Common use of Terminating Event Clause in Contracts

Terminating Event. A “Terminating Event” shall mean any of the events provided in this Section 3 occurring subsequent to a Change in Control as defined in Section 2: (a) termination by the Company of the employment of the Executive with the Company for any reason other than (A) a willful act of dishonesty by the Executive with respect to any matter involving the Company or any subsidiary or affiliate, or (B) conviction of the Executive of a crime involving moral turpitude, or (C) the gross or willful failure by the Executive to substantially perform the Executive’s duties with the Company (other than any such failure after the Executive gives notice of termination for “Good Reason”), which failure is not cured within 30 days after a written demand for substantial performance is received by the Executive from the Board of Directors of the Company which specifically identifies the manner in which the Board of Directors believes the Executive has not substantially performed the Executive’s duties, or (D) the failure by the Executive to perform his full-time duties with the Company by reason of his death or disability; provided, however, that a Terminating Event shall not be deemed to have occurred pursuant to this Section 3(a) solely as a result of the Executive being an employee of any direct or indirect successor to the business or assets of the Company, rather than continuing as an employee of the Company following a Change in Control. For purposes of clauses (A) and (C) of this Section 3(a), 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 without reasonable belief that the Executive’s act, or failure to act, was in the best interests of the Company and its subsidiaries and affiliates. For purposes of clause (D) of this Section 3(a), Section 6 and Section 8(b) hereof, “disability” shall mean the Executive’s incapacity due to physical or mental illness which has caused the Executive to be absent from the full-time performance of his duties with the Company for a period of six (6) consecutive months if the Company shall have given the Executive a Notice of Termination and, within thirty (30) days after such Notice of Termination is given, the Executive shall not have returned to the full-time performance of his duties.

Terminating Event. A “Terminating Event” shall mean any of the events provided in this Section 3 occurring subsequent to a Change in Control as defined in Section 2: (a) termination Notwithstanding anything to the contrary contained in this Agreement, upon the occurrence of a Terminating Event with respect to a Member, the Person that suffers the Terminating Event shall immediately notify the Company, and the Company, for one hundred and twenty (120) days after it first learns of such Terminating Event, may elect to purchase or may designate a third party to purchase (the “Repurchase Election Period”) such Person’s entire Membership Interest in the Company and all economic rights of the Person in the Company (the “Withdrawal Interest”) from such Person or such Person’s legal or personal representative(s) or successor(s) (as applicable) (individually and collectively, the “Withdrawn Member”) for a price equal to the Fair Market Value of the Withdrawal Interest (the “Redemption Price”). If the Company timely makes that election, the Company or its designee shall purchase from the Withdrawn Member, and the Withdrawn Member shall sell to the Company or the Company’s designee, the Withdrawal Interest at the Redemption Price and on the terms set forth in the next paragraph. Effective as of the occurrence of the Terminating Event, the Person that suffers the Terminating Event shall immediately cease to be a Member and, if such Person’s Withdrawal Interest is not purchased by the Company of or the employment of the Executive with the Company for any reason other than (A) a willful act of dishonesty by the Executive with respect Company’s designee pursuant to any matter involving the Company or any subsidiary or affiliatethis Section 12.2, or (B) conviction of the Executive of a crime involving moral turpitude, or (C) the gross or willful failure by the Executive to substantially perform the Executive’s duties with the Company (other than any such failure after the Executive gives notice of termination for “Good Reason”), which failure is not cured within 30 days after a written demand for substantial performance is received by the Executive from unless the Board of Directors determines otherwise, such Person shall be and shall only have the rights of an unadmitted assignee under Section 4A-603 and Section 4A-604 of the Act (an “Unadmitted Assignee”). (b) The closing for any sale of a Withdrawal Interest of a Withdrawn Member, and purchase by the Company which specifically identifies or its designee, shall take place at the manner Company’s principal office on the tenth Business Day following the end of the Repurchase Election Period (unless the Fair Market Value has not been determined as of such date, in which case the Board purchase shall take place on the fifth Business Day following the determination of Directors believes Fair Market Value). At the Executive has not substantially performed the Executive’s dutiesclosing, or (Di) the failure Withdrawn Member shall assign and transfer to the Company or its designee all right, title and interest in and to the Withdrawal Interest (free and clear of all liens and encumbrances) and shall execute and deliver to the Company or its designee such other and further assurances as the Company or its designee may reasonably require to transfer to and vest the Withdrawal Interest in the Company or the designee, and (ii) the Company or its designee shall pay the Redemption Price in cash. If the Withdrawal Interest is transferred to a designee of the Company, such designee, at the option of the Member that did not suffer the Terminating Event and is not an Affiliate of the Member suffering the Terminating Event, may be admitted as a Member of the Company. Notwithstanding anything to the contrary contained in this Agreement, any decisions and/or determinations to be made by the Executive to perform his full-time duties with the Company by reason of his death or disability; provided, however, that a Terminating Event shall not be deemed to have occurred pursuant to this Section 3(a12.2 (e.g., whether to elect to purchase the Withdrawal Interest) shall be made solely as a result by the Directors appointed by the Member that did not suffer the Terminating Event and is not an Affiliate of the Executive being Member suffering the Terminating Event and not by the Directors appointed by the Member that suffered the Terminating Event (or by an employee Affiliate of any direct such Member) or indirect successor to the business or assets management of the Company. (c) Notwithstanding anything to the contrary contained in this Agreement, rather than continuing as an employee assignee of the Withdrawn Member pursuant to Section 12.1(a) or an Unadmitted Assignee may not transfer any of its rights in the Company following a Change in Control. For purposes without the unanimous consent of clauses (A) and (Cthe Member(s) of this Section 3(a), 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 without reasonable belief that the Executive’s act, or failure to act, was in the best interests of the Company and its subsidiaries and affiliates. For purposes of clause (D) of this Section 3(a), Section 6 and Section 8(b) hereof, “disability” shall mean the Executive’s incapacity due to physical or mental illness which has caused the Executive to be absent from the full-time performance of his duties with the Company for a period of six (6) consecutive months if the Company shall have given the Executive a Notice of Termination and, within thirty (30) days after such Notice of Termination is given, the Executive shall not have returned to the full-time performance of his dutiesCompany.

