Common use of Code Section 280G Clause in Contracts

Code Section 280G. (i) Notwithstanding anything in this Agreement to the contrary, in the event that any severance and other benefits provided to or for the benefit of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control Arrangements”) constitute “parachute payments” within the meaning of Section 280G(b)(2) of the Code (such severance and other benefits being referred to herein as the “Change of Control Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes. (ii) Unless the Employer and the Employee otherwise agree in writing, any determination required under this Section 8(e) shall be made in writing by tax counsel or by an independent public accounting firm agreed to by the Employer and the Employee (the “Auditor”), whose determination shall be conclusive and binding upon the Employer and the Employee. For purposes of making the calculations required by this Section 8(e), the Auditor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Employer and the Employee shall furnish to the Auditor such information and documents as the Auditor may reasonably request in order to make a determination under this Section 8(e). The Employer shall bear all costs the Auditor may reasonably incur in connection with any calculations contemplated by this Section 8(e).

Code Section 280G. (a) If there is a change of ownership or effective control or change in the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G of the Code) (a “280G Change in Control”) and any payment or benefit (including payments and benefits pursuant to this Agreement) that the Executive would receive from the Company or otherwise (a “Transaction Payment”) would (i) Notwithstanding anything in this Agreement to the contrary, in the event that any severance and other benefits provided to or for the benefit of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control Arrangements”) constitute a “parachute paymentspayment” within the meaning of Section 280G(b)(2) 280G of the Code and (such severance and other benefits being referred to herein as the “Change of Control Payments”ii) that would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is availableCompany shall cause to be determined, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) before any amounts of the Code and Transaction Payment are paid to the regulations promulgated thereunder; Executive, which of the following two alternative forms of payment would result in the Executive’s receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that all or (ii) if some portion of the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then Transaction Payment may be subject to the Employer will provide the Employee with a computation of Excise Tax: (A) payment in full of the maximum entire amount of Change the Transaction Payment (a “Full Payment”), or (B) payment of Control Payments only a part of the Transaction Payment so that could be made under the Change of Control Arrangements, Executive receives the largest payment possible without the imposition of the Excise Tax (said a “Reduced Payment”, and Executive shall be entitled to payment of whichever amount that shall result in a greater after-tax amount for Executive. For purposes of determining whether to make a Full Payment or a Reduced Payment, the Company shall cause to be taken into account all applicable federal, state and local income and employment taxes and the Excise Tax (all computed at the highest applicable marginal rate reasonably applicable to Executive, net of the maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that reduction in federal income taxes which could be made pursuant to obtained from a deduction of such state and local taxes). If a Reduced Payment is made, the terms of reduction in payments and/or benefits will occur in the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by following order: (1) the amount first, reduction of the Excise Taxcash payments, in reverse order of scheduled payment date (or if necessary, to zero), (2) then, reduction of non-cash and non-equity benefits provided to the estimated income taxes payable by the Employee Executive, on the difference between the Uncapped Payments and the Capped Amounta pro rata basis (or if necessary, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, to zero) and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) then, cancellation of the Code (acceleration of vesting of equity award compensation in the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment reverse order of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right date of additional payment from any grant of the Related Parties as reimbursement for such taxesExecutive’s equity awards. (iib) Unless the Employer Executive and the Employee Company otherwise agree in writing, any determination required under this Section 8(e) section shall be made in writing by tax counsel or by an independent public a nationally recognized accounting firm agreed to selected by the Employer and Company subject to the Employee approval of the Executive which shall not be unreasonably withheld (the “AuditorAccountants”), whose determination shall be conclusive and binding upon the Employer Executive and the EmployeeCompany for all purposes absent manifest error. For purposes of making the calculations required by this Section 8(e)section, the Auditor Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. Without limiting the generality of the foregoing, any determination by the Accountants under this Section 13.12(b) will take into account the value of any reasonable compensation for services to be rendered by the Executive (or for holding oneself out as available to perform services and refraining from performing services (such as under a covenant not to compete)). The Employer Accountants shall provide detailed supporting calculations to the Company and the Employee Executive as requested by the Company or the Executive. The Executive and the Company shall furnish to the Auditor Accountants such information and documents as the Auditor Accountants may reasonably request in order to make a determination under this Section 8(e)section. The Employer Company shall bear all costs the Auditor Accountants may reasonably incur in connection with any calculations contemplated by this Section 8(e)section as well as any costs incurred by the Executive with the Accountants for tax planning under Sections 280G and 4999 of the Code.

Code Section 280G. (i) Notwithstanding anything in this Agreement any provision of the Plan to the contrary, if any payments or benefits the Executive would receive from the Company under this Agreement or otherwise in the event that any severance and other benefits provided to or for the benefit connection with a change in ownership (as defined under Section 280G(b)(2) of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties Code) (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control ArrangementsTotal Payments”) (a) constitute “parachute payments” within the meaning of Section 280G(b)(2) 280G of the Code Code, and (such severance and other benefits being referred to herein as the “Change of Control Payments”b) that but for this Section 20(c), would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”)Code, then such Executive will be entitled to receive either (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) full amount of the Code and the regulations promulgated thereunder; Total Payments or (ii) if a portion of the shareholder approval exemption set forth Total Payments having a value equal to $1 less than three (3) times such individual’s “base amount” (as such term is defined in Section 280G(b)(5280G(b)(3)(A) is not availableof the Code), then the Employer will provide the Employee with a computation whichever of (Ai) and (ii), after taking into account applicable federal, state, and local income taxes and the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to excise tax imposed by Section 4999 of the Code as a result of Code, results in the receipt by such employee on an after-tax basis, of the Uncapped Payments; and (D) the net value greatest portion of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Total Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes. (ii) Unless the Employer and the Employee otherwise agree in writing, any Any determination required under this Section 8(e20(c) shall be made in writing by the Company’s independent certified public accountants appointed prior to any change in ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel or selected by an independent public accounting firm agreed to by the Employer and the Employee such accountants (the “AuditorAccountants”), whose determination shall be conclusive and binding for all purposes upon the Employer and the Employeeapplicable Executive. For purposes of making the calculations required by this Section 8(e20(c), the Auditor Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Employer If there is a reduction pursuant to this Section 20(c) of the Total Payments to be delivered to the applicable Executive, the payment reduction contemplated by the preceding sentence shall be implemented by determining the “Parachute Payment Ratio” (as defined below) for each “parachute payment” and then reducing the “parachute payments” in order beginning with the “parachute payment” with the highest Parachute Payment Ratio. For “parachute payments” with the same Parachute Payment Ratio, such “parachute payments” shall be reduced based on the time of payment of such “parachute payments,” with amounts having later payment dates being reduced first. For “parachute payments” with the same Parachute Payment Ratio and the Employee same time of payment, such “parachute payments” shall furnish be reduced on a pro rata basis (but not below zero) prior to reducing “parachute payments” with a lower Parachute Payment Ratio. For purposes hereof, the Auditor term “Parachute Payment Ratio” shall mean a fraction the numerator of which is the value of the applicable “parachute payment” for purposes of Section 280G of the Code and the denominator of which is the actual present value of such information and documents as the Auditor may reasonably request in order to make a determination under this Section 8(e). The Employer shall bear all costs the Auditor may reasonably incur in connection with any calculations contemplated by this Section 8(e)payment.

Code Section 280G. (i) Notwithstanding anything to the contrary in this Agreement to the contraryAgreement, in the event it shall be determined that any severance and other benefits provided payment or distribution made, or benefit or entitlements provided, by the Company or any entity effecting a Change in Control to or for the benefit of the Employee Executive under Article II or his legal representatives and dependents Article III or otherwise (whether paid or payable or distributed or distributable or provided pursuant to this Agreement and the terms hereof or otherwise) or under any other agreement, benefit, plan, plan or policy of the Related Parties Company or any entity effecting a Change in Control (including but not limited to any bonus plan in effect from time to time) (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of in Control Arrangements”) would constitute a “parachute paymentspayment” within the meaning of as defined in Code Section 280G(b)(2) of the Code 280G (such severance and payments, distributions, or other benefits being referred to herein as the “Change of Control Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee Company shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee Executive with a computation of (Ai) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangementsmade, without the imposition of the Excise Tax excise tax imposed by Code Section 4999, under the Change in Control Arrangements (said maximum amount being referred to as the “Capped AmountAmounts”); (Bii) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of in Control Arrangements (all said payments, distributions and benefits being referred to herein as the “Uncapped Payments”); (Ciii) the dollar amount of Excise Tax excise tax (if any) which the Employee Executive would become obligated to pay pursuant to Code Section 4999 of the Code as a result of receipt of the Uncapped PaymentsPayments (the “Excise Tax Amount”); and (Div) the net value of the Uncapped Payments after reduction by (1a) the amount of the Excise Tax, Tax Amount; (2b) the estimated income taxes payable by the Employee Executive on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee Executive is paying the highest marginal tax rate for state, local and federal income taxes, ; and (3c) the estimated hospital insurance taxes payable by the Employee Executive on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Code Section 3101(b) of the Code 3101 (the “Net Uncapped Amount”). . (ii) If the Capped Amount is greater than the Net Uncapped Amount, the Employee Executive shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, Amount the Employee Executive shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If To arrive at the Employee receives the Uncapped PaymentsCapped Amount, then the Employee cash payments shall be solely responsible for reduced before equity-based compensation or other non-cash compensation or benefits, in each case in reverse order beginning with payments or benefits that are to be paid the payment furthest in time from consummation of the Excise Tax due from transaction that is subject to Code Section 280G, provided that, in the Employee case of all the foregoing payments, compensation and attributable benefits, all amounts that are not subject to such Uncapped Paymentscalculation under Treas. Reg. §1.280G-1, with Q&A-24(b) or (c) shall be reduced before any amount that are subject to calculation under Treas. Reg. §1.280G-1, Q&A-24(b) or (c) as would result in no right of additional payment from any portion of the Related Parties as reimbursement for such taxes.payments, compensation or benefits being considered “excess parachute payments” under Code Section 280G. All reductions hereunder shall also be done in a manner which complies with Code Section 409A. (iiiii) Unless the Employer and the Employee otherwise agree in writing, any Any determination required under this Section 8(e) Article V.C. shall be made in writing by tax counsel or by an independent public accounting firm accountants mutually agreed to by the Employer Company and the Employee Executive (the “AuditorAccountants”), whose determination shall be conclusive and binding upon the Employer Executive and the EmployeeCompany for all purposes. For purposes of making the calculations required by this Section 8(e)Article V.C., the Auditor Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999 of the Code4999. The Employer Company and the Employee Executive shall furnish to the Auditor Accountants such information and documents as the Auditor Accountants may reasonably request in order to make a determination the determinations under this Section 8(e). Article V.C. The Employer Company shall bear all costs the Auditor Accountants may reasonably incur in connection with any calculations contemplated by this Section 8(e).Article V.C.

