No Liability for Election of Recommended Directors No Stockholder, nor any Affiliate of any Stockholder, shall have any liability as a result of designating a person for election as a director for any act or omission by such designated person in his or her capacity as a director of the Company, nor shall any Stockholder have any liability as a result of voting for any such designee in accordance with the provisions of this Agreement.
No Personal Liability of Directors, Officers, Employees and Stockholders No past, present or future director, officer, employee, incorporator or stockholder of the Company, as such, will have any liability for any obligations of the Company under the Indenture or the Notes or for any claim based on, in respect of, or by reason of, such obligations or their creation. By accepting any Note, each Holder waives and releases all such liability. Such waiver and release are part of the consideration for the issuance of the Notes.
By the Company for Cause The Company may terminate the Executive’s employment and the Period of Agreement immediately for “Cause.” For purposes of this Agreement, “Cause” means (i) the commission of (x) a felony or (y) a misdemeanor (excluding a ▇▇▇▇▇ misdemeanor) involving dishonesty, fraud, financial impropriety, or moral turpitude; (ii) any knowing or deliberate violation of a requirement of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or other material provision of the federal securities laws; (iii) willful neglect or willful misconduct in the discharge of the Executive’s duties (after receiving written notice from the Board specifying the manner in which the Executive is alleged to have willfully failed properly to discharge the Executive’s duties and after having had the opportunity to cure such failure within thirty (30) days from receipt of such notice), (iv) any willful conduct that could reasonably be anticipated to result in or materially contribute to (whether by act or by omission to act) a violation by the Company of the Permanent Injunction dated November 26, 2002 (the “Permanent Injunction”) or other orders binding on the Company issued by the ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇. Rakoff of the U.S. District Court of the Southern District of New York (the “Court”), or (v) material breach by the Executive of this Agreement, including any of the covenants contained herein. In the event that the Company asserts that grounds exist for termination with Cause, prior to such termination, it shall so notify the Executive and within fifteen (15) days shall afford the Executive a hearing before the Board regarding any disputed facts. The Board shall make a final determination regarding the existence of “Cause” upon completion of any such hearing, provided, however, that any determination that “Cause” exists shall require an affirmative vote of two-thirds (2/3) of the non-employee directors of the Company. If any such determination remains pending after such fifteen (15)-day period, the Company shall be entitled to suspend the Executive’s duties (with full pay) pending determination of the existence of “Cause”; provided that such period of suspension shall not exceed thirty (30) days. The Executive’s acts or omissions shall not be “willful” if conducted in good faith and with a reasonable belief that such conduct was in the best interests of the Company.
Merger Without Meeting of Stockholders Notwithstanding Section 2.8, in the event that Parent, the Purchaser and the Parent Subsidiaries shall acquire and then hold at least 90% of the outstanding Shares pursuant to the Offer or otherwise, the parties hereto agree to take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the acceptance for payment of and payment for Shares by the Purchaser pursuant to the Offer without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL.
By Company for Cause Company may terminate this Agreement and Executive’s employment at any time for Cause. Notwithstanding the foregoing provisions of this Section 5, in the event Executive’s employment is terminated because of Cause, Company shall have no obligations pursuant to this Agreement after the Date of Termination other than for Base Compensation accrued but unpaid through the Date of Termination (defined by Section 5(f) below) and reimbursement of business expenses properly incurred but unreimbursed (to the extent reimbursable) prior to Date of Termination. For purposes herein, “Cause” means (A) Executive’s gross negligence, gross neglect or willful misconduct in the performance of the duties required hereunder that results in a material adverse effect on Company, (B) Executive’s conviction for, deferred adjudication of, or plea of no contest or nolo contendere to a felony, or (C) Executive’s material breach of any material provision of this Agreement. Notwithstanding the foregoing, prior to any termination for Cause under clauses (A) or (C) of the preceding sentence, (X) Company must provide Executive with reasonable notice of not less than ten (10) business days detailing the failure or conduct on which the termination is to be based, (Y) Company must provide Executive a reasonable opportunity to cure such failure or conduct, and (Z) after such notice and an opportunity to cure, the Board must reasonably determine that Executive has not cured such failure or conduct. Executive shall not be deemed to have been terminated for Cause unless and until Executive has been provided an opportunity to be heard in person by the Board (with the assistance of Executive’s counsel if Executive so desires) on at least five business days’ advance notice, and the Board must unanimously approve the termination of Executive for Cause.