DETERMINES NOT TO CONTEST SUCH CLAIM, THEN THE COMPANY SHALL
IMMEDIATELY PAY TO THE EXECUTIVE THE PORTION OF SUCH CLAIM, IF ANY, WHICH IT HAS
NOT PREVIOUSLY PAID TO THE EXECUTIVE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN, THE PROVISIONS OF SECTION 7 OF THE ORIGINAL AGREEMENT (WITH RESPECT TO
EXCISE TAX GROSS UPS) SHALL APPLY WITH RESPECT TO THE PAYMENT OF THE FIRST
SIGNING BONUS PAYMENT, SECOND SIGNING BONUS PAYMENT AND ANY OTHER PAYMENTS OR
BENEFITS, WHETHER PURSUANT TO THIS AGREEMENT OR OTHERWISE, THAT MAY BE
CONTINGENT UPON THE OCCURRENCE OF THE CLOSING UNDER THE MERGER AGREEMENT.
7.6
NO DUTY TO MITIGATE LOSSES; NO RIGHT OF OFFSET.
THE EXECUTIVE
SHALL HAVE NO DUTY TO FIND NEW EMPLOYMENT FOLLOWING THE TERMINATION OF HIS
EMPLOYMENT UNDER CIRCUMSTANCES WHICH REQUIRE THE COMPANY TO PROVIDE THE
TERMINATION BENEFITS TO THE EXECUTIVE PURSUANT TO THIS ARTICLE 7.
ANY SALARY OR
REMUNERATION RECEIVED BY THE EXECUTIVE FROM A THIRD PARTY FOR THE PROVIDING OF
PERSONAL SERVICES (WHETHER BY EMPLOYMENT OR BY FUNCTIONING AS AN INDEPENDENT
CONTRACTOR) FOLLOWING THE TERMINATION OF HIS EMPLOYMENT SHALL NOT REDUCE THE
COMPANY'S OBLIGATION (IF ANY) TO PROVIDE THE TERMINATION BENEFITS (OR THE AMOUNT
OF SUCH BENEFITS) PURSUANT TO THE TERMS OF THIS ARTICLE 7.
THE COMPANY'S
OBLIGATION TO MAKE THE PAYMENTS PROVIDED FOR IN THIS AGREEMENT AND OTHERWISE TO
PERFORM ITS OBLIGATIONS HEREUNDER SHALL NOT BE AFFECTED BY ANY SET-OFF,
COUNTERCLAIM, RECOUPMENT, DEFENSE OR OTHER CLAIM, RIGHT OR ACTION WHICH THE
COMPANY MAY HAVE AGAINST THE EXECUTIVE OR OTHERS; PROVIDED, HOWEVER, THAT THE
COMPANY MAY OFFSET AGAINST PAYMENTS PROVIDED FOR IN THIS AGREEMENT (OTHER THAN
PAYMENTS PURSUANT TO SECTION 3.2) THE AMOUNT OF THE EXECUTIVE'S OBLIGATION TO
THE COMPANY, IF ANY, FOR OUTSTANDING LOANS, TRAVEL ADVANCES, COMPANY CREDIT CARD
OBLIGATIONS AND ANY OTHER SIMILAR AMOUNTS OWED BY THE EXECUTIVE TO THE COMPANY.
PAYMENTS OF TERMINATION BENEFITS PURSUANT TO THIS AGREEMENT SHALL BE IN LIEU OF
AND NOT IN ADDITION TO SEVERANCE OR SEPARATION PAY BENEFITS FOR WHICH THE
EXECUTIVE MIGHT OTHERWISE BECOME ELIGIBLE UNDER ANY OTHER AGREEMENT, PLAN OR
POLICY OF THE COMPANY OR ANY OF ITS AFFILIATES OR ANY STATUTORY BENEFITS
PURSUANT TO THE WORKERS ADJUSTMENT AND RETRAINING NOTIFICATION ACT OR SIMILAR
STATUTE, IF APPLICABLE.
7.7
LIQUIDATED DAMAGES.
IN LIGHT OF THE DIFFICULTIES IN ESTIMATING
THE DAMAGES FOR AN EARLY TERMINATION OF THIS AGREEMENT, THE COMPANY AND THE
EXECUTIVE HEREBY AGREE THAT THE TERMINATION BENEFITS, IF ANY, TO BE RECEIVED BY
THE EXECUTIVE PURSUANT TO THIS ARTICLE 7 SHALL BE RECEIVED BY THE EXECUTIVE AS
LIQUIDATED DAMAGES.
ARTICLE 8
MISCELLANEOUS
8.1
CERTAIN DEFINITIONS.
AS USED IN THIS AGREEMENT, THE FOLLOWING
CAPITALIZED TERMS SHALL HAVE THE MEANINGS ASSIGNED BELOW:
"2006 LTIP Restricted Stock Award" means the award of restricted shares of
common stock of the Company pursuant to that certain Restricted Share Award
Agreement dated October 6, 2006 by and between the Company and the Executive.
11
"Change in Employment Terms" means the occurrence, within the term of this
Agreement, of any of the following without the Executive's prior written