Code Section 280G. (i) Notwithstanding anything in this Agreement to the contrary, in In the event the Company (or its successor) and Executive agree, based on the advice of an independent nationally recognized public accounting firm engaged by the Company, that any severance and other part or all of the consideration, compensation or benefits provided to be paid to or for the benefit of the Employee or his legal representatives and dependents pursuant to Executive under this Agreement and any other agreement, benefit, plan, or policy of the Related Parties (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control Arrangements”) constitute “"parachute payments” within the meaning of " under Section 280G(b)(2) of the Code (such severance and other benefits being referred to herein as the “Change of Control Payments”) that would be subject to the excise tax imposed by "Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”280G"), then either (ia) or (b) below shall apply. (a) Except as provided in Section 21(b), if the shareholder approval exemption set forth aggregate present value of such parachute payments, singularly or together with the aggregate present value of any consideration, compensation or benefits to be paid to or for the benefit of Executive under any other plan, arrangement or agreement which constitute "parachute payments", calculated as provided under Section 280G, (collectively, the "Parachute Amount") exceeds 2.99 times Executive's "base amount", as defined in Section 280G(b)(5280G(b)(3) (the "Base Amount"), the amounts constituting "parachute payments" that would otherwise be payable to Executive or for Executive's benefit shall be reduced to the extent necessary so that the Parachute Amount is availableequal to 2.99 times the Base Amount (the "Reduced Amount"). (b) The Parachute Amount shall not be reduced as provided in Section 21(a) if, then based on the Employer advice of such public accounting firm, without such reduction Executive would be entitled to receive and the Employee shall take all steps necessaryretain, on a net after-tax basis (including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the after imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to any excise taxes payable under Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the Code), an amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount which is greater than the Net Uncapped amount, on a net after-tax basis, that Executive would be entitled to retain upon receipt of the Reduced Amount. If the determination made above results in a reduction under Section 21(a) of the payments that would otherwise be paid to or for the benefit of Executive, the Employee such reduction in payments shall be first applied to reduce any cash severance payments that Executive would otherwise be entitled to receive or commence hereunder and shall thereafter be applied to receive the Change of Control Payments equal reduce other payments and benefits in a manner that would not result in subjecting Executive to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes. (ii) Unless the Employer and the Employee otherwise agree in writing, any determination required taxation under this Section 8(e) shall be made in writing by tax counsel or by an independent public accounting firm agreed to by the Employer and the Employee (the “Auditor”), whose determination shall be conclusive and binding upon the Employer and the Employee. For purposes of making the calculations required by this Section 8(e), the Auditor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Employer and the Employee shall furnish to the Auditor such information and documents as the Auditor may reasonably request in order to make a determination under this Section 8(e). The Employer shall bear all costs the Auditor may reasonably incur in connection with any calculations contemplated by this Section 8(e).409A.

Code Section 280G. (ia) Notwithstanding anything in this Agreement Prior to the contrary, in the event that any severance and other benefits provided to or for the benefit initiation of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreementrequisite shareholder approval procedure under Section 6.10(b), benefit, plan, or policy of the Related Parties (this Agreement and such other agreements, benefits, plansCompany shall obtain, and policies collectively being referred Sellers shall deliver to herein as Buyer, a Parachute Payment Waiver from each Person who is, with respect to the Company Group, a “Change of Control Arrangements”) constitute “parachute paymentsdisqualified individual” (within the meaning of Section 280G(b)(2) 280G of the Code (such severance and other benefits being referred to herein the Department of Treasury regulations promulgated thereunder), as the “Change of Control Payments”) that would be subject determined immediately prior to the excise tax imposed by initiation of the requisite shareholder approval procedure under Section 4999 6.10(b), and who might otherwise have, receive or have the right to receive a parachute payment under Section 280G of the Code in connection with the transactions contemplated by this Agreement. (such excise tax referred b) As soon as practicable following the delivery of the Parachute Payment Waivers by Sellers to in this Agreement as Buyer, the “Excise Tax”), then (i) if Company shall submit to the shareholder shareholders of the Company for approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with the requirements of Section 280G(b)(5280G(b)(5)(B) of the Code and the Department of Treasury regulations promulgated thereunder; thereunder any payments and/or benefits that are subject to a Parachute Payment Waiver, such that such payments and benefits shall not be deemed to be “parachute payments” under Section 280G of the Code, and prior to the Closing, Sellers shall deliver to Buyer evidence reasonably satisfactory to Buyer (i) that a Company shareholder vote was solicited in conformance with Section 280G of the Code, and the requisite shareholder approval was obtained with respect to any payments and/or benefits that were subject to the Company shareholder vote (the “Section 280G Approval”) or (ii) if that the shareholder approval exemption set forth in Section 280G(b)(5) is 280G Approval was not availableobtained and as a consequence, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms Parachute Payment Waiver, such “parachute payments” shall not be made or provided. (c) The form of the Change of Control Arrangements (all said payments, distributions Parachute Payment Waiver and benefits being referred any materials to as be submitted to the “Uncapped Payments”); (C) Company’s shareholders in connection with the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code 280G Approval (the “Net Uncapped AmountSection 280G Soliciting Materials”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes. (ii) Unless the Employer and the Employee otherwise agree in writing, any determination required under this Section 8(e) shall be made subject to review and approval by Buyer, which approval shall not be unreasonably withheld. Sellers will promptly advise Buyer in writing by tax counsel if, at any time prior to the Closing, Sellers obtain knowledge of any facts that might make it necessary or by an independent public accounting firm agreed appropriate to by amend or supplement the Employer and the Employee (the “Auditor”), whose determination shall be conclusive and binding upon the Employer and the Employee. For purposes of making the calculations required by this Section 8(e), the Auditor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Employer and the Employee shall furnish to the Auditor such information and documents as the Auditor may reasonably request Soliciting Materials in order to make a determination under this Section 8(e). The Employer shall bear all costs the Auditor may reasonably incur in connection statements contained or incorporated by reference therein not misleading or to comply with any calculations contemplated by this Section 8(e)applicable Law.

Code Section 280G. (i) Notwithstanding anything in this Agreement any provision of the Plan to the contrary, if any payments or benefits the Executive would receive from the Company under this Agreement or otherwise in the event that any severance and other benefits provided to or for the benefit connection with a change in ownership (as defined under Section 280G(b)(2) of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties Code) (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control ArrangementsTotal Payments”) (a) constitute “parachute payments” within the meaning of Section 280G(b)(2) 280G of the Code Code, and (such severance and other benefits being referred to herein as the “Change of Control Payments”b) that but for this Section 20(c), would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”)Code, then such Executive will be entitled to receive either (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) full amount of the Code and the regulations promulgated thereunder; Total Payments or (ii) if a portion of the shareholder approval exemption set forth Total Payments having a value equal to $1 less than three (3) times such individual’s “base amount” (as such term is defined in Section 280G(b)(5280G(b)(3)(A) is not availableof the Code), then the Employer will provide the Employee with a computation whichever of (Ai) and (ii), after taking into account applicable federal, state, and local income taxes and the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to excise tax imposed by Section 4999 of the Code as a result of Code, results in the receipt by such employee on an after-tax basis, of the Uncapped Payments; and (D) the net value greatest portion of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Total Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes. (ii) Unless the Employer and the Employee otherwise agree in writing, any Any determination required under this Section 8(e20(c) shall be made in writing by the Company’s independent certified public accountants appointed prior to any change in ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel or selected by an independent public accounting firm agreed to by the Employer and the Employee such accountants (the “AuditorAccountants”), whose determination shall be conclusive and binding for all purposes upon the Employer and the Employeeapplicable Executive. For purposes of making the calculations required by this Section 8(e20(c), the Auditor Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Employer If there is a reduction pursuant to this Section 20(c) of the Total Payments to be delivered to the applicable Executive, the payment reduction contemplated by the preceding sentence shall be implemented by determining the “Parachute Payment Ratio” (as defined below) for each “parachute payment” and then reducing the “parachute payments” in order beginning with the “parachute payment” with the highest Parachute Payment Ratio. For “parachute payments” with the same Parachute Payment Ratio, such “parachute payments” shall be reduced based on the time of payment of such “parachute payments,” with amounts having later payment dates being reduced first. For “parachute payments” with the same Parachute Payment Ratio and the Employee same time of payment, such “parachute payments” shall furnish to the Auditor such information and documents as the Auditor may reasonably request in order to make be reduced on a determination under this Section 8(e). The Employer shall bear all costs the Auditor may reasonably incur in connection with any calculations contemplated by this Section 8(e).pro rata basis (but not below zero) prior to

