Common use of For Cause During the Change of Control Protection Period Clause in Contracts

For Cause During the Change of Control Protection Period. This Section 2.03(b) shall apply during the Change of Control Protection Period. The Company may terminate Executive’s employment during the Change of Control Protection Period for cause. During the Change of Control Protection Period “cause” means: (i) the willful and continued failure of Executive to perform substantially Executive’s duties with the Company or any company controlled by, controlling or under common control with the Company (“Affiliated Company”) (other than any such failure resulting from incapacity due to physical or mental illness or following Executive’s delivery of a notice of termination pursuant to Section 2.06(b)), after a written demand for substantial performance is delivered to Executive by the Board of Directors or the President of the Company that specifically identifies the manner in which the Board of Directors or the President of the Company believes that Executive has not substantially performed Executive’s duties, or (ii) the willful engaging by Executive in illegal conduct or gross misconduct that is materially and demonstrably injurious to the Company. For purposes of this Section 2.03(b), no act, or failure to act, on the part of Executive shall be considered “willful” unless it is done, or omitted to be done, by Executive in bad faith or without reasonable belief that Executive’s action or omission was in the best interests of the Company. Any act, or failure to act, based upon authority (A) given pursuant to a resolution duly adopted by the Board of Directors, or if the Company is not the ultimate parent corporation and is not publicly-traded, the board of directors of the ultimate parent of the Company (the “Applicable Board”), (B) upon the instructions of the President of the Company or (C) based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by Executive in good faith and in the best interests of the Company. The cessation of employment of Executive shall not be deemed to be for cause unless and until there shall have been delivered to Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the independent directors of the Applicable Board (excluding Executive, if Executive is a member of the Applicable Board) at a meeting of the Applicable Board called and held for such purpose (after reasonable notice is provided to Executive and Executive is given an opportunity, together with counsel for Executive, to be heard before the Applicable Board), finding that, in the good faith opinion of the Applicable Board, Executive is guilty of the conduct described in Section 2.03(b)(i) or 2.03(b)(ii), and specifying the particulars thereof in detail. Upon delivery to Executive of a notice of termination pursuant to this Section 2.03(b), together with payment of any salary accrued and unpaid under Section 1.03 hereof, Executive’s employment and all obligations of the Company under Articles I and II hereof shall forthwith terminate. The obligations of Executive under Article IV hereof shall continue notwithstanding termination of Executive’s employment pursuant to this Section 2.03(b).

For Cause During the Change of Control Protection Period. This Section 2.03(b) shall apply during the Change of Control Protection Period. The Company may terminate Executive’s employment during the Change of Control Protection Period for cause. During the Change of Control Protection Period “cause” means: (i) the willful and continued failure of Executive to perform substantially Executive’s duties with the Company or any company controlled by, controlling or under common control with the Company (“Affiliated Company”) (other than any such failure resulting from incapacity due to physical or mental illness or following Executive’s delivery of a notice of termination pursuant to Section 2.06(b)), after a written demand for substantial performance is delivered to Executive by the Board of Directors or the President of the Company that specifically identifies the manner in which the Board of Directors or the President of the Company believes that Executive has not substantially performed Executive’s duties, or (ii) the willful engaging by Executive in illegal conduct or gross misconduct that is materially and demonstrably injurious to the Company. For purposes of this Section 2.03(b), no act, or failure to act, on the part of Executive shall be considered “willful” unless it is done, or omitted to be done, by Executive in bad faith or without reasonable belief that Executive’s action or omission was in the best interests of the Company. Any act, or failure to act, based upon authority (A) given pursuant to a resolution duly adopted by the Board of Directors, or if the Company is not the ultimate parent corporation and is not publicly-traded, the board of directors of the ultimate parent of the Company (the “Applicable Board”), ((B) upon the instructions of the President of the Company or (C) based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by Executive in good faith and in the best interests of the Company. The cessation of employment of Executive shall not be deemed to be for cause unless and until there shall have been delivered to Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the independent directors of the Applicable Board (excluding Executive, if Executive is a member of the Applicable Board) at a meeting of the Applicable Board called and held for such purpose (after reasonable notice is provided to Executive and Executive is given an opportunity, together with counsel for Executive, to be heard before the Applicable Board), finding that, in the good faith opinion of the Applicable Board, Executive is guilty of the conduct described in Section 2.03(b)(i) or 2.03(b)(ii), and specifying the particulars thereof in detail. Upon delivery to Executive of a notice of termination pursuant to this Section 2.03(b), together with payment of any salary accrued and unpaid under Section 1.03 hereof, Executive’s employment and all obligations of the Company under Articles I and II hereof shall forthwith terminate. The obligations of Executive under Article IV hereof shall continue notwithstanding termination of Executive’s employment pursuant to this Section 2.03(b).