Terminating Event. A “Terminating Event” shall mean any of the events provided in this Section 3 occurring subsequent to a Change in Control as defined in Section 2: (a) termination by the Company of the employment of the Executive with the Company for any reason other than (A) a willful act of dishonesty by the Executive with respect to any matter involving the Company or any subsidiary or affiliate, or (B) conviction of the Executive of a crime involving moral turpitude, or (C) the gross or willful failure by the Executive to substantially perform the Executive’s duties with the Company (other than any such failure after the Executive gives notice of termination for “Good Reason”), which failure is not cured within 30 days after a written demand for substantial performance is received by the Executive from the Board of Directors of the Company which specifically identifies the manner in which the Board of Directors believes the Executive has not substantially performed the Executive’s duties, or (D) the failure by the Executive to perform his full-time duties with the Company by reason of his death or disabilitydisability or (E) the willful failure of Executive to cooperate with a bona fide internal investigation or an investigation by regulatory or law enforcement authorities, after being instructed by the Company to cooperate, or the willful destruction or failure to preserve documents or other materials known to be relevant to such investigation or the willful inducement of others to fail to cooperate or to produce documents or other materials; provided, however, that a Terminating Event shall not be deemed to have occurred pursuant to this Section 3(a) solely as a result of the Executive being an employee of any direct or indirect successor to the business or assets of the Company, rather than continuing as an employee of the Company following a Change in Control. For purposes of clauses (A), (C) and (CE) of this Section 3(a), 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 without reasonable belief that the Executive’s act, or failure to act, was in the best interests of the Company and its subsidiaries and affiliates. For purposes of clause (D) of this Section 3(a), Section 6 and Section 8(b) hereof, “disability” shall mean the Executive’s incapacity due to physical or mental illness which has caused the Executive to be absent from the full-time performance of his duties with the Company for a period of six (6) consecutive months if the Company shall have given the Executive a Notice of Termination and, within thirty (30) days after such Notice of Termination is given, the Executive shall not have returned to the full-time performance of his duties.