Code Section 280G. (i) Notwithstanding anything to the contrary in this Agreement to the contraryAgreement, in the event it shall be determined that any severance and other benefits provided payment or distribution made, or benefit provided, by the Companies to or for the benefit of the Employee Executive under Article II or his legal representatives and dependents Article III (whether paid or payable or distributed or distributable or provided pursuant to this Agreement and the terms hereof or otherwise) or under any other agreement, benefit, plan, plan or policy of the Related Parties Companies (including but not limited to the Bonus Plan, the LTIP and the OTIP) (this Agreement and such other agreements, benefits, plans, plans and policies collectively being referred to herein as the “Change of in Control Arrangements”) would constitute a “parachute paymentspayment” within the meaning of as defined in Section 280G(b)(2) 280G of the Internal Revenue Code of 1986, as amended (“Code Section 280G”) (such severance and payments, distributions or other benefits being referred to herein as the “Change of Control Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee Companies shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee Executive with a computation of (Ai) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangementsmade, without the imposition of the Excise Tax excise tax imposed by Code Section 4999, under the Change in Control Arrangements (said maximum amount being referred to as the “Capped AmountAmounts”); (Bii) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of in Control Arrangements (all said payments, distributions and benefits being referred to herein as the “Uncapped Payments”); (Ciii) the dollar amount of Excise Tax excise tax (if any) which the Employee Executive would become obligated to pay pursuant to Code Section 4999 of the Code as a result of receipt of the Uncapped PaymentsPayments (the “Excise Tax Amount”); and (Div) the net value of the Uncapped Payments after reduction by (1A) the amount of the Excise TaxTax Amount, (2B) the estimated income taxes payable by the Employee Executive on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee Executive is paying the highest marginal tax rate for state, local and federal income taxes, ; and (3C) the estimated hospital insurance taxes payable by the Employee Executive on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Code Section 3101(b) of the Code 3101 (the “Net Uncapped Amount”). . (ii) If the Capped Amount is greater than the Net Uncapped Amount, the Employee Executive shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, Amount the Employee Executive shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes. (iiiii) Unless the Employer and the Employee otherwise agree in writing, any Any determination required under this Section 8(e) Article V.D. shall be made in writing by tax counsel or by an independent public accounting firm accountants mutually agreed to by the Employer Company and the Employee Executive (the “AuditorAccountants”), whose determination shall be conclusive and binding upon the Employer Executive and the EmployeeCompanies for all purposes. For purposes of making the calculations required by this Section 8(e)Article V.D., the Auditor Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999 of the Code4999. The Employer Companies and the Employee Executive shall furnish to the Auditor Accountants such information and documents as the Auditor Accountants may reasonably request in order to make a determination the determinations under this Section 8(e). Article V.D. The Employer Companies shall bear all costs the Auditor Accountants may reasonably incur in connection with any calculations contemplated by this Section 8(e).Article V.D.

Code Section 280G. (i) Notwithstanding anything in this Agreement If any payment or benefit received or to be received by the contrary, in the event that any severance and other benefits provided to or for the benefit of the Employee or his legal representatives and dependents Executive pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties otherwise (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control ArrangementsPayments”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G(b)(2) 280G of the Code Code, and (such severance and other benefits being referred to herein as the “Change of Control Payments”ii) that would but for this subsection (f), be subject to the excise tax imposed by Section 4999 of the Code (such Code, any successor provisions, or any comparable federal, state, local or foreign excise tax referred to in this Agreement as (the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee such Payments shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of be either (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made provided in full pursuant to the terms of the Change this Agreement or any other applicable plan or agreement, or (B) provided as to such lesser extent which would result in no portion of Control Arrangements (all said payments, distributions and benefits such Payments being referred subject to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) whichever of the estimated income taxes payable by foregoing amounts, taking into account the Employee on the difference between the Uncapped Payments and the Capped Amountapplicable federal, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxesforeign income, employment and other taxes and the Excise Tax, results in the receipt by the Executive, on an after-tax basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. If a reduction is required pursuant to this subsection (f), the reduction shall be made as follows: (x) if none of the parachute payments constitute non-qualified deferred compensation (within the meaning of Section 409A of the Code), then the reduction shall occur in the manner the Executive elects in writing, and (3y) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; if any parachute payments constitute non-qualified deferred compensation or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled Executive fails to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Paymentselect an order, then the Employee shall parachute payments to be solely responsible for reduced will be determined by the Accounting Firm (defined below) in a manner which has the least economic cost to the Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment of would have been made to the Excise Tax due from Executive, until the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes. (ii) Unless the Employer and the Employee otherwise agree in writing, any reduction is achieved. Any determination required under this Section 8(esubsection (f) shall be made in writing by tax counsel or by an independent public accounting firm agreed to designated by the Employer and the Employee Company (the “AuditorAccounting Firm”), whose determination shall be conclusive and binding upon the Employer Executive and the EmployeeCompany for all purposes. For purposes of making the calculations required by under this Section 8(esubsection (f), the Auditor Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Accounting Firm shall assume that the Executive pays all taxes at the highest marginal rate. The Employer Company and the Employee Executive shall furnish to the Auditor Accounting Firm such information and documents as the Auditor Accounting Firm may reasonably request in order to make a determination under this Section 8(esubsection (f). The Employer shall Company will bear all costs that the Auditor Accounting Firm may reasonably incur in connection with any calculations contemplated by this Section 8(esubsection (f).

Code Section 280G. (ia) Notwithstanding anything If any payment or benefit (all such payments and benefits, being hereinafter called “Total Payments”) received or to be the received by the Executive in this Agreement to the contrary, connection with a change in the event that any severance and other benefits provided to ownership or for the benefit effective control of the Employee Company or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy the ownership of a substantial portion of the Related Parties assets of the Company (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control Arrangements”) constitute “parachute payments” all within the meaning of Section 280G(b)(2280G(b)(2)(A)(i) of the Code Code) (such severance and other benefits being referred whether pursuant to herein as the terms hereof or otherwise) (a “Change of Control Payments280G Event”) that would not be wholly deductible by the Company or other person making such payment or providing such benefit as a result of Section 280G of the Code, then, to the extent necessary to make such portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such arrangement), (i) any cash portion of the Total Payments shall first be reduced (if necessary, to zero), and (ii) all other non-cash Total Payments shall next be reduced (if necessary, to zero). (b) The limitation of Section 21(a) shall not apply to limit the Total Payments if (i) such payments or benefits, or portion thereof which would cause any of the Total Payments to be subject to the excise tax imposed by disallowance of deductions under Section 4999 280G of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder absent stockholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights are approved by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) stockholders of the Company in a manner which satisfies the requirements of Code and the regulations promulgated thereunderSection 280G(b)(5)(B); or (ii) if immediately prior to the shareholder approval exemption set forth in consummation of the 280G Event, any stock of the Company is “readily tradable on an established securities market or otherwise” (within the meaning of Section 280G(b)(5280G(5)(A)(ii)(I)) or the requirements of Section 280G(5)(A)(ii)(I) are otherwise not met. (c) The Company agrees that, unless the condition of Section 21(b)(ii) is not availablesatisfied, then it will submit to the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition stockholders of the Excise Tax (said maximum amount being referred Company for a separate vote a proposal to as approve, in compliance with the “Capped Amount”); (B) the value requirements of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b280G(b)(5)(B) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped AmountCode, the Employee shall be entitled to receive or commence Executive’s conditional right to receive the Change portion of Control the Total Payments equal otherwise subject to reduction under Section 21(a). Without limiting the Capped Amountforegoing, the Company shall recommend to all holders of voting stock that such approval be granted; or provided that if the Net Uncapped Amount is greater than the Capped AmountCompany breaches this Section 21(c), the Employee then Sections 21(a) and (b) shall be entitled to receive or commence null and void. For the avoidance of doubt, if the Company does not breach this Section 21(c), but the Executive’s conditional right to receive the Change portion of Control the Total Payments equal otherwise subject to reduction under Section 21(a) is rejected by the Uncapped Payments. If the Employee receives the Uncapped Paymentsstockholders, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee Sections 21(a) and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes. (ii) Unless the Employer and the Employee otherwise agree in writing, any determination required under this Section 8(eb) shall be made continue to apply in writing by tax counsel or by an independent public accounting firm agreed to by the Employer full force and the Employee (the “Auditor”), whose determination shall be conclusive and binding upon the Employer and the Employee. For purposes of making the calculations required by this Section 8(e), the Auditor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Employer and the Employee shall furnish to the Auditor such information and documents as the Auditor may reasonably request in order to make a determination under this Section 8(e). The Employer shall bear all costs the Auditor may reasonably incur in connection with any calculations contemplated by this Section 8(e)effect.

