fiscal year, expressed as a fraction (the greater of clauses (i) and (ii) being herein referred to as the "Deemed Bonus Fraction");
(b) If the Executive shall fail, because of illness or incapacity, to render the services contemplated by this Second Amended and Restated Agreement for six successive consecutive months or for shorter periods aggregating nine months in any calendar year, the directors of the Company may determine, on the basis of medical evidence satisfactory to the Company, determine (as set forth in the Company's sole discretion, subsection (d) below) that the Executive has become disabled. If within thirty (30) days after the date on which written notice of such determination is given to the Executive, the Executive shall not have returned to the continuing full-time performance of his duties hereunder, this Second Amended and Restated Agreement and the employment of the Executive hereunder shall be deemed terminated in accordance with Section 8 hereof.
(b) Except as otherwise provided in this Agreement, if and the Company shall pay to the Executive shall die during all monies due hereunder prorated through the term of this Agreement, this Agreement shall be deemed to have been terminated as last day of the date month during which such termination shall occur, as well as a bonus equal to the product of death (x) the base salary payable to the Executive pursuant to subsection 3(a) from January 1 of the Executiveyear in which this Second Amended and Restated Agreement is terminated through the last day of the month during which this Second Amended and Restated Agreement is terminated and (y) the Deemed Bonus Fraction.
(c) The Company, by written notice to the ExecutiveExecutive specifying the reason therefor, may terminate this Second Amended and Restated Agreement for proper causeCause as determined pursuant to subsection (d) below. As used herein, "proper causeCause" shall mean (i) the willful and continued failure be defined as actions by the Executive to substantially perform his duties with the Company (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or any such actual or anticipated failure resulting from termination by the Executive for Good Reason (as defined below)) after a written demand for substantial performance which constitute malfeasance. Malfeasance includes, but is delivered to the Executive by the directors of the Company, which demand specifically identifies the manner in which the directors believe that the Executive has not substantially performed his duties, or (ii) the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise. For purposes of this subsection 6(c), no act, or failure to act, on the Executive's part shall be deemed "willful" unless done, or omitted to be done, by the Executive otherwise than in good faith and in a manner that the Executive reasonably believed was in or not opposed to the best interests of the Company and its shareholders. Notwithstanding the foregoinglimited to, the Executive shall not be deemed to have been terminated for proper cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of all of the directors of the Company at a meeting of the directors called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executiveengaging in fraud, together with counsel of his choosing, to be heard before the directors not less than 10 business days after the giving of such notice), finding that in the good faith opinion of the directors, the Executive conducted himself as set forth above in clause (i) dishonest conduct or (ii) of the first sentence of this subsection 6(c) and specifying the particulars of such conduct in detailother criminal conduct.
(d) The Executive may terminate this Agreement for "Good Reason" if any of the following events occurs:
Appears in 1 contract
Samples: Employment Agreement (Wellsford Real Properties Inc)
Earlier Termination. (a) If Notwithstanding any term of employment provided for in paragraph 2 hereof, the Executive Company shall fail, because of illness or incapacity, have the right to render the services contemplated by terminate this Agreement immediately, and without further obligation hereunder, for six successive months any of the following causes:
(i) Conviction of, or for shorter periods aggregating nine months a plea of guilty or nolo contendere by Employee to (A) any felony, or (B) any misdemeanor reflecting upon Employee’s honesty or truthfulness;
(ii) Employee’s breach or negligent performance of his or her duties and obligations arising under this Agreement with the Company;
(iii) Fraudulent conduct by Employee, either in any calendar year, the directors connection with his or her duties as an employee of the Company may determineor otherwise;
(iv) Material breach of any policy, on rule, or regulation of the basis Company;
(v) The good faith determination of medical evidence the Board of Directors that Employee has failed to perform his or her duties to the Company in a satisfactory manner; or
(vi) The Employee dies or suffers a permanent disability. For purposes of this Agreement, the term “permanent disability” shall mean a physical or mental incapacity of the Employee which renders the Employee unable to perform his duties hereunder and which shall continue for twelve (12) months during any period of eighteen (18) consecutive months. If the Employee’s employment is terminated as a result of death or permanent disability, the Employee or his estate shall receive an amount which, when added to any disability benefits provided for by the Company, in equals his Compensation until the Company's sole discretion, that the Executive has become disabled. If within thirty twelve (3012) days after the date on which written notice of such determination is given to the Executive, the Executive shall not have returned to the full-time performance of his duties hereunder, this Agreement and the employment month anniversary of the Executive hereunder shall be deemed terminated in accordance with Section 8 hereoftermination.
(b) Except as otherwise provided in Notwithstanding the foregoing provisions of paragraph 6(a),
(i) In the event the Employee breaches clauses (ii), (iii) and (iv) of paragraph 6(a) this Agreement, if the Executive Board of Directors shall die during provide the term of this Agreement, this Agreement shall be deemed to have been terminated as Employee written notice of the date of death of breach and shall provide the Executive.
