Common use of Excise Tax Clause in Contracts

Excise Tax. In the event that any benefits payable to Executive pursuant to the Transition Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s Termination Benefits hereunder shall be either (a) provided to Executive in full, or (b) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determined. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”). In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. The Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 5.

Excise Tax. In If any payment or benefit that Employee would receive following a Change in Control of the event that any benefits payable to Executive pursuant to the Transition Agreement Company or otherwise (“Termination BenefitsPayment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 would sentence, be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions Code (the “Excise Tax”), then Executive’s Termination Benefits hereunder such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be either (a) provided to Executive in full, or (b) provided to Executive as to such lesser extent which the largest portion of the Payment that would result in no portion of such benefits the Payment being subject to the Excise TaxTax or (b) the largest portion, up to and including the total amount, of the Payment, whichever of the foregoing amountsamounts determined under (a) and (b), when after taking into account all applicable federal, state, state and local and foreign income and employment taxes, income taxes, and the Excise Tax, and any other Tax (all computed at the highest applicable taxesmarginal rate), results in the receipt by ExecutiveEmployee’s receipt, on an after-tax basis, of the greatest greater amount of benefits, the Payment notwithstanding that all or some portion of such benefits the Payment may be taxable subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order: reduction of cash payments; cancellation of accelerated vesting of outstanding awards under the Excise Tax Equity Plan; and Executive shall have no right to Termination Benefits in excess reduction of the amount so determined. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”)employee benefits. In the event that acceleration of a reduction vesting of benefits hereunderoutstanding awards under the Equity Plan is to be reduced, Executive such acceleration of vesting shall be given undertaken in the choice reverse order of which benefits the date of grant of the Employee’s outstanding equity awards. The accounting firm engaged by the Company for general audit purposes as of the day prior to reducethe effective date of the Change in Control of the Company shall perform the foregoing calculations. If Executive does not provide written identification to the accounting firm so engaged by the Company of which benefits he chooses to reduce within ten (10) days after written notice of is serving as accountant or auditor for the Accountants’ determinationindividual, and Executive has not disputed entity or group effecting the Accountants’ determinationChange in Control, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 5appoint another, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order nationally recognized accounting firm to make a determination under this Section 5the determinations required hereunder. The Company shall bear all expenses with respect to the cost determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Employee and the Company within a commercially reasonable period of all fees time after the Accountants charge in connection with any calculations contemplated date on which the Employee’s right to a Payment is triggered (if requested at that time by this Section 5the Employee or the Company). Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Employee and the Company.

Excise Tax. In the event that any benefits payable to Executive pursuant to the Transition Section 6 of this Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 6(d), would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s Termination Benefits hereunder shall be either (aA) provided to Executive in full, or (bB) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local local, and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determinedTax. Unless the Company Heska and Executive otherwise agree in writing, any determination required under this Section 5 6(d) shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”)Heska’s independent accountants. In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company Heska of which benefits he Executive chooses to reduce within ten (10) days after written notice of the Accountantsaccountants’ determination, and Executive has not disputed the Accountantsaccountants’ determination, then the Company Heska shall select the benefits to be reduced. For purposes of making the calculations required by this Section 56(d), the Accountants accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, Code and other applicable legal authority. The Company Heska and Executive shall furnish to the Accountants accountants such information and documents as the Accountants accountants may reasonably request in order to make a determination under this Section 56(d). The Company Heska shall bear all costs the cost of all fees the Accountants charge accountants may reasonably incur in connection with any calculations contemplated by this Section 56(d).

Excise Tax. In Notwithstanding anything herein to the contrary, in the event that Executive becomes entitled to receive or receives any payment or benefit provided for under this Agreement or under any other plan, agreement, or arrangement with the Company, or from any person whose actions result in a Change in Control or any person affiliated with the Company or any such person (all such payments and benefits payable being referred to Executive pursuant to herein as the Transition Agreement (“Termination BenefitsTotal Payments”) and it is determined that any of the Total Payments (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 Subsection (e), would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (then the “Excise Tax”), then Executive’s Termination Benefits hereunder Total Payments shall be payable either (a1) provided to Executive in full, or (b2) provided to Executive as to such lesser extent amount which would result in no portion of such benefits the Total Payments being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, when taking into account the applicable federal, state, state and local income taxes and foreign income and employment taxes, the Excise Tax, and any other applicable taxesexcise tax imposed by Section 4999, results in the receipt by Executive, the Executive on an after-tax basis, of the greatest amount of benefitsthe Total Payments, notwithstanding that all or some portion of such benefits the Total Payments may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess Section 4999 of the amount so determinedCode. Unless Executive and the Company and Executive agree otherwise agree in writing, any the determination of Executive’s excise tax liability, if any, and the amount, if any, required to be paid under this Section 5 shall Subsection (e) will be made in writing in good faith by a nationally recognized accounting firm selected the independent auditors who are primarily used by the Company immediately prior to the Change in Control (the “Accountants”). In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 5Subsection (e), the 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, . Executive and other applicable legal authority. The the Company and Executive shall agree to furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Subsection (e). The Company shall will bear the cost of all fees costs the Accountants charge may reasonably incur in connection with any calculations contemplated by this Subsection (e). Any reduction of the Total Payments shall be made first to any payments or benefits that are exempt from the application of Section 5409A of the Code, and thereafter to any payments or benefits that are subject to Section 409A of the Code; provided that in applying this reduction methodology, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code, and where more than one of the Total Payments in a category has the same economic cost to Executive and such Total Payments are payable at different times, such Total Payments will be reduced on a pro-rata basis.