Code Section 280G. (i) Notwithstanding anything any other provision in this Agreement to the contraryor any Employment Agreement, in the event that it is determined (by the reasonable computation of an independent nationally recognized certified public accounting firm that shall be selected by the Company (the “Accountant”) that the aggregate amount of the payments, distributions, benefits and entitlements of any severance and other benefits provided type payable by the Employer to or for the benefit of the Employee (including any payment, distribution, benefit or his legal representatives and dependents pursuant to this Agreement and entitlement made by any other agreement, benefit, plan, person or policy entity effecting a “change in control” within the meaning of Section 280G of the Related Parties (this Agreement and such other agreementsCode), benefitsin each case, plans, and policies collectively being referred to herein as the “Change of Control Arrangements”) constitute that could be considered “parachute payments” within the meaning of Section 280G(b)(2) 280G of the Code (such severance and other benefits being referred to herein as payments, the “Change of Control Parachute Payments”) that, but for this paragraph (and, if applicable, the provisions of any Employment Agreement that relate to Section 280G of the Code) would be subject payable to the Employee, exceeds the greatest amount of Parachute Payments that could be paid to the Employee without giving rise to any liability for any excise tax imposed by Code Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such excise tax or taxes, together with any such interest or penalties, collectively referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and aggregate amount of Parachute Payments payable to the Employee shall take all steps necessary, including, without limitation, waiver of rights by not exceed the Employee, amount which produces the greatest after-tax benefit to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the after taking into account any Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes. (ii) Unless the Employer and the Employee otherwise agree in writing, any determination required under this Section 8(e) shall be made in writing by tax counsel or by an independent public accounting firm agreed to by the Employer and the Employee (the “Auditor”), whose determination shall be conclusive and binding upon the Employer and the Employee. For purposes the avoidance of making doubt, this provision shall reduce the calculations required by this amount of Parachute Payments otherwise payable to the Employee, if doing so would place the Employee in a more favorable net after-tax economic position as compared with not reducing the amount of Parachute Payments (taking into account the Excise Tax payable in respect of such Parachute Payments). Any such reduction shall be applied (i) first against cash payments which are included in full as Parachute Payments, (ii) second from equity awards which are included in full as Parachute Payments, (iii) third from cash payments which are partially included as Parachute Payments and (iv) fourth from equity awards that are partially included as Parachute Payments, in each instance provided that Section 8(e), the Auditor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 409A of the Code. The Employer Code is complied with and the Employee shall furnish payments to the Auditor such information and documents as the Auditor may reasonably request be made later in order time are to make a determination under this Section 8(e). The Employer shall bear all costs the Auditor may reasonably incur be reduced before payments to be made sooner in connection with any calculations contemplated by this Section 8(e)time.

Code Section 280G. (i) Notwithstanding anything to the contrary in this Agreement to the contraryAgreement, in the event it shall be determined that any severance and other benefits provided payment or distribution made, or benefit provided, by the Companies to or for the benefit of the Employee Executive under Article II or his legal representatives and dependents Article III (whether paid or payable or distributed or distributable or provided pursuant to this Agreement and the terms hereof or otherwise) or under any other agreement, benefit, plan, plan or policy of the Related Parties Companies (including but not limited to the Bonus Plan, the LTIP and the OTIP) (this Agreement and such other agreements, benefits, plans, plans and policies collectively being referred to herein as the “Change of in Control Arrangements”) would constitute a “parachute paymentspayment” within the meaning of as defined in Section 280G(b)(2) 280G of the Internal Revenue Code of 1986, as amended (“Code Section 280G”) (such severance and payments, distributions or other benefits being referred to herein as the “Change of Control Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee Companies shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee Executive with a computation of (Ai) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangementsmade, without the imposition of the Excise Tax excise tax imposed by Code Section 4999, under the Change in Control Arrangements (said maximum amount being referred to as the “Capped AmountAmounts”); (Bii) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of in Control Arrangements (all said payments, distributions and benefits being referred to herein as the “Uncapped Payments”); (Ciii) the dollar amount of Excise Tax excise tax (if any) which the Employee Executive would become obligated to pay pursuant to Code Section 4999 of the Code as a result of receipt of the Uncapped PaymentsPayments (the “Excise Tax Amount”); and (Div) the net value of the Uncapped Payments after reduction by (1A) the amount of the Excise TaxTax Amount, (2B) the estimated income taxes payable by the Employee Executive on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee Executive is paying the highest marginal tax rate for state, local and federal income taxes, ; and (3C) the estimated hospital insurance taxes payable by the Employee Executive on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Code Section 3101(b) of the Code 3101 (the “Net Uncapped Amount”). . (ii) If the Capped Amount is greater than the Net Uncapped Amount, the Employee Executive shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, Amount the Employee Executive shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes. (iiiii) Unless the Employer and the Employee otherwise agree in writing, any Any determination required under this Section 8(e) Article V.D. shall be made in writing by tax counsel or by an independent public accounting firm accountants mutually agreed to by the Employer Company and the Employee Executive (the “AuditorAccountants”), whose determination shall be conclusive and binding upon the Employer Executive and the EmployeeCompanies for all purposes. For purposes of making the calculations required by this Section 8(e)Article V.D., the Auditor Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999 of the Code4999. The Employer Companies and the Employee Executive shall furnish to the Auditor Accountants such information and documents as the Auditor Accountants may reasonably request in order to make a determination the determinations under this Section 8(e). Article V.D. The Employer Companies shall bear all costs the Auditor Accountants may reasonably incur in connection with any calculations contemplated by this Section 8(e).Article X.X.

Code Section 280G. (i) Notwithstanding anything in If any payments or benefits the Executive would receive from the Company under this Agreement to the contrary, or otherwise in the event that any severance and other benefits provided to or for the benefit connection with a change in ownership (as defined under Section 280G(b)(2) of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties Code) (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control ArrangementsTotal Payments”) (a) constitute “parachute payments” within the meaning of Section 280G(b)(2) 280G of the Code Code, and (such severance and other benefits being referred to herein as the “Change of Control Payments”b) that but for this Section 7 would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is availableCode, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee Executive shall be entitled to receive or commence to receive either (i) the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment full amount of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes. Total Payments or (ii) Unless a portion of the Employer Total Payments having a value equal to $1 less than three (3) times the Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of (i) and (ii), after taking into account applicable federal, state, and local income taxes and the Employee otherwise agree excise tax imposed by Section 4999 of the Code, results in writingthe receipt by such employee on an after tax basis, any of the greatest portion of the Total Payments. Any determination required under this Section 8(e) 7 shall be made in writing by the Company’s independent certified public accountants appointed prior to any change in ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel or selected by an independent public accounting firm agreed to by the Employer and the Employee such accountants (the “AuditorAccountants”), whose determination shall be final, conclusive and binding for all purposes upon the Employer and the EmployeeExecutive. For purposes of making the calculations required by this Section 8(e)7, the Auditor Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Employer If there is a reduction pursuant to this Section 7 of the Total Payments to be delivered to the applicable Executive the payment reduction contemplated by the first sentence of this Section 7 shall be implemented by determining the “Parachute Payment Ratio” (as defined below) for each “parachute payment” and then reducing the “parachute payments” in order beginning with the “parachute payment” with the highest Parachute Payment Ratio. For “parachute payments” with the same Parachute Payment Ratio, such “parachute payments” shall be reduced based on the time of payment of such “parachute payments,” with amounts having later payment dates being reduced first. For “parachute payments” with the same Parachute Payment Ratio and the Employee same time of payment, such “parachute payments” shall furnish be reduced on a pro rata basis (but not below zero) prior to reducing “parachute payments” with a lower Parachute Payment Ratio. For purposes hereof, the Auditor term “Parachute Payment Ratio” shall mean a fraction the numerator of which is the value of the applicable “parachute payment” for purposes of Section 280G of the Code and the denominator of which is the actual present value of such information and documents as payment. The determination by the Auditor may reasonably request in order to make a determination Accountants under this Section 8(e). The Employer 6 shall bear all costs be made as soon as practicable but no later than six (6) days following the Auditor may reasonably incur in connection with any calculations contemplated by this Section 8(e)Effective Time.

Code Section 280G. If, after the Effective Time, Sovereign or the Company is not an entity whose stock is readily tradable on an established securities market (ior otherwise) Notwithstanding anything and a “change of control” under Treasury Regulation 1.280G occurs, the Company and Sovereign shall use commercially reasonable best efforts to take such actions as may be necessary to avoid the imposition of the excise tax imposed by Section 4999 of the Code or a loss of deductibility under Section 280G of the Code, including seeking to obtain stockholder approval in this Agreement accordance with the terms of Section 280G(b)(5)(ii). If on the date that a “change of control” under Treasury Regulation 1.280G occurs, either Section 280G(b)(5)(ii)(II) is not applicable or after using commercially reasonable best efforts, the Company is unable to avoid the contrary, in imposition of the event that excise tax imposed by Section 4999 of the Code as to any severance and other payment or benefits provided to you whether made or for the benefit of the Employee or his legal representatives and dependents provided pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties otherwise (this Agreement and such other agreements, benefits, plans, and policies collectively payments or benefits which are subject to such excise tax being referred to herein as the “Change of Control ArrangementsParachute Payments”), then, except to the extent you have previously waived your rights with respect to such Parachute Payments, you will be entitled to receive either (A) constitute “parachute payments” within the meaning of Section 280G(b)(2) full amount of the Code Parachute Payments, or (B) the maximum amount that may be provided to you without resulting in any portion of such severance and other benefits Parachute Payments being referred to herein as the “Change of Control Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”)Code, then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver whichever of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of clauses (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); and (B) ), after taking into account applicable federal, state, and local taxes and the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to excise tax under Section 4999 of the Code as a result of Code, results in the receipt by you, on an after-tax basis, of the Uncapped Payments; and (D) the net value greatest portion of the Uncapped Parachute Payments. The Parachute Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive reduced in a manner that maximizes the Change Executive’s economic position. Any reduction of Control Parachute Payments equal pursuant to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes. (ii) Unless the Employer and the Employee otherwise agree in writing, any determination required under this Section 8(e) preceding sentence shall be made in writing by tax counsel or by an independent public accounting firm agreed to by a manner consistent with the Employer and the Employee (the “Auditor”), whose determination shall be conclusive and binding upon the Employer and the Employee. For purposes requirements of making the calculations required by this Section 8(e), the Auditor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 409A of the Code. The Employer , and the Employee where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall furnish to the Auditor such information and documents as the Auditor may reasonably request in order to make be reduced on a determination under this Section 8(e). The Employer shall bear all costs the Auditor may reasonably incur in connection with any calculations contemplated by this Section 8(e)pro rata basis but not below zero.