(c) The Company, by notice Employee at least a 30 day period in which to cure the breach to the Executive, may terminate this Agreement for proper cause. As used herein, "proper cause" shall mean (i) the willful and continued failure by the Executive to substantially perform his duties with the Company (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or any such actual or anticipated failure resulting from termination by the Executive for Good Reason (as defined below)) after a written demand for substantial performance is delivered to the Executive by the directors of the Company, which demand specifically identifies the manner in which the directors believe that the Executive has not substantially performed his duties, or Board’s good faith satisfaction; and
(ii) the willful engaging Company shall retain the right to terminate Employee ‘s retention at any time without Cause. If Employee’s retention hereunder shall be terminated by the Executive Company for any reason other than for Cause (as defined in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise. For purposes of this subsection 6(cparagraph (a) above), no act, or failure to act, on the Executive's part shall be deemed "willful" unless done, or omitted to be done, by the Executive otherwise than in good faith and in a manner that the Executive reasonably believed was in or not opposed to the best interests of the Company and its shareholders. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for proper cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of all of the directors of the Company at a meeting of the directors called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with counsel of his choosing, to be heard before the directors not less than 10 business days after the giving of such notice), finding that in the good faith opinion of the directors, the Executive conducted himself as set forth above in clause (i) or (ii) of the first sentence of this subsection 6(c) and specifying the particulars of such conduct in detail.
(d) The Executive may terminate Employee terminates this Agreement for "“Good Reason" if any ” as defined in Section 7 then Employee shall be entitled to receive an amount equal to three (3) years of his then Compensation payable in accordance with the following events occurs:Company’s normal payroll policies.
Appears in 1 contract
Earlier Termination. Your employment hereunder shall terminate prior to the expiration of the Initial Term (or any renewal term, in the event of renewal) on the following terms and conditions:
(a) If the Executive This Agreement shall fail, because of illness or incapacity, to render the services contemplated by this Agreement for six successive months or for shorter periods aggregating nine months in any calendar year, the directors of the Company may determine, terminate automatically on the basis date of medical evidence satisfactory to the Company, in the Company's sole discretion, that the Executive has become disabled. If within thirty (30) days after the date on which written notice of such determination is given to the Executive, the Executive shall not have returned to the full-time performance of his duties hereunder, this Agreement and the employment of the Executive hereunder shall be deemed terminated in accordance with Section 8 hereofyour death.
(b) Except as otherwise provided This Agreement shall be terminated if you are unable to perform your duties hereunder for 120 days (whether or not continuous) during any period of 180 consecutive days by reason of physical or mental disability. The disability shall be deemed to have occurred on the 120th day of your absence or lack of adequate performance.
(c) This Agreement shall terminate immediately upon the Company's sending you written notice terminating your employment hereunder for "Just Cause," which shall mean (i) an act or acts of fraud or dishonesty by you which results in the personal enrichment of you or another person or entity at the expense of the Company; (ii) your admission, confession or conviction of (X) any felony (other than third degree vehicular infractions), or (Y) of any other crime or offense involving misuse or misappropriation of money or other property; (iii) your continued material breach of any obligations under this AgreementAgreement 30 days after the Company has given you notice thereof in reasonable detail, if such breach has not been cured by you during such period; or (iv) your gross negligence or willful misconduct with respect to your duties or gross misfeasance of office.
(d) This Agreement shall terminate immediately upon the Executive Company's sending you written notice terminating your employment hereunder (without Just Cause therefor having been given by you) for any reason or for no reason. Upon any such termination, the Company's sole obligation to you shall die during be (i) to pay you the Total Payment that would have been due to you for the remainder of the Initial Term, or the then current renewal term of this Agreement, this Agreement as the case may be (which shall be deemed to paid as and when such amounts would have been terminated due had your employment continued). In no event will the aggregate payment to be received by you pursuant to this Section 9(d) be less than one year's worth of Base Salary in effect as of the date of death termination of the Executiveyour employment hereunder.
(ce) The CompanyExcept as specifically set forth in Section 9(d) above, by notice to the Executiveupon termination of this Agreement, may terminate this Agreement for proper cause. As used herein, "proper cause" shall mean (i) the willful and continued failure by the Executive to substantially perform his duties with the Company (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or any such actual or anticipated failure resulting from termination by the Executive for Good Reason (as defined below)) after a written demand for substantial performance is delivered to the Executive by the directors of the Company, which demand specifically identifies the manner in which the directors believe that the Executive has not substantially performed his duties, or (ii) the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise. For purposes of this subsection 6(c), no act, or failure to act, on the Executive's part obligations hereunder shall be deemed "willful" unless done, or omitted to be done, by the Executive otherwise than in good faith and in a manner that the Executive reasonably believed was in or not opposed to the best interests of the Company and its shareholders. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for proper cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of all of the directors of the Company at a meeting of the directors called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with counsel of his choosing, to be heard before the directors not less than 10 business days after the giving of such notice), finding that in the good faith opinion of the directors, the Executive conducted himself as set forth above in clause (i) or (ii) of the first sentence of this subsection 6(c) and specifying the particulars of such conduct in detailcease.