Terminating Event. A “Terminating Event” shall mean any of the events provided in this Section 3 occurring subsequent to a Change in Control as defined in Section 2: (a) termination by Notwithstanding anything to the Company contrary contained in this Agreement, upon the occurrence of the employment of the Executive with the Company for any reason other than (A) a willful act of dishonesty by the Executive Terminating Event with respect to any matter involving a Member, the Company or any subsidiary or affiliateMember shall immediately notify the Company, or and the Company, for one hundred and twenty (B120) conviction days after it first learns of such Terminating Event, may elect to purchase (the Executive of a crime involving moral turpitude, or (C“Repurchase Election Period”) the gross or willful failure by the Executive to substantially perform the Executivesuch Member’s duties with entire Membership Interest in the Company (other than any the “Withdrawal Interest”) from such failure after Member or such Member’s legal or personal representative(s) or successor(s) (as applicable) (individually and collectively, the Executive gives notice “Withdrawn Member”) for a price equal to the Fair Market Value of termination for the Withdrawal Interest (the “Good ReasonRedemption Price”). If the Company timely makes that election, which failure is the Company shall purchase from the Withdrawn Member, and the Withdrawn Member shall sell to the Company, the Withdrawal Interest at the Redemption Price and on the terms set forth in the next paragraph. If the Company does not cured within 30 days after a written demand for substantial performance is received by elect to purchase the Executive from Withdrawal Interest at the Redemption Price and on the terms set forth in the next paragraph, then, unless the Board of Directors determines otherwise, the Withdrawn Member, effective as of the occurrence of the Terminating Event, shall be and shall only have the rights of an unadmitted assignee under Section 4A-603 and Section 4A-604 of the Act. (b) The closing for any sale of a Withdrawal Interest of a Withdrawn Member, and purchase by the Company, shall take place at the Company’s principal office on the tenth Business Day following the end of the Repurchase Election Period. At the closing, (i) the Withdrawn Member shall assign and transfer to the Company which specifically identifies all right, title, and interest in and to the manner in which Withdrawal Interest (free and clear of all liens and encumbrances) and shall execute and deliver to the Company such other and further assurances as the Board of Directors believes may reasonably require to transfer to and vest the Executive has not substantially performed the Executive’s duties, or (D) the failure by the Executive to perform his full-time duties with the Company by reason of his death or disability; provided, however, that a Terminating Event shall not be deemed to have occurred pursuant to this Section 3(a) solely as a result of the Executive being an employee of any direct or indirect successor to the business or assets of Withdrawal Interest in the Company, rather than continuing as an employee of the Company following a Change in Control. For purposes of clauses (A) and (Cii) of this Section 3(a), 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 without reasonable belief that the Executive’s act, or failure to act, was in the best interests of the Company and its subsidiaries and affiliates. For purposes of clause (D) of this Section 3(a), Section 6 and Section 8(b) hereof, “disability” shall mean the Executive’s incapacity due to physical or mental illness which has caused the Executive to be absent from the full-time performance of his duties with the Company for a period of six (6) consecutive months if the Company shall have given pay the Executive a Notice of Termination and, within thirty (30) days after such Notice of Termination is given, the Executive shall not have returned to the full-time performance of his dutiesRedemption Price in cash.

Terminating Event. A “Terminating Event” shall mean any of the events provided in this Section 3 occurring subsequent to a Change in Control as defined in Section 2: (a) termination by the Company of the employment of the Executive with the Company for any reason other than (A) a willful act of dishonesty by the Executive with respect to any material matter involving the Company or any subsidiary or affiliate, or (B) conviction of the Executive of a crime involving moral turpitude, or (C) the gross or willful failure by the Executive to substantially perform the Executive’s duties with the Company (other than any such failure after the Executive gives notice of termination for “Good Reason”good reason), which failure is not cured within 30 days after a written demand for substantial performance is received by the Executive from the Board of Directors of the Company which specifically identifies the manner in which the Board of Directors believes the Executive has not substantially performed the Executive’s duties, ; or (D) the failure by the Executive to perform his her full-time duties with the Company by reason of his death her death, disability or disabilityretirement; provided, however, that a Terminating Event shall not be deemed to have occurred pursuant to this Section 3(a) solely as a result of the Executive being an employee of any direct or indirect successor to the business or assets of the Company, rather than continuing as an employee of the Company following a Change in Control. For purposes of clauses (A) and (C) of this Section 3(a), 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 without reasonable belief that the Executive’s act, or failure to act, was in the best interests interest of the Company and its subsidiaries and affiliates. For purposes of clause (D) of this Section 3(a), Section 6 and Section 8(b) hereof, “disability” shall mean the Executive’s incapacity due to physical or mental illness which has caused the Executive to be absent from the full-time performance of his her duties with the Company for a period of six (6) consecutive months if the Company shall have given the Executive a Notice of Termination (as hereinafter defined) and, within thirty (30) days after such Notice of Termination is given, the Executive shall not have returned to the full-time performance of his her duties.. For purposes of clause (D) of this Section 3(a) and Section 6, “retirement” shall mean termination of the Executive’s employment in accordance with the Company’s normal retirement policy, not including early retirement, generally applicable to its salaried employees, as in effect immediately prior to the Change in Control, or in accordance with any retirement arrangement established with respect to the Executive with the Executive’s express written consent;