Code Section 280G. (ia) Notwithstanding anything in this Agreement If, after the Effective Time, there occurs a transaction that constitutes a “change of control” under Treasury Regulation 1.280G, and, immediately prior to the contraryconsummation of such change of control, in Sovereign or the Company is an entity whose stock is readily tradable on an established securities market (or otherwise) such that an exemption from the Excise Tax (as defined below) is not available, the following provisions will apply: (1) In the event it shall be determined that any severance and other benefits provided payment (including without limitation, the issuance of common shares, the granting or vesting of restricted shares, or the granting, vesting, exercise or termination of options therefor) to or for the your benefit of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control Arrangements”) constitute “parachute payments” within the meaning of Section 280G(b)(2) of the Code (such severance and other benefits being referred to herein as the “Change of Control Payments”) that would be hereunder is subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by you with respect to such excise tax (such excise tax tax, together with any such interest and penalties, hereinafter collectively referred to in this Agreement as the “Excise Tax”), then you shall be entitled to receive an additional payment or payments (ia “Gross-Up Payment”) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee shall take an amount such that after payment by you of all steps necessarytaxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, waiver any income or employment taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, you retain an amount of rights the Gross-Up Payment equal to the Excise Tax imposed upon the payments. Notwithstanding the foregoing provisions of this Section 12(a)(i), if it shall be determined that you are entitled to a Gross-Up Payment, but that the payments do not exceed 110% of the greatest amount that could be paid to you without giving rise to any Excise Tax (the “Safe Harbor Amount”), then no Gross-Up Payment shall be made to you and the amounts payable under this Agreement shall be reduced so that the payments, in the aggregate, are reduced to the Safe Harbor Amount. (2) All determinations required to be made under this Section 12, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm selected by the EmployeeCompany (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and you within ten business days of the receipt of notice from you that there have been payments to which Sections 280G and/or Section 4999 may apply, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to seek shareholder this Section 12, shall be paid by the Company to you (or to the appropriate taxing authority on your behalf) five business days before the applicable tax is due. If the Accounting Firm determines that no Excise Tax is payable by you, it shall so indicate to you. Any determination by the Accounting Firm shall be binding upon the Company and you, subject to an Internal Revenue Service determination. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that the amount of the Gross-Up Payment determined by the Accounting Firm to be due to (or on behalf of) you was lower than the amount actually due (“Underpayment”). In the event that the Company exhausts its remedies pursuant to Section 12(b) and you thereafter are required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment plus any interest and penalties incurred as a result of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for your benefit. (b) You shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after you are informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. You shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies you in writing prior to the expiration of such period that it desires to contest such claim, you shall (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company and reasonably acceptable to you, (iii) cooperate with the Company in good faith in order to effectively contest such claim and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold you harmless, on an after-tax basis, for any Excise Tax or income or employment tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 12, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct you to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and you agree to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, further, that if the Company directs you to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to you, on an interest-free basis, and shall indemnify and hold you harmless, on an after-tax basis, from any Excise Tax or income or employment tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; provided, further, that if you are required to extend the statute of limitations to enable the Company to contest such claim, you may limit this extension solely to such contested amount. The Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and you shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (c) If, after the receipt by you of an amount paid or advanced by the Company pursuant to this Section 12, you become entitled to receive any refund with respect to a Gross-Up Payment, you shall promptly pay to the Company the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). (d) With respect to any “change of control” under Treasury Regulation 1.280G for which you are not entitled to receive the Gross-Up Payment as set forth in this Section 12, the Company and Sovereign shall use commercially reasonable best efforts to take such actions as may be necessary to avoid the imposition of any Excise Tax, including seeking to obtain stockholder approval for such Change of Control Payments in accordance with the terms of Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxesCode. (ii) Unless the Employer and the Employee otherwise agree in writing, any determination required under this Section 8(e) shall be made in writing by tax counsel or by an independent public accounting firm agreed to by the Employer and the Employee (the “Auditor”), whose determination shall be conclusive and binding upon the Employer and the Employee. For purposes of making the calculations required by this Section 8(e), the Auditor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Employer and the Employee shall furnish to the Auditor such information and documents as the Auditor may reasonably request in order to make a determination under this Section 8(e). The Employer shall bear all costs the Auditor may reasonably incur in connection with any calculations contemplated by this Section 8(e).

Code Section 280G. (a) If there is a change of ownership or effective control or change in the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G of the Code) (a “280G Change in Control”) and any payment or benefit (including payments and benefits pursuant to this Agreement) that the Executive would receive from the Company or otherwise (a “Transaction Payment”) would (i) Notwithstanding anything in this Agreement to the contrary, in the event that any severance and other benefits provided to or for the benefit of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control Arrangements”) constitute a “parachute paymentspayment” within the meaning of Section 280G(b)(2) 280G of the Code and (such severance and other benefits being referred to herein as the “Change of Control Payments”ii) that would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is availableCompany shall cause to be determined, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) before any amounts of the Code and Transaction Payment are paid to the regulations promulgated thereunder; Executive, which of the following two alternative forms of payment would result in the Executive’s receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that all or (ii) if some portion of the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then Transaction Payment may be subject to the Employer will provide the Employee with a computation of Excise Tax: (A) payment in full of the maximum entire amount of Change the Transaction Payment (a “Full Payment”), or (B) payment of Control Payments only a part of the Transaction Payment so that could be made under the Change of Control Arrangements, Executive receives the largest payment possible without the imposition of the Excise Tax (said a “Reduced Payment”, and Executive shall be entitled to payment of whichever amount that shall result in a greater after-tax amount for Executive. For purposes of determining whether to make a Full Payment or a Reduced Payment, the Company shall cause to be taken into account all applicable federal, state and local income and employment taxes and the Excise Tax (all computed at the highest applicable marginal rate reasonably applicable to Executive, net of the maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that reduction in federal income taxes which could be made pursuant to obtained from a deduction of such state and local taxes). If a Reduced Payment is made, the terms of reduction in payments and/or benefits will occur in the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by following order: (1) the amount first, reduction of the Excise Taxcash payments, in reverse order of scheduled payment date (or if necessary, to zero), (2) then, reduction of non-cash and non-equity benefits provided to the estimated income taxes payable by the Employee Executive, on the difference between the Uncapped Payments and the Capped Amounta pro rata basis (or if necessary, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, to zero) and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) then, cancellation of the Code (acceleration of vesting of equity award compensation in the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment reverse order of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right date of additional payment from any grant of the Related Parties as reimbursement for such taxesExecutive’s equity awards. (iib) Unless the Employer Executive and the Employee Company otherwise agree in writing, any determination required under this Section 8(e) section shall be made in writing by tax counsel or by an independent public a nationally recognized accounting firm agreed to selected by the Employer and Company subject to the Employee approval of the Executive which shall not be unreasonably withheld (the “AuditorAccountants”), whose determination shall be conclusive and binding upon the Employer Executive and the EmployeeCompany for all purposes absent manifest error. For purposes of making the calculations required by this Section 8(e)section, the Auditor Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. Without limiting the generality of the foregoing, any determination by the Accountants under this Section 13.12(b) will take into account the value of any reasonable compensation for services to be rendered by the Executive (or for holding oneself out as available to perform services and refraining from performing services (such as under a covenant not to compete)). The Employer Accountants shall provide detailed supporting calculations to the Company and the Employee Executive as requested by the Company or the Executive. The Executive and the Company shall furnish to the Auditor Accountants such information and documents as the Auditor Accountants may reasonably request in order to make a determination under this Section 8(e)section. The Employer Company shall bear all costs the Auditor Accountants may reasonably incur in connection with any calculations contemplated by this section as well as any costs incurred by the Executive with the Accountants for tax planning under Sections 280G and 4999 of the Code. The Company agrees to use all reasonable efforts to submit any Transaction Payments to the Company’s stockholders for approval in accordance with Treasury Reg. Section 8(e)1.280G-1 Q&A 7, if such stockholder approval is applicable and if requested in writing by Executive.