(d) The Executive may terminate this Agreement for "Good Reason" if any of the following events occurs:
Appears in 1 contract
Earlier Termination. (a) If the Executive shall fail, because of illness or incapacity, to render the services contemplated by this Agreement for six successive months or for shorter periods aggregating nine months in any calendar year, the directors of the Company Board may determine, on the basis of medical evidence satisfactory to the CompanyBoard, in the Company's Board’s sole discretion, that the Executive has become disabled. If within thirty (30) days after the date on which written notice of such determination is given to the Executive, the Executive shall not have returned to the full-time performance of his duties hereunder, this Agreement and the employment of the Executive hereunder shall be deemed terminated on such 30th day in accordance with Section 8 hereof.
(b) Except as otherwise provided in this Agreement, if the Executive shall die during the term of this Agreement, this Agreement shall be deemed to have been terminated as of the date of death of the Executive.
(c) The Company, by notice to the Executive, may terminate this Agreement for proper cause. As used herein, "“proper cause" ” shall mean (i) the willful and continued failure by the Executive to substantially perform his duties with the Company (other than any such failure resulting from the Executive's ’s incapacity due to physical or mental illness or any such actual or anticipated failure resulting from termination by the Executive for Good Reason (as defined below)) after a written demand for substantial performance is delivered to the Executive by the directors of the CompanyBoard, which demand specifically identifies the manner in which the directors believe Board believes that the Executive has not substantially performed his duties, or (ii) the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise. For purposes of this subsection 6(c), no act, or failure to act, on the Executive's ’s part shall be deemed "“willful" ” unless done, or omitted to be done, by the Executive otherwise than in good faith and in a manner that the Executive reasonably believed was in or not opposed to the best interests of the Company and its shareholdersstockholders. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for proper cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of all of the directors members of the Company Board at a meeting of the directors Board called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with counsel of his choosing, to be heard before the directors Board not less than 10 business days after the giving of such notice), finding that in the good faith opinion of the directorsBoard, the Executive conducted himself as set forth above in clause (i) or (ii) of the first sentence of this subsection 6(c) and specifying the particulars of such conduct in detail. Notwithstanding anything contained in this Agreement to the contrary, no failure to perform by the Executive after a Notice of Termination is given by the Executive shall constitute proper cause for purposes of this Agreement.
(d) The Executive may terminate this Agreement for "“Good Reason" ” if any of the following events occurs:
(i) the assignment to the Executive of any duties materially inconsistent with his status as a senior executive officer of the Company or a substantial alteration in the nature or status of his responsibilities;
(ii) the Company’s breach of any of its agreements or obligations under this Agreement;
(iii) the failure by the Company to pay the Executive any installment of a previous award under any bonus or incentive compensation arrangement;
(iv) the failure of the Company to obtain a satisfactory agreement from any successor to assume and agree to perform this Agreement, as contemplated in Section 13 hereof;
(v) any purported termination of the Executive’s employment which is not effected pursuant to a Notice of Termination (defined below) satisfying the requirements of Section 7 hereof; or
(vi) any change in control of the Company, as defined in subsection 6(e).
(e) For purposes of this Agreement, a “change in control of the Company” shall be deemed to occur if:
(i) there shall have occurred a change in control of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as in effect on the date hereof, whether or not the Company is then subject to such reporting requirement, provided, however, that there shall not be deemed to be a change in control of the Company if immediately prior to the occurrence of what would otherwise be a change in control of the Company (A) the Executive is the other party to the transaction (a “Control Event”) that would otherwise result in a change in control of the Company or (B) the Executive is an executive officer, trustee, director or more than 5% equity holder of the other party to the Control Event or of any entity, directly or indirectly, controlling such other party, or
(ii) the Company engages in a merger, consolidation or reorganization or sells all or substantially all of the Company’s assets to a “Person” (as such term is used for purposes of Section 13(d) or 14(d) of the Exchange Act (each, a “Transaction”)), provided, however, that a Transaction shall not be deemed to result in a change in control of the Company if (A) immediately prior thereto the circumstances in subsection 6(e)(i)(A) or subsection 6(e)(i)(B) above exist, or (B) (1) the stockholders immediately before such Transaction own, directly or indirectly, immediately following such Transaction in excess of 69% of the combined voting power of the outstanding voting securities of the corporation or other entity resulting from such Transaction (the “Surviving Corporation”) in substantially the same proportion as their ownership of the voting securities of the Company immediately before such Transaction and (2) the individuals who were members of the Board immediately prior to the execution of the agreement providing for such Transaction constitute at least a majority of the members of the board of directors or the board of trustees, as the case may be, of the Surviving Corporation, or of a corporation or other entity beneficially, directly or indirectly, owning a majority of the outstanding voting securities of the Surviving Corporation, or