Excise Tax. (a) In the event that any the severance and other benefits provided in this Agreement or otherwise payable to Executive pursuant to the Transition Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, ) and (ii) but for this Section 5 would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”)then, then except as provided by Section 11(b) below: Executive’s Termination Benefits hereunder benefits shall be either (ai) provided to Executive delivered in full, or (bii) provided to Executive delivered as to such lesser extent which would result in no portion of such benefits being subject to the Excise Taxexcise tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, amounts results in the receipt by Executive, Executive on an after-tax basis, of the greatest amount of benefits. Any reduction in payments and/or benefits required by this Section shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid or provided to Executive. In the event that acceleration of vesting of equity awards is to be reduced, notwithstanding that all or some portion such acceleration of such benefits may vesting shall be taxable under cancelled in the Excise Tax and Executive shall have no right to Termination Benefits in excess reverse order of the amount so determineddate of grant for the Executive’s equity awards. If two or more equity awards are granted on the same day, the equity awards will be reduced on a pro-rata basis. (b) Unless Executive and the Company and Executive agree otherwise agree in writing, any the determination required under this Section 5 shall of Executive’s excise tax liability will be made in writing in good faith by a nationally recognized accounting firm selected the independent auditors who are primarily used by the Company immediately prior to the Change in Control (the “Accountants”). In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 511, the 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, . Executive and other applicable legal authority. The the Company and Executive shall agree to furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 511. The Company shall will bear the cost of all fees costs the Accountants charge and/or Executive may reasonably incur in connection with any calculations contemplated by this Section 511.

Excise Tax. In Notwithstanding any other provision of this Agreement or any other plan, arrangement or agreement to the event that contrary, if any of the payments or benefits payable received or to be received by Executive (including, without limitation, any payment or benefits received in connection with a change in control of the Employer or the termination of Executive's employment, whether pursuant to the Transition terms of this Agreement (“Termination Benefits”or any other plan, arrangement, or agreement, or otherwise) (iall such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 would will be subject to the excise tax imposed by under Section 4999 of the Code, or any comparable successor provisions Code (the “Excise Tax”), then Executive’s Termination Benefits hereunder the Employer shall be either (ai) provided reduce (but not below zero) such payments or benefits received or to be received by Executive so that the aggregate present value of the payments and benefits received by the Executive is $1.00 less than the amount which would otherwise cause Executive to incur an Excise Tax, or (ii) be paid in full, or (b) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an greatest net after-tax basispayment to Executive. To the extent reduction is required, the Employer will reduce Executive’s cash payments and/or benefits under this Agreement followed by any acceleration of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax Executive’s outstanding equity awards. All calculations and Executive shall have no right to Termination Benefits in excess of the amount so determined. Unless the Company and Executive otherwise agree in writing, any determination required determinations under this Section 5 2.10 shall be made in writing in good faith by a nationally recognized an independent accounting firm selected or independent tax counsel appointed by the Company Employer (the “AccountantsTax Counsel”). In the event of a reduction of benefits hereunder, Executive ) whose determinations shall be given conclusive and binding on the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, Employer and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reducedfor all purposes. For purposes of making the calculations and determinations required by this Section 52.10, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and Tax Counsel may rely on reasonable, good faith interpretations assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code, and other applicable legal authority. The Company Employer and Executive shall furnish to the Accountants Tax Counsel with such information and documents as the Accountants Tax Counsel may reasonably request in order to make a determination its determinations under this Section 52.10. The Company Employer shall bear all costs the cost of all fees the Accountants charge Tax Counsel may reasonably incur in connection with any calculations contemplated by this Section 5its services.

