election or nomination for election was previously so approved, cease for any
reason to constitute at least a majority of the Board of Directors.
(IV)
FOR PURPOSES OF THIS SECTION 5(E) A TERMINATION SHALL BE
CONSIDERED "IN ANTICIPATION OF A CHANGE IN CONTROL" (A) IF THE TERMINATION
OCCURS AFTER:
(1) THE ISSUANCE OF A PROXY STATEMENT BY THE COMPANY WITH RESPECT
TO AN ELECTION OF DIRECTORS FOR WHICH THERE IS PROPOSED ONE OR MORE DIRECTORS
WHO ARE NOT RECOMMENDED BY THE BOARD OF DIRECTORS OR ITS NOMINATING COMMITTEE
WHERE THE ELECTION OF SUCH PROPOSED DIRECTOR OR DIRECTORS WOULD RESULT IN A
CHANGE IN CONTROL OR (2) THE ANNOUNCEMENT BY ANY PERSON OF AN INTENTION TO TAKE
ACTIONS WHICH MIGHT REASONABLY RESULT IN A CHANGE IN CONTROL; AND (B) THE CHANGE
IN CONTROL ACTUALLY OCCURS WITHIN SIX (6) MONTHS AFTER THE TERMINATION UNLESS
THE RELEVANT FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT THE POSSIBILITY
THAT A CHANGE IN CONTROL WAS REMOTE AS OF THE DATE OF SUCH TERMINATION.
(F)
TIMING OF CERTAIN PAYMENTS UNDER SECTION 5.
UNLESS OTHERWISE
EXPRESSLY PROVIDED IN THIS SECTION 5(F) OR IN THE OTHER PROVISIONS OF THIS
AGREEMENT, ALL PAYMENTS PURSUANT TO THIS SECTION 5 SHALL BE MADE AS SOON AS
PRACTICABLE AFTER THE TERMINATION DATE BUT IN NO EVENT LATER THAN 30 DAYS AFTER
THE TERMINATION DATE; PROVIDED, HOWEVER, THAT IF NECESSARY TO COMPLY WITH
SECTION 409A(A)(2)(B)(I) OF THE CODE, AND APPLICABLE ADMINISTRATIVE GUIDANCE AND
REGULATIONS, A PAYMENT PURSUANT TO SECTION 5(A)(IV), 5(D)(II), 5(D)(III),
5(D)(VI), 5(D)(VII) OR 5(E)(I) SHALL BE MADE IN A LUMP SUM ON THE DATE THAT IS
SIX MONTHS PLUS ONE DAY FOLLOWING THE TERMINATION DATE.
(G)
NO OBLIGATION TO MITIGATE.
EXECUTIVE SHALL NOT BE REQUIRED TO
SEEK OTHER EMPLOYMENT OR OTHERWISE TO MITIGATE EXECUTIVE'S DAMAGES UPON ANY
TERMINATION OF EMPLOYMENT; PROVIDED, HOWEVER, THAT, TO THE EXTENT EXECUTIVE
RECEIVES FROM A SUBSEQUENT EMPLOYER HEALTH OR OTHER INSURANCE BENEFITS
SUBSTANTIALLY SIMILAR TO THE BENEFITS REFERRED TO IN SECTION 4, ANY SUCH
BENEFITS TO BE PROVIDED BY THE COMPANY TO EXECUTIVE FOLLOWING THE TERMINATION OF
HIS EMPLOYMENT SHALL BE CORRESPONDINGLY REDUCED.
19
(H)
SET-OFF.
AMOUNTS REQUIRED TO BE PAID BY THE COMPANY TO EXECUTIVE
PURSUANT TO THIS AGREEMENT SHALL NOT BE SUBJECT TO OFFSET WITH RESPECT TO ANY
AMOUNTS EXECUTIVE OTHERWISE OWES THE COMPANY EXCEPT FOR ANY AMOUNTS THAT ARE
OWED TO THE COMPANY BY EXECUTIVE DUE TO HIS RECEIPT OF FUNDS AS A RESULT OF HIS
FRAUDULENT ACTIVITY.
(I)
NO OTHER BENEFITS OR COMPENSATION.
EXCEPT AS MAY BE PROVIDED
UNDER THIS AGREEMENT, UNDER ANY OTHER WRITTEN AGREEMENT BETWEEN EXECUTIVE AND
THE COMPANY, OR UNDER THE TERMS OF ANY PLAN OR POLICY APPLICABLE TO EXECUTIVE,
EXECUTIVE SHALL HAVE NO RIGHT TO RECEIVE ANY OTHER COMPENSATION FROM THE
COMPANY, OR TO PARTICIPATE IN ANY OTHER PLAN, ARRANGEMENT OR BENEFIT PROVIDED BY
THE COMPANY, WITH RESPECT TO ANY FUTURE PERIOD AFTER SUCH TERMINATION OR
RESIGNATION.
(J)
RELEASE OF EMPLOYMENT CLAIMS; COMPLIANCE WITH SECTION 6.
EXECUTIVE AGREES, AS A CONDITION TO RECEIPT OF ANY TERMINATION PAYMENTS AND
BENEFITS