(iii) the Company acquires the assets of another company or a subsidiary of the Company merges, consolidates or reorganizes with another company (each, an “Other Transaction”) and (A) the stockholders immediately before such Other Transaction own, directly or indirectly, immediately following such Other Transaction 69% or less of the combined voting power of the outstanding voting securities of the corporation or other entity resulting from such Other Transaction (the “Other Surviving Corporation”) in substantially the same proportion as their ownership of the voting securities of the Company immediately before such Other Transaction or (B) the individuals who were members of the Company’s Board immediately prior to the execution of the agreement providing for such Other Transaction constitute less than a majority of the members of the board of directors or the board of trustees, as the case may be, of the Other Surviving Corporation, or of a corporation or other entity beneficially directly or indirectly owning a majority of the outstanding voting securities of the Other Surviving Corporation, provided, however, that an Other Transaction shall not be deemed to result in a change in control of the Company if immediately prior thereto the circumstances in subsection 6(e)(i)(A) or subsection 6(e)(i)(B) above exist, or
(iv) adoption by the Board and the approval by the stockholders of a liquidation or dissolution of the Company;
(v) any Person or group of affiliated Persons owns at any time 30% or more of the outstanding voting securities of the Company, provided that such Person or group shall not be deemed to own 30% or more of the outstanding voting securities of the Company if the last event or transaction which results in such ownership is (a) the issuance of such securities in connection with the sale by the Company of less than all or substantially all of its assets or (b) the acquisition by the Company of any such voting securities; provided, however, that if a Person owns 30% or more of the outstanding voting securities of the Company as a result of the acquisition by the Company of any such voting securities and after such acquisition by the Company, such Person becomes the owner of any additional voting securities of the Company than a change in control of the Company shall occur; or
(vi) the rejection by the stockholders of the entire slate of directors that the Board proposes at a single election of directors; and
(vii) the rejection by the stockholders of one-half or more of the directors that the Board proposes over any two or more consecutive elections of directors.
(f) Notwithstanding anything contained in this Agreement to the contrary, if the Executive’s employment is terminated prior to a change in control of the Company and the Executive reasonably demonstrates that such termination: (i) was at the request of a third party who has indicated an intention or taken steps reasonably calculated to effect a change in control and who effectuates a change in control of the Company or (ii) otherwise occurred in connection with, or in anticipation of, a change in control of the Company which actually occurs, then for all purposes of this Agreement, the date of a change in control of the Company with respect to the Executive shall mean the date immediately prior to the date of such termination of the Executive’s employment.
Appears in 1 contract
Samples: Employment Agreement (Wellsford Real Properties Inc)
Earlier Termination. Notwithstanding anything herein contained, if on or after the date hereof and prior to the end of the Consulting Period,
(a) If the Executive shall fail, because of illness or incapacity, to render the services contemplated by this Agreement may be terminated by the Company upon five days prior written notice if (i) both of Dick Foster and Lynne Foster shall be physically or mentally incapxxxxxxxx xr disxxxxx xx xxherwise unable fully to discharge their duties hereunder for six successive months a period of 45 consecutive days, or for shorter periods aggregating nine months 90 days, whether or not continuous, in any calendar yearperiod of 180 days during the Consulting Period, (ii) either of Dick Foster and Lynne Foster shall be convicted of a crime, (iii) txx Xxxxx xx Direxxxxx xx xxe Company shall have determined the directors Consultant (or either of Dick Foster and Lynne Foster, as the case may be) has committed axx xxx xx omittxx xx xxxx xny action in bad faith and to the detriment of the Company, including, but not limited to the appropriation (or attempted appropriation) of the Company's funds or property or a material business opportunity of the Company, including attempting to secure or securing any personal profit in connection with any transaction entered into on behalf of the Company may determine, on the basis of medical evidence satisfactory to the Company, in or has materially neglected the Company's sole discretionbusiness, (iv) the Board of Directors of the Company shall have determined that the Executive Consultant (or either of Dick Foster and Lynne Foster, as the case may be) has become disabled. If breached any xxxx xx xxxs Agrxxxxxx xx xxiled to adhere to any written Company policy if the Consultant (or either of Dick Foster and Lynne Foster, as the case may be) has been given a reasonable opportunity to comply with such policy and failed to correct such breach, if such breach is curable, within thirty (30) five days after commission thereof, then, and in each such case, the Company shall have the right to give notice of termination of the Consultant's services hereunder as of a date (not earlier than ten days from such notice) to be specified in such notice, and this Agreement shall terminate on the date on which written notice so specified, or (v) the Consultant (or either of such determination Dick Foster and Lynne Foster, as the case may be) is given convicted of, txx xxxxxxxxnt fox (xx xxx xxocedural equivalent), or the entering of a guilty plea or plea of no contest with respect to the Executivea felony, the Executive shall not have returned equivalent thereof, or any other crime with respect to which imprisonment is a possible punishment, or (vi) the full-time performance services to be provided by either of his duties hereunder, this Agreement Dick Foster and the employment of the Executive hereunder shall be deemed terminated Lynne Foster are delegated to a third party in accordance with Section 8 hereof.brxxxx xx xxxx Agreexxxx; xx
(b) Except as otherwise provided in this Agreementautomatically on the date of the death of the latter to survive of either Dick Foster and Lynne Foster;
(c) upon any termination of thix Xxxxxxxxx, if thx xxxxxxxxxx of the Executive Company to make any further payments, or provide any benefits specified herein, other than those payments and benefits, shall die during the term of this Agreement, this Agreement shall be deemed to have been terminated cease and terminate as of the date of death of the Executivesuch termination.
