IN A LUMP SUM NOT LATER THAN THIRTY
(30) BUSINESS DAYS AFTER SUCH CHANGE IN CONTROL PAYMENT IS PROVIDED TO THE
EXECUTIVE.
IN THE EVENT THAT THE GROSS UP AMOUNT IS LESS THAN THE AMOUNT
ACTUALLY DUE TO THE EXECUTIVE UNDER THIS SECTION 6.4, THE AMOUNT OF ANY SUCH
SHORTFALL SHALL BE PAID TO THE EXECUTIVE WITHIN TEN (10) DAYS AFTER THE
EXISTENCE OF THE SHORTFALL IS DISCOVERED.
IN THE EVENT THE GROSS UP AMOUNT IS
MORE THAN THE AMOUNT ACTUALLY DUE THE EXECUTIVE UNDER THIS SECTION 6.4, THE
EXECUTIVE SHALL REPAY THE AMOUNT OF SUCH OVERPAYMENT TO THE COMPANY WITHIN A
REASONABLE TIME AFTER THE OVERPAYMENT IS DISCOVERED.
6.5
THE SEVERANCE PAYMENTS AND OTHER BENEFITS
PROVIDED FOR IN THIS SECTION 6 ARE IN ADDITION TO ANY OTHER PAYMENTS OR BENEFITS
ARISING UPON A CHANGE OF CONTROL UNDER ANY OTHER AGREEMENT OR PLAN, PROGRAM OR
ARRANGEMENT MAINTAINED BY THE COMPANY OTHER THAN THE POST-TERMINATION PAYMENTS
DESCRIBED IN SECTION 5.3.
6.6
IN RETURN FOR THE SEVERANCE PAYMENTS AND
OTHER BENEFITS PROVIDED FOR IN THIS SECTION 6, THE EXECUTIVE AGREES TO EXECUTE
THE RELEASE AND WAIVER IN THE FORM ATTACHED AS EXHIBIT A HERETO, SAID RELEASE
AND WAIVER TO INCLUDE, WITHOUT LIMITATION, CLAIMS PURSUANT TO THE AGE
DISCRIMINATION IN EMPLOYMENT ACT AND ALL OTHER CLAIMS, INCLUDING CLAIMS UNDER
FEDERAL AND/OR STATE LAW, ARISING OUT OF OR RELATING TO THE EXECUTIVE'S HIRING,
EMPLOYMENT, OR TERMINATION OF EMPLOYMENT.
FOR A PERIOD OF SEVEN DAYS AFTER THE
EXECUTIVE HAS EXECUTED SUCH RELEASE AND WAIVER, THE EXECUTIVE MAY REVOKE THE
RELEASE AND WAIVER.
THE RELEASE AND WAIVER SHALL BECOME EFFECTIVE, AND THE
SEVERANCE PAYMENTS AND OTHER BENEFITS PROVIDED FOR IN THIS SECTION 6 SHALL
BECOME DUE, ONLY UPON THE EXPIRATION OF THE SEVEN-DAY REVOCATION PERIOD WITHOUT
REVOCATION OF THE RELEASE AND WAIVER BY THE EXECUTIVE.
NOTWITHSTANDING THE
FOREGOING, THE COMPANY AND THE EXECUTIVE AGREE THAT THE TERMS OF THIS AGREEMENT
SHALL SURVIVE THE RELEASE AND WAIVER AND THAT CLAIMS TO ENFORCE THE TERMS OF
THIS AGREEMENT ARE NOT DISCHARGED BY THE RELEASE AND WAIVER.
5
7.
TERMINATION PROCEDURES AND COMPENSATION
DURING DISPUTE.
7.1
NOTICE OF TERMINATION. AFTER A CHANGE IN
CONTROL AND DURING THE TERM OF THIS AGREEMENT, ANY PURPORTED TERMINATION OF THE
EXECUTIVE'S EMPLOYMENT (OTHER THAN BY REASON OF DEATH) SHALL BE COMMUNICATED BY
WRITTEN NOTICE OF TERMINATION FROM ONE PARTY HERETO TO THE OTHER PARTY HERETO IN
ACCORDANCE WITH SECTION 10 HEREOF. FOR PURPOSES OF THIS AGREEMENT, A "NOTICE OF
TERMINATION" SHALL MEAN A NOTICE WHICH INDICATES THE SPECIFIC TERMINATION
PROVISION IN THIS AGREEMENT RELIED UPON AND SETS FORTH IN REASONABLE DETAIL THE
FACTS AND CIRCUMSTANCES CLAIMED TO PROVIDE A BASIS FOR TERMINATION OF THE
EXECUTIVE'S EMPLOYMENT UNDER THE PROVISION SO INDICATED. FURTHER, A NOTICE OF
TERMINATION FOR CAUSE MUST INCLUDE A COPY OF A RESOLUTION DULY ADOPTED BY THE
AFFIRMATIVE VOTE OF NOT LESS THAN TWO-THIRDS OF THE ENTIRE MEMBERSHIP OF THE
BOARD AT A MEETING OF THE BOARD WHICH WAS CALLED AND HELD FOR THE PURPOSE OF
CONSIDERING SUCH TERMINATION (AFTER