Excise Tax. In the event that any the benefits provided for in this Agreement or otherwise payable to Executive pursuant to the Transition Agreement (“Termination Benefits”) Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for if the net after-tax amount of such parachute payment to Employee is less than what the net after-tax amount to Employee would be if the aggregate payments and benefits otherwise constituting the parachute payment were limited to three times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) less $1.00, then the aggregate payments and benefits otherwise constituting the parachute payment shall be reduced to an amount that shall equal three times Employee’s base amount, less $1.00. Should such a reduction in payments and benefits be required, Employee shall be entitled, subject to the following sentence, to designate those payments and benefits under this Agreement or the other arrangements that will be reduced or eliminated so as to achieve the specified reduction in aggregate payments and benefits to Employee and avoid characterization of such aggregate payments and benefits as a parachute payment. The Company will provide Employee with all information reasonably requested by Employee to permit Employee to make such designation. To the extent that Employee’s ability to make such a designation would cause any of the payments and benefits to become subject to any additional tax under Code Section 409A, or if Employee fails to make such a designation within ten business days of receiving the requested information from the Company, then the Company shall achieve the necessary reduction in such payments and benefits by first reducing or eliminating the portion of the payments and benefits that are payable in cash and then by reducing or eliminating the non-cash portion of the payments and benefits, in each case in reverse order beginning with payments and benefits which are to be paid or provided the furthest in time from the date of the Company’s determination. For purposes of this Section 5 would 22, a net after-tax amount shall be subject to determined by taking into account all applicable income, excise and employment taxes, whether imposed at the federal, state or local level, including the excise tax imposed by under Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s Termination Benefits hereunder shall be either (a) provided to Executive in full, or (b) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determined. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”). In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. The Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 5.

Excise Tax. (i) In the event that any benefits amounts payable under this Agreement or otherwise to Executive pursuant to the Transition Agreement (“Termination Benefits”) would (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, provision and (ii) but for this Section 5 would 24(b), be subject to the excise tax imposed by Section section 4999 of the Code, Code or any comparable successor provisions provision (the “Excise Tax”), then Executive’s Termination Benefits hereunder such amounts payable to Executive shall be either (aA) provided to Executive in full, full or (bB) provided to Executive as to such lesser the maximum extent which that would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local local, and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determinedTax. Unless the Company Employer and Executive otherwise agree in writing, any determination required under this Section 5 24(b) shall be made in writing in good faith by a nationally recognized Employer’s independent accounting firm selected by the Company (the “Accountants”). In the event of a reduction of in benefits hereunder, Executive the reduction of the total payments shall apply as follows, unless otherwise agreed in writing and such agreement is in compliance with section 409A: (i) any cash severance payments subject to Section 409A due under this Agreement shall be given reduced, with the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determinationlast such payment due first forfeited and reduced, and Executive has sequentially thereafter working from the next last payment; (ii) any cash severance payments not disputed the Accountants’ determination, then the Company subject to Section 409A due under this Agreement shall select the benefits to be reduced, with the last such payment due first forfeited and reduced, and sequentially thereafter working from the next last payment; (iii) any acceleration of vesting of any equity subject to Section 409A shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest; and (iv) any acceleration of vesting of any equity not subject to Section 409A shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest. For purposes of making the calculations required by this Section 524(b), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good good-faith interpretations concerning the application of the Code, Code and other applicable legal authority. The Company Employer and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 524(b). The Company Employer shall bear the cost of all fees costs that the Accountants charge may reasonably incur in connection with any calculations contemplated by this Section 524(b). (ii) If notwithstanding any reduction described in this Section 24(b) the Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of amounts payable under this Agreement or otherwise as described above, then Executive shall be obligated to pay back to Employer, within 30 days after a final IRS determination or, in the event that Executive challenges the final IRS determination, a final judicial determination, a portion of such amounts equal to the Repayment Amount. The “Repayment Amount,” with respect to the payment of benefits, shall be the smallest such amount, if any, that is required to be paid to Employer so that Executive’s net after-tax proceeds with respect to any payment of benefits (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on such payment) are maximized. The Repayment Amount with respect to the payment of benefits shall be zero if a Repayment Amount of more than zero would not result in Executive’s net after-tax proceeds with respect to the payment of such benefits being maximized. If the Excise Tax is not eliminated pursuant to this Section 24(b), Executive shall pay the Excise Tax. (iii) Notwithstanding any other provision of this Section 24(b), if (A) there is a reduction in the payment of benefits as described in this Section 24(b), (B) the IRS later determines that Executive is liable for the Excise Tax, the payment of which would result in the maximization of Executive’s net after-tax proceeds (calculated as if Executive’s benefits had not previously been reduced), and (C) Executive pays the Excise Tax, then Employer shall pay to Executive those benefits which were reduced pursuant to this Section 24(b) as soon as administratively possible after Executive pays the Excise Tax, so that Executive’s net after-tax proceeds with respect to the payment of benefits are maximized.