(c) The Company, by notice to the Executive, may terminate this Agreement for proper cause. As used herein, "proper cause" shall mean (i) the willful and continued failure by the Executive to substantially perform his duties with the Company (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or any such actual or anticipated failure resulting from termination by the Executive for Good Reason (as defined below)) after a written demand for substantial performance is delivered to the Executive by the directors of the Company, which demand specifically identifies the manner in which the directors believe that the Executive has not substantially performed his duties, or (ii) the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise. For purposes of this subsection 6(c), no act, or failure to act, on the Executive's part shall be deemed "willful" unless done, or omitted to be done, by the Executive otherwise than in good faith and in a manner that the Executive reasonably believed was in or not opposed to the best interests of the Company and its shareholders. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for proper cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of all of the directors of the Company at a meeting of the directors called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with counsel of his choosing, to be heard before the directors not less than 10 business days after the giving of such notice), finding that in the good faith opinion of the directors, the Executive conducted himself as set forth above in clause (i) or (ii) of the first sentence of this subsection 6(c) and specifying the particulars of such conduct in detail.
(d) The Executive may terminate this Agreement for "Good Reason" if any of the following events occurs:
Appears in 1 contract
Samples: Consulting Agreement (Sibling Entertainment Group, Inc.)
Earlier Termination. (a) If the Executive shall die during the term of this Agreement, this Agreement shall be deemed to have been terminated as of the date of the Executive's death, and the Company shall pay to the legal representative of the Executive's estate all monies due hereunder prorated through the last day of the month during which the Executive shall have died.
(b) If the Executive shall fail, because of illness or incapacity, to render the services contemplated by this Agreement for six successive consecutive months or for shorter periods aggregating nine months in any calendar year, the directors of the Company may determine, on the basis of medical evidence satisfactory to the Company, determine (as set forth in the Company's sole discretion, subsection (d) below) that the Executive has become disabled. If within thirty (30) days after the date on which written notice of such determination is given to the Executive, the Executive shall not have returned to the continuing full-time performance of his duties hereunder, this Agreement and the employment of the Executive hereunder shall be deemed terminated in accordance with Section 8 hereof.
(b) Except as otherwise provided in this Agreement, if and the Company shall pay to the Executive shall die during all monies due hereunder prorated through the term of this Agreement, this Agreement shall be deemed to have been terminated as last day of the date of death of the Executivemonth during which such termination shall occur.
(c) The Company, by written notice to the ExecutiveExecutive specifying the reason therefor, may terminate this Agreement for proper causeCause as determined pursuant to subsection (d) below. As used herein, "proper causeCause" shall mean be defined as actions by the Executive which constitute (i) the fraud, illegal or willful and continued failure by the Executive to substantially perform his duties with the Company (other than any such failure resulting from the Executive's incapacity due to physical misconduct or mental illness or any such actual or anticipated failure resulting from termination by the Executive for Good Reason (as defined below)) after a written demand for substantial performance is delivered to the Executive by the directors of the Companydishonest conduct, which demand specifically identifies the manner in which the directors believe that the Executive has not substantially performed his duties, or (ii) the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Companya breach of any duties, monetarily responsibilities or otherwiseobligations hereunder or (iii) habitual abuse of drugs or alcohol. For purposes of this subsection 6(c), no act, or failure to act, on the Executive's part shall be deemed "willful" unless done, or omitted to be done, by the Executive otherwise than in good faith and in a manner that the Executive reasonably believed was in or not opposed to the best interests of the Company and its shareholders. Notwithstanding the foregoingIn such event, the Executive shall not be deemed to have been terminated for proper cause unless paid the Executive's full base salary through the date of termination at the rate in effect at the time notice of termination is given and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of all of the directors of the Company at a meeting of the directors called and held for such purpose (after reasonable notice shall thereafter have no further obligations to the this Executive and an opportunity for the Executive, together with counsel of his choosing, to be heard before the directors not less than 10 business days after the giving of such notice), finding that in the good faith opinion of the directors, the Executive conducted himself as set forth above in clause (i) or (ii) of the first sentence of under this subsection 6(c) and specifying the particulars of such conduct in detailAgreement.
(d) The Executive may terminate this Agreement for "Good Reason" if any of the following events occurs:
Appears in 1 contract
Samples: Employment Agreement (Wellsford Real Properties Inc)
Earlier Termination. (a) If the Executive shall fail, because of illness or incapacity, to render the services contemplated by this Agreement for six successive months or for shorter periods aggregating nine months in any calendar year, the directors of the Company Board may determine, on the basis of medical evidence satisfactory to the CompanyBoard, in the CompanyBoard's sole discretion, that the Executive has become disabled. If within thirty (30) days after the date on which written notice of such determination is given to the Executive, the Executive shall not have returned to the full-time performance of his duties hereunder, this Agreement and the employment of the Executive hereunder shall be deemed terminated on such 30th day in accordance with Section 8 hereof.
