6.4 SHALL BE PAID TO THE
EXECUTIVE 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