Terminating Event. A “Terminating Event” shall mean the Executive’s first “separation from service” (within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)) that occurs in connection with or subsequent to a Change in Control and that occurs in connection with or subsequent to any of the events provided in this Section 3 occurring subsequent to a Change in Control as defined in Section 23: (a) termination by the Company of the Executive’s employment of the Executive with the Company for any reason other than (A) a willful act of dishonesty by the Executive with respect to any material matter involving the Company or any subsidiary or affiliate, ; or (B) conviction of the Executive of a crime involving moral turpitude, ; or (C) the gross or willful failure by the Executive to substantially perform the Executive’s duties with the Company (other than any such failure after the Executive gives notice of termination for “Good Reason”termination), which failure is not cured within 30 days after a written demand for substantial performance is received by the Executive from the Board of Directors of the Company which specifically identifies the manner in which the Board of Directors believes the Executive has not substantially performed the Executive’s duties, ; or (D) the failure by the Executive to perform his full-time duties with the Company by reason of his death death, disability or disabilityretirement; provided, however, that a Terminating Event shall not be deemed to have occurred pursuant to this Section 3(a) solely as a result of the Executive being an employee of any direct or indirect successor to the business or assets of the Company, rather than continuing as an employee of the Company following a Change in Control. For purposes of clauses (A) and (C) of this Section 3(a), 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 without reasonable belief that the Executive’s act, or failure to act, was in the best interests interest of the Company and its subsidiaries and affiliates. For purposes of clause (D) of this Section 3(a), Section 6 and Section 8(b) hereof, “disability” shall mean the Executive’s incapacity due to physical or mental illness which has caused the Executive to be absent from the full-time performance of his duties with the Company for a period of six (6) consecutive months if the Company shall have given the Executive a Notice of Termination and(as hereinafter defined)and, within thirty (30) 30 days after such Notice of Termination is given, the Executive shall not have returned to the full-time performance of his duties.. For purposes of clause (D) of this Section 3(a) and Section 6, “retirement” shall mean termination of the Executive’s employment in accordance with the Company’s normal retirement policy, not including early retirement, generally applicable to its salaried employees, as in effect immediately prior to the Change in Control, or in accordance with any retirement arrangement established with respect to the Executive with the Executive’s express written consent; or

Terminating Event. A “Terminating Eventevent” shall mean any of the events provided in this Section 3 2 occurring subsequent to a Change in Control as defined in Section 2: 1: (a) termination Termination by the Company of the employment of the Executive Employee with the Company for any reason other than (Ai) a willful act conviction of dishonesty the Employee of, or plea of guilty or nolo contendere by the Executive with respect to any matter involving Employee to, a felony, or (ii) dishonest acts against the Company or any subsidiary or affiliateof its subsidiaries, or (Biii) conviction willful gross misconduct which is likely to cause financial loss to the Company or any of its subsidiaries or to cause damage to the business reputation of the Executive Company or any of a crime involving moral turpitudeits subsidiaries, or (Civ) willful and repeated misconduct or gross neglect constituting bad faith in performing the gross or willful failure by the Executive to substantially perform the ExecutiveEmployee’s duties with the Company (other than any such failure after the Executive gives notice of termination for “Good Reason”), which failure is not cured within 30 days after a written demand for substantial performance is received by the Executive from the Board of Directors of the Company which specifically identifies the manner in which the Board of Directors believes the Executive has not substantially performed the Executive’s dutiesCompany, or (Dv) breach of fiduciary duty involving personal profit to the Employee or (vi) the failure by the Executive Employee to perform his full-time fulltime duties with the Company by reason of his death death, disability or disabilityretirement; provided, however, that a Terminating Event shall not be deemed to have occurred pursuant to this Section 3(a2(a) solely as a result of the Executive Employee being an employee of any direct or indirect successor to the business or assets of the Company, rather than continuing as an employee of the Company following a Change in Control. For purposes of clauses (Aiv) and (Cv) of this Section 3(a2(a), no actact , or failure to act, on the ExecutiveEmployee’s part shall be deemed “willful” unless done, or omitted to be done, by the Executive Employee without reasonable belief that the ExecutiveEmployee’s act, or failure to act, was in the best interests interest of the Company and any of its subsidiaries and affiliatessubsidiaries. For purposes of clause (Dvi) of this Section 3(a), Section 6 and Section 8(b2(a) hereof, “disability” shall mean the ExecutiveEmployee’s incapacity due to physical or mental illness which has caused the Executive Employee to be absent from unable to carry out the full-time performance of his duties with the Company for Company. Disagreement regarding a period determination of six (6) consecutive months if disability shall be subject to the certification of a qualified medical doctor agreed to by the Company shall have given and the Executive Employee, or, in the event of the Employee’s incapacity to designate a Notice of Termination and, within thirty (30) days after such Notice of Termination is givendoctor, the Executive Employee’s legal representative. In the absence of an agreement between the Company and the Employee in designating a doctor, each party shall not have returned nominate a qualified medical doctor, and the two doctors so nominated shall select a third doctor, who shall make the determination as to the full-time performance disability of his duties.the Employee. For purposes of clause (vi) of this Section 2(a) “retirement” shall mean termination of the Employee’s employment in accordance with the Company’s retirement policy, not including early retirement, generally applicable to its salaried employees, as in effect immediately prior to the Change in Control, or in accordance with any retirement arrangement established with respect to the Employee with the Employee’s express written consent;