(b) Except as otherwise provided in this Agreement, if the Executive shall die during the term of this Agreement, this Agreement shall be deemed to have been terminated as of the date of death of the Executive.
(c) The Company, by notice to the Executive, may terminate this Agreement for proper cause. As used herein, "proper cause" shall mean (i) the willful and continued failure by the Executive to substantially perform his duties with the Company (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or any such actual or anticipated failure resulting from termination by the Executive for Good Reason (as defined below)) after a written demand for substantial performance is delivered to the Executive by the directors of the CompanyBoard, which demand specifically identifies the manner in which the directors believe Board believes that the Executive has not substantially performed his duties, or (ii) the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise. For purposes of this subsection 6(c), no act, or failure to act, on the Executive's part shall be deemed "willful" unless done, or omitted to be done, by the Executive otherwise than in good faith and in a manner that the Executive reasonably believed was in or not opposed to the best interests of the Company and its shareholdersStockholders. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for proper cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of all of the directors members of the Company Board at a meeting of the directors Board called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with counsel of his choosing, to be heard before the directors Board not less than 10 business days after the giving of such notice), finding that in the good faith opinion of the directorsBoard, the Executive conducted himself as set forth above in clause (i) or (ii) of the first sentence of this subsection 6(c) and specifying the particulars of such conduct in detail. Notwithstanding anything contained in this Agreement to the contrary, no failure to perform by the Executive after a Notice of Termination is given by the Executive shall constitute proper cause for purposes of this Agreement.
(d) The Executive may terminate this Agreement for "Good Reason" if any of the following events occurs:
Appears in 1 contract
Samples: Employment Agreement (Wellsford Real Properties Inc)
Earlier Termination. (a) If the Executive shall fail, because of illness or incapacity, disability to render the services contemplated by this Agreement for six successive months or for shorter periods aggregating nine months in any calendar yearof the three Contract Years, the directors of the Company Board may determine, on the basis of medical evidence satisfactory to the CompanyBoard, in the CompanyBoard's sole discretion, that the Executive has become disabled. If within thirty (30) days after the date on which written notice of such determination is given to the Executive, the Executive shall not have returned to the full-time performance of his duties hereunder, this Agreement and the employment of the Executive hereunder shall be deemed terminated on such 30th day in accordance with Section 8 hereof.
(b) Except as otherwise provided in this Agreement, if the Executive shall die during the term of this Agreement, this Agreement shall be deemed to have been terminated as of the date of death of the Executive.
(c) The CompanyEmployers, by notice to the Executive, may terminate this Agreement for proper cause. As used herein, "proper cause" shall mean (i) the willful and continued failure by the Executive to substantially perform his duties with the Company Employers (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or any such actual or anticipated failure resulting from termination by the Executive for Good Reason (as defined below)) after a written demand for substantial performance is delivered to the Executive by the directors of the CompanyBoard, which demand specifically identifies the manner in which the directors believe Board believes that the Executive has not substantially performed his duties, or (ii) the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the CompanyEmployers, monetarily or otherwise. For purposes of this subsection 6(c), no act, or failure to act, on the Executive's part shall be deemed "willful" unless done, or omitted to be done, by the Executive otherwise than in good faith and in a manner that the Executive reasonably believed was in or not opposed to the best interests of the Company Employers and its shareholderstheir equity owners. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for proper cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of all of the directors members of the Company Board at a meeting of the directors Board called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with counsel of his choosing, to be heard before the directors Board not less than 10 business days after the giving of such notice), finding that in the good faith opinion of the directorsBoard, the Executive conducted himself as set forth above in clause (i) or (ii) of the first sentence of this subsection 6(c) above and specifying the particulars of such conduct in detail. Notwithstanding anything contained in this Agreement to the contrary, no failure to perform by the Executive after a notice of termination is given by the Executive to the Employers shall constitute "proper cause" for purposes of this Agreement.
(d) The Executive may terminate this Agreement for "Good Reason" if any of the following events occurs:
Appears in 1 contract
Samples: Employment Agreement (Wellsford Real Properties Inc)
Earlier Termination. (a) If the Executive Manufacturer shall fail, because of illness or incapacity, be entitled to render the services contemplated by terminate this Agreement for six successive months by giving not less than twenty (20) days' written notice to Distributor if there is any change in the management, ownership or for shorter periods aggregating nine months control of Distributor. Distributor agrees to provide notice to Manufacturer no earlier than thirty (30) business days prior to the consummation of any change in the management, ownership or control of Distributor.