Code Section 280G. (i) Notwithstanding anything in If the aggregate of all amounts and benefits due to Executive under this Agreement to the contraryor any other plan, in the event that any severance and other benefits provided to program, agreement or for the benefit arrangement of the Employee Company or his legal representatives any of its affiliates, which, if received by Executive in full, would constitute “parachute payments,” as such term is defined in and dependents pursuant to this Agreement and any other agreementunder Code Section 280G (collectively, benefit, plan, or policy of the Related Parties (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control ArrangementsBenefits”) constitute “parachute payments” within the meaning of Section 280G(b)(2) of the Code (such severance ), reduced by all Federal, state and other benefits being referred to herein as the “Change of Control Payments”) that would be subject to local taxes applicable thereto, including the excise tax imposed by pursuant to Code Section 4999 4999, is less than the amount Executive would receive, after all such applicable taxes, if Executive received aggregate Change of the Control Benefits equal to an amount which is $1.00 less than three (3) times Executive’s “base amount,” as defined in and determined under Code (such excise tax referred to in this Agreement as the “Excise Tax”)Section 280G, then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of Benefits shall be reduced or eliminated to the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments extent necessary so that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of Benefits received by Executive will not constitute parachute payments. If a reduction in the Change of Control Arrangements (all said paymentsBenefits is necessary, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction extent permitted by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxesapplicable law, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) not a violation of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped AmountSections 280G, the Employee 409A or 4999, Executive shall be entitled to receive or commence to receive elect the order in which Change of Control Payments equal to Benefits will be reduced. If Executive electing the Capped Amount; order in which such benefits will be reduced would result in violation of Code Section 409A or if loss of the Net Uncapped Amount is greater than the Capped Amountbenefit of reduction under Code Sections 280G or 4999, the Employee payments shall be entitled to receive or commence to receive reduced in the Change following order (i) severance payment based on multiple of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes. Annual Base Salary and/or Annual Bonus; (ii) Unless other cash payments; (iii) any Pro Rata Annual Bonus or Pro-Rata LTIP paid as severance; (iv) acceleration of vesting of stock options with an exercise price that exceeds the Employer then fair market value of stock subject to the option, provided such options are not permitted to be valued under Treasury Regulations Section 1.280G-1 Q/A – 24(c); (v) any equity awards accelerated or otherwise valued at full value, provided such equity awards are not permitted to be valued under Treasury Regulations Section 1.280G-1 Q/A – 24(c); (vi) acceleration of vesting of stock options with an exercise price that exceeds the then fair market value of stock subject to the option, provided such options are permitted to be valued under Treasury Regulations Section 1.280G-1 Q/A – 24(c); (vii) acceleration of vesting of all other stock options and equity awards; and (viii) within any category, reductions shall be from the Employee otherwise agree in writing, any determination required under last due payment to the first. The determinations with respect to this Section 8(e5(h) shall be made in writing by tax counsel or by an independent public accounting firm agreed to by the Employer and the Employee auditor (the “Auditor”), whose determination ) compensated by the Company. The Auditor shall be conclusive and binding upon the Employer and Company’s regular independent auditor, unless Executive objects to the Employee. For purposes use of making the calculations required by this Section 8(e)that firm, in which event the Auditor may make reasonable assumptions shall be a nationally-recognized United States public accounting firm chosen by the Company and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Employer and the Employee approved by Executive (which approval shall furnish to the Auditor such information and documents as the Auditor may reasonably request in order to make a determination under this Section 8(enot be unreasonably withheld or delayed). The Employer Auditor shall bear all costs the Auditor may reasonably incur prepare a report setting forth its findings in connection with any calculations contemplated by this Section 8(e)a form on which Executive can rely when filing her taxes.

Code Section 280G. (i) Notwithstanding anything to the contrary in this Agreement to the contraryAgreement, in the event it shall be determined that any severance and other benefits provided payment or distribution made, or benefit or entitlements provided, by the Company or any entity effecting a change in control to or for the benefit of the Employee Executive under Article II or his legal representatives and dependents Article III or otherwise (whether paid or payable or distributed or distributable or provided pursuant to this Agreement and the terms hereof or otherwise) or under any other agreement, benefit, plan, plan or policy of the Related Parties Company or any entity effecting a change in control (including but not limited to any bonus plan in effect from time to time) (this Agreement and such other agreements, benefits, plans, plans and policies collectively being referred to herein as the “Change of in Control Arrangements”) would constitute a “parachute paymentspayment” within the meaning of as defined in Code Section 280G(b)(2) of the Code 280G (such severance and payments, distributions or other benefits being referred to herein as the “Change of Control Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee Company shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee Executive with a computation of (Ai) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangementsmade, without the imposition of the Excise Tax excise tax imposed by Code Section 4999, under the Change in Control Arrangements (said maximum amount being referred to as the “Capped AmountAmounts”); (Bii) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of in Control Arrangements (all said payments, distributions and benefits being referred to herein as the “Uncapped Payments”); (Ciii) the dollar amount of Excise Tax excise tax (if any) which the Employee Executive would become obligated to pay pursuant to Code Section 4999 of the Code as a result of receipt of the Uncapped PaymentsPayments (the “Excise Tax Amount”); and (Div) the net value of the Uncapped Payments after reduction by (1a) the amount of the Excise Tax, Tax Amount; (2b) the estimated income taxes payable by the Employee Executive on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee Executive is paying the highest marginal tax rate for state, local and federal income taxes, ; and (3c) the estimated hospital insurance taxes payable by the Employee Executive on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Code Section 3101(b) of the Code 3101 (the “Net Uncapped Amount”). . (ii) If the Capped Amount is greater than the Net Uncapped Amount, the Employee Executive shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, Amount the Employee Executive shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If To arrive at the Employee receives the Uncapped PaymentsCapped Amount, then the Employee cash payments shall be solely responsible for reduced before equity-based compensation or other non-cash compensation or benefits, in each case in reverse order beginning with payments or benefits that are to be paid the payment furthest in time from consummation of the Excise Tax due from transaction that is subject to Code Section 280G, provided that, in the Employee case of all the foregoing payments, compensation and attributable benefits, all amounts that are not subject to such Uncapped Paymentscalculation under Treas. Reg. §1.280G-1, with Q&A-24(b) or (c) shall be reduced before any amount that are subject to calculation under Treas. Reg. §1.280G-1, Q&A-24(b) or (c) as would result in no right of additional payment from any portion of the Related Parties as reimbursement for such taxes.payments, compensation or benefits being considered “excess parachute payments” under Code Section 280G. All reductions hereunder shall also be done in a manner which complies with Code Section 409A. (iiiii) Unless the Employer and the Employee otherwise agree in writing, any Any determination required under this Section 8(e) Article V.D. shall be made in writing by tax counsel or by an independent public accounting firm accountants mutually agreed to by the Employer Company and the Employee Executive (the “AuditorAccountants”), whose determination shall be conclusive and binding upon the Employer Executive and the EmployeeCompany for all purposes. For purposes of making the calculations required by this Section 8(e)Article V.D., the Auditor Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999 of the Code4999. The Employer Company and the Employee Executive shall furnish to the Auditor Accountants such information and documents as the Auditor Accountants may reasonably request in order to make a determination the determinations under this Section 8(e). Article V.D. The Employer Company shall bear all costs the Auditor Accountants may reasonably incur in connection with any calculations contemplated by this Section 8(e).Article X.X.

Code Section 280G. Between the date hereof and the Closing Date, the Company will (ior will cause its applicable Subsidiaries to) Notwithstanding anything use commercially reasonable efforts to (a) seek waivers, from individuals who would reasonably be expected to be considered “disqualified individuals” (within the meaning of Section 280G(c) of the Code and the regulations thereunder) with respect to the relevant Group Companies, of that portion of their payments and/or benefits payable in connection with this Agreement to that would trigger the contraryreceipt of “excess parachute payments” (within the meaning of Section 280G of the Code and the regulations thereunder) by such individual and (b) solicit shareholder approval of any such waived payments and/or benefits, in the event such that any severance and other no payments and/or benefits provided to or for the benefit of the Employee or his legal representatives and dependents pursuant such individual would be deemed to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control Arrangements”) constitute “parachute payments” within pursuant to Section 280G of the meaning Code. At least ten (10) Business Days prior to the Closing Date, the Company shall provide Parent with written calculations regarding the potential application of Section 280G(b)(2) 280G of the Code (such severance and other benefits being referred to herein as the “Change of Control Payments”) that would be subject each potential disqualified individual. Prior to the excise tax imposed by Section 4999 of Closing Date, the Code (such excise tax referred Company shall deliver to in this Agreement as the “Excise Tax”), then Parent notification that (i) if the shareholder approval exemption set forth a stockholder vote was solicited in Section 280G(b)(5) is available, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, manner entitled to seek shareholder approval for such Change of Control Payments in accordance comply with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; thereunder and the requisite stockholder approval was obtained with respect to any waived payments and/or benefits that were subject to the stockholder vote or (ii) if the shareholder such stockholder approval exemption set forth in Section 280G(b)(5) is was not availableobtained and, then the Employer will provide the Employee with as a computation of (A) the maximum amount of Change of Control Payments that could consequence, any waived payments and/or benefits shall not be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant or provided to the terms of the Change of Control Arrangements (all said extent they would cause any amounts to constitute “excess parachute payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay ” pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes. (ii) Unless the Employer and the Employee otherwise agree in writing, any determination required under this Section 8(e) shall be made in writing by tax counsel or by an independent public accounting firm agreed to by the Employer and the Employee (the “Auditor”), whose determination shall be conclusive and binding upon the Employer and the Employee. For purposes of making the calculations required by this Section 8(e), the Auditor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Employer form of the waiver, the disclosure statement, and any other materials to be submitted to such Shareholders in connection with this Section 5.11 shall be subject to advance timely review and reasonable comment by Xxxxxx. Notwithstanding the Employee foregoing, with respect to any Parent Arrangement, Parent shall furnish provide a copy thereof to the Auditor such information Company and documents as Seller Representative at least seven (7) Business Days before the Auditor may reasonably request Closing Date and shall cooperate with the Company in good faith in order to make a determination under this calculate or determine the value (for purposes of Section 8(e). The Employer shall bear all costs 280G of the Auditor Code) of any payments or benefits granted or contemplated therein, which may reasonably incur be paid or granted in connection with any calculations the transactions contemplated by this Agreement and that could constitute a “parachute payment” under Section 8(e).280G of the Code; provided, that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein, as a result of Parent’s failure to comply with the timing and other requirements set forth above, will not result in a breach of the covenants set forth in this Section 5.11. In no event shall the Company be deemed in breach of this