(b) Without prejudice to any calendar yearother provision in this Agreement, Manufacturer shall be entitled to terminate this Agreement by giving not less than five (5) days' written notice to Distributor upon the directors occurrence of any of the Company may determine, on following:
(i) Distributor fails to perform its obligations under the basis Distributor's Business Plan and such non-performance continues for thirty (30) days after written notice giving full particulars of medical evidence satisfactory such non-performance and requiring it to be remedied;
(ii) Distributor commits any breach of any of the Companyprovisions of this Agreement and, in the Company's sole discretioncase of a breach of a payment obligation, that fails to remedy the Executive has become disabled. If same within five (5) days after written notice of such failure to pay, and in the case of a breach of any other obligation, fails to remedy the same within thirty (30) days after the date on which receipt of a written notice of such determination is given to the Executive, the Executive shall not have returned to the full-time performance of his duties hereunder, this Agreement and the employment giving full particulars of the Executive hereunder shall breach and requiring it to be deemed terminated in accordance with Section 8 hereof.remedied;
(biii) Except as otherwise provided in this AgreementDistributor goes into bankruptcy, if the Executive shall die during the term of this Agreementmoratorium, this Agreement shall be deemed receivership, liquidation, or anything analogous to have been terminated as any of the date foregoing under the law of death of the Executiveany jurisdiction; or
(iv) Distributor ceases to carry on business or Manufacturer reasonably believes that Distributor will be ceasing to carry on business or otherwise be unable to perform its obligations to Manufacturer.
(c) The CompanyDistributor shall have no claim against Manufacturer for compensation for loss of distribution rights, by notice to the Executive, may terminate this Agreement for proper cause. As used herein, "proper cause" shall mean (i) the willful and continued failure by the Executive to substantially perform his duties with the Company (other than any such failure resulting from the Executive's incapacity due to physical or mental illness loss of goodwill or any such actual or anticipated failure resulting from termination by the Executive for Good Reason (as defined below)) after a written demand for substantial performance is delivered to the Executive by the directors of the Company, which demand specifically identifies the manner in which the directors believe that the Executive has not substantially performed his duties, or (ii) the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise. For purposes of this subsection 6(c), no act, or failure to act, on the Executive's part shall be deemed "willful" unless done, or omitted to be done, by the Executive otherwise than in good faith and in a manner that the Executive reasonably believed was in or not opposed to the best interests of the Company and its shareholders. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for proper cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of all of the directors of the Company at a meeting of the directors called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with counsel of his choosing, to be heard before the directors not less than 10 business days after the giving of such notice), finding that in the good faith opinion of the directors, the Executive conducted himself as set forth above in clause (i) or (ii) of the first sentence of this subsection 6(c) and specifying the particulars of such conduct in detailsimilar loss.
(d) The Executive may terminate this Agreement for "Good Reason" if any of the following events occurs:
Appears in 1 contract
Samples: International Exclusive Distributorship Agreement (Smart Energy Solutions, Inc.)
Earlier Termination. (a) If the Executive shall fail, because of illness or incapacity, to render the services contemplated by Your employment under this Agreement for six successive months or for shorter periods aggregating nine months in any calendar year, the directors of the Company may determine, shall terminate on the basis following terms and conditions:
i) Your employment under this Agreement shall terminate automatically on the date of medical evidence satisfactory to the Company, your death.
ii) Your employment under this Agreement shall terminate immediately upon a determination in the Company's sole discretionjudgment of a third party physician that you have been unable by reason of physical or mental disability to adequately perform fully your duties hereunder for an aggregate of 90 calendar days (whether or not continuous) during any period of 360 consecutive calendar days.
iii) Your employment under this Agreement shall terminate immediately upon Paradigm sending you written notice terminating your employment hereunder for just cause. For purposes of this Agreement, that "just cause" shall include, but not be limited to, (A) action by you involving dishonesty, fraud or misconduct, (B) your conviction of a felony, or your willful refusal or any material failure by you to perform your duties in accordance with this Agreement. A written notice of termination in reasonable detail given to you by Paradigm shall specify the Executive has become disabled. If reason(s) for such termination, and in the case where a cause for termination shall be susceptible of cure, and such notice of termination is the first notice of termination given to you for such reason, if you fail to cure such cause for termination within thirty fifteen (3015) business days after the date on which written of such notice, termination shall be effective upon the expiration date of such fifteen (15) day period, and if you cure such cause within said period, such notice of such determination termination shall be ineffective.
iv) If your employment is given terminated during the Term pursuant to the ExecutiveParagraph 9(a)(i), the Executive shall not have returned to the full-time performance (ii) or (iii) herein above, Paradigm will pay you, in lieu of his duties any other payments hereunder, your base salary, bonus and vacation pay that has accrued to that date and is payable under Paradigm's standard policies. You acknowledge that upon receipt of such payment, Paradigm will have no further obligations to you under this Agreement and the employment of the Executive hereunder shall be deemed terminated in accordance with Section 8 hereofagreement.
(b) Except as otherwise provided in this Agreement, if the Executive shall die during the term of this Agreement, If Paradigm terminates this Agreement other than for cause, you shall be deemed have the right to have been terminated as of receive, for the unexpired Term, your base salary, benefits and bonus, plus any base salary that has actually accrued to the date of death of the Executivetermination without regard to mitigation or offset by you.