Code Section 280G. (i) Notwithstanding anything to the contrary in this Agreement to the contraryAgreement, in the event it shall be determined that any severance and other benefits provided payment or distribution made, or benefit provided, by the Company to or for the benefit of the Employee Executive under Article II or his legal representatives and dependents Article III (whether paid or payable or distributed or distributable or provided pursuant to this Agreement and the terms hereof or otherwise) or under any other agreement, benefit, plan, plan or policy of the Related Parties Company (including but not limited to any bonus plan in effect from time to time) (this Agreement and such other agreements, benefits, plans, plans and policies collectively being referred to herein as the “Change of in Control Arrangements”) would constitute a “parachute paymentspayment” within the meaning of as defined in Section 280G(b)(2) 280G of the Internal Revenue Code of 1986, as amended (“Code Section 280G”) (such severance and payments, distributions or other benefits being referred to herein as the “Change of Control Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee Company shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee Executive with a computation of (Ai) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangementsmade, without the imposition of the Excise Tax excise tax imposed by Code Section 4999, under the Change in Control Arrangements (said maximum amount being referred to as the “Capped AmountAmounts”); (Bii) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of in Control Arrangements (all said payments, distributions and benefits being referred to herein as the “Uncapped Payments”); (Ciii) the dollar amount of Excise Tax excise tax (if any) which the Employee Executive would become obligated to pay pursuant to Code Section 4999 of the Code as a result of receipt of the Uncapped PaymentsPayments (the “Excise Tax Amount”); and (Div) the net value of the Uncapped Payments after reduction by (1A) the amount of the Excise TaxTax Amount, (2B) the estimated income taxes payable by the Employee Executive on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee Executive is paying the highest marginal tax rate for state, local and federal income taxes, ; and (3C) the estimated hospital insurance taxes payable by the Employee Executive on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Code Section 3101(b) of the Code 3101 (the “Net Uncapped Amount”). . (ii) If the Capped Amount is greater than the Net Uncapped Amount, the Employee Executive shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, Amount the Employee Executive shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes. (iiiii) Unless the Employer and the Employee otherwise agree in writing, any Any determination required under this Section 8(e) Article V.D. shall be made in writing by tax counsel or by an independent public accounting firm accountants mutually agreed to by the Employer Company and the Employee Executive (the “AuditorAccountants”), whose determination shall be conclusive and binding upon the Employer Executive and the EmployeeCompany for all purposes. For purposes of making the calculations required by this Section 8(e)Article V.D., the Auditor Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999 of the Code4999. The Employer Company and the Employee Executive shall furnish to the Auditor Accountants such information and documents as the Auditor Accountants may reasonably request in order to make a determination the determinations under this Section 8(e). Article V.D. The Employer Company shall bear all costs the Auditor Accountants may reasonably incur in connection with any calculations contemplated by this Section 8(e).Article X.X.

Code Section 280G. (i) Notwithstanding anything in this Agreement to the contrary, in In the event the Company (or its successor) and Executive agree, based on the advice of an independent nationally recognized public accounting firm engaged by the Company, that any severance and other part or all of the consideration, compensation or benefits provided to be paid to or for the benefit of the Employee or his legal representatives and dependents pursuant to Executive under this Agreement and any other agreement, benefit, plan, or policy of the Related Parties (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control Arrangements”) constitute “"parachute payments” within the meaning of " under Section 280G(b)(2) of the Code (such severance and other benefits being referred to herein as the “Change of Control Payments”) that would be subject to the excise tax imposed by "Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”280G"), then either (ia) or (b) below shall apply. (a) Except as provided in Section 21(b) below, if the shareholder approval exemption set forth aggregate present value of such parachute payments, singularly or together with the aggregate present value of any consideration, compensation or benefits to be paid to or for the benefit of Executive under any other plan, arrangement or agreement which constitute "parachute payments", calculated as provided under Section 280G, (collectively, the "Parachute Amount") exceeds 2.99 times Executive's "base amount", as defined in Section 280G(b)(5280G(b)(3) (the "Base Amount"), the amounts constituting "parachute payments" which would otherwise be payable to Executive or for Executive's benefit shall be reduced to the extent necessary so that the Parachute Amount is availableequal to 2.99 times the Base Amount (the "Reduced Amount"). (b) The Parachute Amount shall not be reduced as provided in Section 21(a) above if, then based on the Employer advice of such public accounting firm, without such reduction Executive would be entitled to receive and the Employee shall take all steps necessaryretain, on a net after-tax basis (including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the after imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to any excise taxes payable under Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the Code), an amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount which is greater than the Net Uncapped amount, on a net after-tax basis, that Executive would be entitled to retain upon receipt of the Reduced Amount. If the determination made above results in a reduction under Section 21(a) above of the payments that would otherwise be paid to or for the benefit of Executive, the Employee such reduction in payments shall be first applied to reduce any cash severance payments that Executive would otherwise be entitled to receive or commence hereunder and shall thereafter be applied to receive the Change of Control Payments equal reduce other payments and benefits in a manner that would not result in subjecting Executive to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes. (ii) Unless the Employer and the Employee otherwise agree in writing, any determination required taxation under this Section 8(e) shall be made in writing by tax counsel or by an independent public accounting firm agreed to by the Employer and the Employee (the “Auditor”), whose determination shall be conclusive and binding upon the Employer and the Employee. For purposes of making the calculations required by this Section 8(e), the Auditor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Employer and the Employee shall furnish to the Auditor such information and documents as the Auditor may reasonably request in order to make a determination under this Section 8(e). The Employer shall bear all costs the Auditor may reasonably incur in connection with any calculations contemplated by this Section 8(e).409A.

Code Section 280G. (i) Notwithstanding anything in If any payments or benefits the Executive would receive from the Company under this Agreement to the contrary, or otherwise in the event that any severance and other benefits provided to or for the benefit connection with a change in ownership (as defined under Section 280G(b)(2) of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties Code) (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control ArrangementsTotal Payments”) (a) constitute “parachute payments” within the meaning of Section 280G(b)(2) 280G of the Code Code, and (such severance and other benefits being referred to herein as the “Change of Control Payments”b) that but for this Section 7 would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is availableCode, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee Executive shall be entitled to receive or commence to receive either (i) the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment full amount of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes. Total Payments or (ii) Unless a portion of the Employer Total Payments having a value equal to $1 less than three (3) times the Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of (i) and (ii), after taking into account applicable federal, state, and local income taxes and the Employee otherwise agree excise tax imposed by Section 4999 of the Code, results in writingthe receipt by such employee on an after tax basis, any of the greatest portion of the Total Payments. Any determination required under this Section 8(e) 7 shall be made in writing by the Company’s independent certified public accountants appointed prior to any change in ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel or selected by an independent public accounting firm agreed to by the Employer and the Employee such accountants (the “AuditorAccountants”), whose determination shall be final, conclusive and binding for all purposes upon the Employer and the EmployeeExecutive. For purposes of making the calculations required by this Section 8(e)7, the Auditor Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Employer If there is a reduction pursuant to this Section 7 of the Total Payments to be delivered to the applicable Executive the payment reduction contemplated by the first sentence of this Section 7 shall be implemented by determining the “Parachute Payment Ratio” (as defined below) for each “parachute payment” and then reducing the “parachute payments” in order beginning with the “parachute payment” with the highest Parachute Payment Ratio. For “parachute payments” with the same Parachute Payment Ratio, such “parachute payments” shall be reduced based on the time of payment of such “parachute payments,” with amounts having later payment dates being reduced first. For “parachute payments” with the same Parachute Payment Ratio and the Employee same time of payment, such “parachute payments” shall furnish be reduced on a pro rata basis (but not below zero) prior to reducing “parachute payments” with a lower Parachute Payment Ratio. For purposes hereof, the Auditor term “Parachute Payment Ratio” shall mean a fraction the numerator of which is the value of the applicable “parachute payment” for purposes of Section 280G of the Code and the denominator of which is the actual present value of such information and documents as payment. The determination by the Auditor may reasonably request in order to make a determination Accountants under this Section 8(e). The Employer 7 shall bear all costs be made as soon as practicable but no later than six (6) days following the Auditor may reasonably incur in connection with any calculations contemplated by this Section 8(e)Effective Time.

Code Section 280G. (ia) Notwithstanding anything any other provisions in this Agreement to the contraryAgreement, in the event that any severance and other benefits provided payment or benefit received or to be received by the Executive (including, without limitation, any payment or for benefit received in connection with a Change in Control or the benefit termination of the Employee or his legal representatives and dependents Employee’s employment, whether pursuant to the terms of this Agreement and or any other agreement, benefit, plan, program, arrangement or policy of the Related Parties agreement) (this Agreement all such payments and such other agreements, benefits, planstogether, and policies collectively being referred to herein as the “Change of Control Arrangements”) constitute “parachute payments” within the meaning of Section 280G(b)(2) of the Code (such severance and other benefits being referred to herein as the “Change of Control Total Payments”) that would be subject (in whole or in part) to the any excise tax imposed by under Code Section 4999 of the Code 4999, or any successor provision thereto (such excise tax referred to in this Agreement as the “Excise Tax”), then then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G in such other plan, agreement, arrangement or program, the Total Payments shall be reduced (but in no event to less than zero) in the following order to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax: (i) if cash payments that do not constitute deferred compensation within the shareholder approval exemption set forth in meaning of Code Section 280G(b)(5409A, (ii) is available, then acceleration of vesting of equity and equity-based awards and non-cash benefits that do not constitute deferred compensation within the Employer and the Employee shall take all steps necessary, including, without limitation, waiver meaning of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) 409A of the Code and (iii) all other cash payments, acceleration of vesting of equity and equity-based awards and non-cash benefits that do constitute deferred compensation within the regulations promulgated thereunder; or meaning of Code Section 409A (the payments and benefits in clauses (i), (ii) and (iii), together, the “Potential Payments”); provided, however, that the Potential Payments shall only be reduced if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of (A) the maximum net amount of Change the Total Payments, as so reduced (and after subtracting the net amount of Control federal, state, municipal and local income taxes on such reduced Total Payments that could be made under and after taking into account the Change phase out of Control Arrangementsitemized deductions and personal exemptions attributable to such reduced Total Payments), without the imposition of the Excise Tax (said maximum amount being referred is greater than or equal to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms net amount of the Change Total Payments without such reduction (but after subtracting the net amount of Control Arrangements (all said paymentsfederal, distributions state, municipal and benefits being referred to as local income taxes on such Total Payments and the “Uncapped Payments”); (C) the dollar amount of Excise Tax to which the Employee would become obligated to pay pursuant to Section 4999 be subject in respect of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped such unreduced Total Payments and after taking into account the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local phase out of itemized deductions and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and personal exemptions attributable to such Uncapped unreduced Total Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes). (iib) Unless the Employer and the Employee otherwise agree in writing, any determination required under this Section 8(e) shall be made in writing by tax counsel or by an independent public accounting firm agreed to by the Employer and the Employee (the “Auditor”), whose determination shall be conclusive and binding upon the Employer and the Employee. For purposes of making the calculations required by this Section 8(e), the Auditor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Employer and the Employee shall furnish to the Auditor such information and documents as the Auditor may reasonably request in order to make a All determination under this Section 8(e10 shall be made by a nationally recognized accounting firm or law firm selected by the Company (the “Tax Advisor”). The Employer shall bear all costs Company and the Auditor Executive will each provide the Tax Advisor access to and copies of any books, records and documents in the possession of the Company or the Executive, as the case may be, reasonably incur requested by the Tax Advisor, and otherwise cooperate with the Tax Advisor in connection with any the preparation and issuance of the determinations and calculations contemplated by this Section 8(e)10.

Code Section 280G. If any Person who is a “disqualified individual” (i) Notwithstanding anything in this Agreement to the contrary, in the event that any severance and other benefits provided to or for the benefit of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control Arrangements”) constitute “parachute payments” within the meaning of Section 280G(b)(2) 280G of the Code (such severance and other benefits being referred the Department of Treasury regulations promulgated thereunder) with respect to herein as the “Change of Control Payments”Company may receive any payment(s) or benefit(s) that would be subject to the excise tax imposed by could constitute parachute payments under Section 4999 280G of the Code in connection with the transactions contemplated by this Agreement, then: (a) Seller shall use commercially reasonable efforts to obtain a Parachute Payment Waiver from each such excise tax referred “disqualified individual” and shall deliver such Parachute Payment Waiver to in this Agreement Buyer; and (b) as soon as practicable following the “Excise Tax”)delivery of the Parachute Payment Waivers (if any) to Buyer, then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer Seller and the Employee Company shall take prepare and distribute to shareholders a disclosure statement describing all steps necessarypotential parachute payments and benefits that may be received by such disqualified individual(s) and shall submit such payments to its shareholders for approval, includingin each case, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with the requirements of Section 280G(b)(5280G(b)(5)(B) of the Code and the Department of Treasury regulations promulgated thereunder; or (ii) , such that, if approved by the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition requisite majority of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said paymentsshareholders, distributions such payments and benefits being referred shall not be deemed to as the be “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate parachute payments” under Section 3101(b) 280G of the Code (the foregoing actions, a “Net Uncapped Amount280G Vote”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal Prior to the Capped Amount; or Closing, if a 280G Vote is undertaken, Seller shall deliver to Buyer evidence reasonably satisfactory to Buyer, (i) that a 280G Vote was solicited in conformance with Section 280G of the Net Uncapped Amount is greater than Code, and the Capped Amount, the Employee shall be entitled requisite shareholder approval was obtained with respect to receive or commence to receive the Change of Control Payments equal any payments and/or benefits that were subject to the Uncapped Payments. If Company shareholder vote (the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes. “Section 280G Approval”) or (ii) Unless that the Employer Section 280G Approval was not obtained and as a consequence, pursuant to the Employee otherwise agree in writingParachute Payment Waiver, such “parachute payments” shall not be made or provided. The form of the Parachute Payment Waiver, the disclosure statement, any determination required under this Section 8(e) shall other materials to be made in writing by tax counsel or by an independent public accounting firm agreed submitted to by the Employer and the Employee (the “Auditor”), whose determination shall be conclusive and binding upon the Employer and the Employee. For purposes of making the calculations required by this Section 8(e), the Auditor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Employer and the Employee shall furnish to the Auditor such information and documents as the Auditor may reasonably request in order to make a determination under this Section 8(e). The Employer shall bear all costs the Auditor may reasonably incur shareholders in connection with the 280G Vote and the calculations related to the foregoing shall be subject to advance review and approval by Buyer, which approval shall not be unreasonably withheld. Prior to the solicitation of Parachute Payment Waivers, Buyer shall provide Seller and the Company with any calculations contemplated by this Section 8(e)compensatory arrangement that it or its Affiliates entered into or agreed with any disqualified individual.

Code Section 280G. (ia) Notwithstanding anything in this Agreement The Company shall obtain and deliver to the contraryPurchaser, in prior to the event that any severance and other benefits provided to or for the benefit initiation of the Employee or his legal representatives and dependents pursuant requisite shareholder approval procedure under Section 6.7(b), a fully executed Parachute Payment Waiver from each Person who is, with respect to this Agreement and any other agreementthe Company, benefit, plan, or policy of the Related Parties a “disqualified individual” (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control Arrangements”) constitute “parachute payments” within the meaning of Section 280G(b)(2280G of the Code), as determined immediately prior to the initiation of the requisite shareholder approval procedure under Section 6.7(b), and who might otherwise have, receive or have the right to entitlement to receive a “parachute payment” (within the meaning of Section 280G of the Code) in connection with the transactions contemplated by this Agreement. (b) As soon as practicable following the delivery of the Parachute Payment Waivers by the Company to the Purchaser, the Company shall submit to the Holders for approval in accordance with Section 280G(b)(5)(B) of the Code any payments and/or benefits that are subject to a Parachute Payment Waiver, such that, following the requisite shareholder approval, such payments and benefits shall not be deemed to be “parachute payments” under Section 280G of the Code. In addition, prior to the Closing, the Company shall deliver to the Purchaser evidence reasonably satisfactory to the Purchaser (such severance and other benefits being referred to herein as the “Change of Control Payments”i) that would be a Company shareholder vote was solicited in conformance with Section 280G of the Code, and the requisite Company shareholder approval was obtained with respect to any payments and/or benefits that were subject to the excise tax imposed by Section 4999 of the Code Company shareholder vote (such excise tax referred to in this Agreement as the “Excise TaxSection 280G Approval”)) or (ii) that the Section 280G Approval was not obtained and as a consequence, then (i) if pursuant to the shareholder approval exemption set forth Parachute Payment Waiver, such “parachute payments” shall not be made or provided. The Company shall use commercially reasonable efforts to obtain the Section 280G Approval in a manner which satisfies all applicable requirements of Section 280G(b)(5) is available, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5280G(b)(5)(B) of the Code and the Department of Treasury regulations promulgated thereunder; or . (iic) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition The form of the Excise Tax (said maximum amount being referred Parachute Payment Waiver and any materials to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant submitted to the terms of Holders in connection with the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code 280G Approval (the “Net Uncapped AmountSection 280G Soliciting Materials”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes. (ii) Unless the Employer and the Employee otherwise agree in writing, any determination required under this Section 8(e) shall be made subject to review and approval by the Purchaser, which approval shall not be unreasonably withheld. The Company will promptly advise the Purchaser in writing by tax counsel or by an independent public accounting firm agreed if, at any time prior to by the Employer and the Employee (the “Auditor”), whose determination shall be conclusive and binding upon the Employer and the Employee. For purposes of making the calculations required by this Section 8(e)Closing, the Auditor may Company obtains knowledge of any facts that might make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning it necessary or appropriate to amend or supplement the application of Sections Section 280G and 4999 of the Code. The Employer and the Employee shall furnish to the Auditor such information and documents as the Auditor may reasonably request Soliciting Materials in order to make a determination under this statements contained or incorporated by reference therein not misleading or to comply with applicable Law, including without limitation, the requirements of Section 8(e). The Employer shall bear all costs 280G(b)(5)(B) of the Auditor may reasonably incur in connection with any calculations contemplated by this Section 8(e)Code.

Code Section 280G. (i) Notwithstanding anything in this Agreement to the contrary, in the event that any severance and other benefits provided to or for the benefit of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control Arrangements”) constitute “parachute payments” within the meaning of Section 280G(b)(2) of the Code (such severance and other benefits being referred to herein as the “Change of Control Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes. (ii) Unless the Employer and the Employee otherwise agree in writing, any determination required under this Section 8(e) shall be made in writing by tax counsel or by an independent public accounting firm agreed to by the Employer and the Employee (the “Auditor”), whose determination shall be conclusive and binding upon the Employer and the Employee. For purposes of making the calculations required by this Section 8(e), the Auditor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Employer and the Employee shall furnish to the Auditor such information and documents as the Auditor may reasonably request in order to make a determination under this Section 8(e). The Employer shall bear all costs the Auditor may reasonably incur in connection with any calculations contemplated by this Section 8(e).and

Code Section 280G. (i) Notwithstanding anything in this Agreement to the contrary, in the event that any severance and other benefits provided to or for the benefit of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control Arrangements”) constitute “parachute payments” within the meaning of Section 280G(b)(2) of the Code (such severance and other benefits being referred to herein as the “Change of Control Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer Company and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer Company will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes. (ii) Unless the Employer Company and the Employee otherwise agree in writing, any determination required under this Section 8(e) shall be made in writing by tax counsel or by an independent public accounting firm agreed to by the Employer Company and the Employee (the “Auditor”), whose determination shall be conclusive and binding upon the Employer Company and the Employee. For purposes of making the calculations required by this Section 8(e), the Auditor may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Employer Company and the Employee shall furnish to the Auditor such information and documents as the Auditor may reasonably request in order to make a determination under this Section 8(e). The Employer Company shall bear all costs the Auditor may reasonably incur in connection with any calculations contemplated by this Section 8(e).