(c) The Company, by notice to the Executive, may terminate this Agreement for proper cause. As used herein, "proper cause" shall mean (i) the willful and continued failure by the Executive to substantially perform his duties with the Company (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or any such actual or anticipated failure resulting from termination by the Executive for Good Reason (as defined below)) after a written demand for substantial performance is delivered to the Executive by the directors of the Company, which demand specifically identifies the manner in which the directors believe that the Executive has not substantially performed his duties, or (ii) the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise. For purposes of this subsection 6(c), no act, or failure to act, on the Executive's part shall be deemed "willful" unless done, or omitted to be done, by the Executive otherwise than in good faith and in a manner that the Executive reasonably believed was in or not opposed to the best interests of the Company and its shareholders. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for proper cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of all of the directors of the Company at a meeting of the directors called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with counsel of his choosing, to be heard before the directors not less than 10 business days after the giving of such notice), finding that in the good faith opinion of the directors, the Executive conducted himself as set forth above in clause (i) or (ii) of the first sentence of this subsection 6(c) and specifying the particulars of such conduct in detail.
(d) The Executive may terminate this Agreement for "Good Reason" if any of the following events occurs:
Appears in 1 contract
Samples: Employment Agreement (Paradigm Music Entertainment Co)
Earlier Termination. Your employment hereunder shall terminate ------------------- prior to the expiration of the Initial Term (or any renewal term, in the event of renewal) on the following terms and conditions:
(a) If the Executive This Agreement shall fail, because of illness or incapacity, to render the services contemplated by this Agreement for six successive months or for shorter periods aggregating nine months in any calendar year, the directors of the Company may determine, terminate automatically on the basis date of medical evidence satisfactory your death. Upon any termination pursuant to the Companythis Section 8(a), in the Company's sole discretion, that the Executive has become disabled. If within thirty (30) days after obligation shall be to pay your estate one year's worth of Base Salary in effect as of the date on which written notice of such determination is given to the Executive, the Executive shall not have returned to the full-time performance of his duties hereunder, this Agreement and the employment of the Executive hereunder your death. Such amounts shall be deemed terminated in accordance with Section 8 hereofpaid to your estate as and when such amounts would have been due had your employment continued.
(b) Except as otherwise provided in this Agreement, This Agreement shall be terminated if the Executive shall die you are unable to perform your duties hereunder for 90 days (whether or not continuous) during the term any period of this Agreement, this Agreement 360 consecutive days by reason of physical or mental disability. The disability shall be deemed to have been terminated occurred on the 90th day of your absence or lack of adequate performance. Upon any termination pursuant to this Section 8(b), the Company's sole obligation shall be to pay you one year's worth of Base Salary in effect as of the date of death termination of the Executiveyour employment hereunder. Such amounts shall be paid to you as and when such amounts would have been due had your employment continued.
(c) The This Agreement shall terminate immediately upon the Company's sending you written notice terminating your employment hereunder for "Just Cause," which shall mean your gross dereliction of duty or any legal or moral actions that would prevent you from carrying out your duties as anticipated by the Board of Directors of the Company; provided, by however, that the Company shall be required to deliver to you thirty days' prior written notice of its intention to the Executive, may terminate this Agreement for proper cause. As used herein, "proper cause" shall mean (ipursuant to this Section 8(c) the willful and continued failure by the Executive to substantially perform his duties with the Company (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or any such actual or anticipated failure resulting from termination by the Executive for Good Reason (as defined below)) after a written demand for substantial performance is delivered to the Executive by the directors of the Company, which demand specifically identifies the manner in which the directors believe that the Executive has not substantially performed his duties, or (ii) the willful engaging by the Executive in conduct which is demonstrably and materially injurious to the Company, monetarily or otherwise. For purposes of this subsection 6(c), no act, or failure to act, on the Executive's part shall be deemed "willful" unless done, or omitted to be done, by the Executive otherwise than in good faith and in a manner that the Executive reasonably believed was in or not opposed to the best interests of the Company and its shareholders. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for proper cause unless and until there whereupon you shall have been delivered a period of 90 days to cure the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of all of the directors of the Company at a meeting of the directors called and held for such purpose (after reasonable notice acts or omissions giving rise to the Executive and an opportunity for the Executive, together with counsel of his choosing, to be heard before the directors not less than 10 business days after the giving of such notice), finding that in the good faith opinion of the directors, the Executive conducted himself as set forth above in clause (i) or (ii) of the first sentence of this subsection 6(c) and specifying the particulars of such conduct in detail"Just Cause."
(d) The Executive may This Agreement shall terminate immediately upon the Company's sending you written notice terminating your employment hereunder (without Just Cause therefor having been given by you) for any reason or for no reason. Upon any termination pursuant to this Section 8(d), the Company's sole obligation to you shall be to pay you one year's worth of Base Salary in effect as of the date of termination of your employment hereunder. Such amounts shall be paid to you as and when such amounts would have been due had your employment continued. Upon a termination of this Agreement pursuant to this Section 8(d) you shall automatically be credited with one additional year of employment for "Good Reason" if any purposes of the following events occurs:Option vesting schedule set forth in Section 2(d) above.
(e) Except as specifically set forth in Section 9(d) above, upon termination of this Agreement, the Company's obligations hereunder shall cease.
Appears in 1 contract