Excise Tax. In the event that any the benefits payable to Executive pursuant to the Transition provided for in this Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, ) and (ii) but for this Section 5 Subsection (e), would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (then the “Excise Tax”), then Executive’s Termination Benefits hereunder benefits under this Agreement shall be payable either (a1) provided to Executive in full, or (b2) provided to Executive as to such lesser extent amount which would result in no portion of the such benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, when taking into account the applicable federal, state, state and local income taxes and foreign income and employment taxes, the Excise Tax, and any other applicable taxesexcise tax imposed by Section 4999, results in the receipt by Executive, the Executive on an after-tax basis, of the greatest amount of benefitsbenefits under this Agreement, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess Section 4999 of the amount so determinedCode. Unless Executive and the Company and Executive agree otherwise agree in writing, any the determination of Executive’s excise tax liability, if any, and the amount, if any, required to be paid under this Section 5 shall Subsection (e) will be made in writing in good faith by a nationally recognized accounting firm selected the independent auditors who are primarily used by the Company immediately prior to the Change of Control (the “Accountants”). In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 5Subsection (e), the 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, . Executive and other applicable legal authority. The the Company and Executive shall agree to furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Subsection (e). The Company shall will bear the cost of all fees costs the Accountants charge may reasonably incur in connection with any calculations contemplated by this Subsection (e). Any reduction of benefits under this Agreement shall be made first to any payments or benefits that are exempt from the application of Section 5409A of the Code, and thereafter to any payments or benefits that are subject to Section 409A of the Code on a pro-rata basis.

Excise Tax. (i) In the event that any payments or benefits payable provided or to be provided by Company or Bank or their respective Affiliates to Executive or for Executive’s benefit pursuant to the Transition terms of this Agreement or otherwise (“Termination BenefitsCovered Payments”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisionsprovision thereto) and would, and (ii) but for this Section 5 would 24(b), be subject to the excise tax imposed by Section 4999 of the Code, Code (or any comparable successor provisions provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then Executive’s Termination Benefits hereunder the Covered Payments shall be either reduced (abut not below zero) provided to Executive in full, or (b) provided the minimum extent necessary to Executive as to such lesser extent which would result in ensure that no portion of such benefits being the Covered Payments is subject to the Excise Tax. (ii) The Covered Payments shall be reduced in a manner that maximizes Executive’s economic position. In applying this principle, whichever the reduction shall be made in a manner consistent with the requirements of Section 409A of the foregoing amountsCode, when taking into account applicable federaland where two economically equivalent amounts are subject to reduction but payable at different times, statesuch amounts shall be reduced on a pro rata basis but not below zero. (iii) If, local notwithstanding any reductions described in this Section 24(b), the IRS determines that any Covered Payment constitutes an excess parachute payment (as defined by Section 280G(b) of the Code), then this Section 24(b) shall be reapplied based on the IRS’ determination and foreign income and employment taxesExecutive shall be obligated to pay back to Employer, within 30 days after a final IRS determination or, in the event that Executive challenges the final IRS determination, a final judicial determination, the portion of the Covered Payment required to avoid imposition of the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determined. Unless the Company and Executive otherwise agree in writing, any . (iv) Any determination required under this Section 5 24(b), including whether any payments or benefits are parachute payments, shall be made by Employer in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”)its sole discretion. In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants Employer with such information and documents as the Accountants Employer may reasonably request in order to make a determination under this Section 524(b). The Company Employer’s determinations shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 5be final and binding on Employer and Executive.

Excise Tax. In the event that any benefits payable to Executive pursuant to the Transition Section 6 of this Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 6(d), would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s Termination Benefits hereunder shall be either (aA) provided to Executive in full, or (bB) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local local, and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determinedTax. Unless the Company Heska and Executive otherwise agree in writing, any determination required under this Section 5 6(d) shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”)Heska’s independent accountants. In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company Heska of which benefits he Executive chooses to reduce within ten (10) days after written notice of the Accountantsaccountants’ determination, and Executive has not disputed the Accountantsaccountants’ determination, then the Company Heska shall select the benefits to be reduced. For purposes of making the calculations required by this Section 56(d), the Accountants accountants may make reasonable assumptions and approximations concerning the applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, Code and other applicable legal authority. The Company Heska and Executive shall furnish to the Accountants accountants such information and documents as the Accountants accountants may reasonably request in order to make a determination under this Section 56(d). The Company Heska shall bear all costs the cost of all fees the Accountants charge accountants may reasonably incur in connection with any calculations contemplated by this Section 56(d).

Excise Tax. In the event that the Executive becomes entitled to Change in Control Severance Benefits or any other payment or benefit under this Agreement, or under any other agreement, plan or arrangement for which Executive is eligible with (1) the Employer, (2) any Person or Entity whose actions result in a Change in Control, or (3) CMS Energy Corporation or any of its Affiliates (all of such payments and benefits payable collectively referred to Executive pursuant to the Transition Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “CodeTotal Payments”), and if all or any comparable successor provisions, and (ii) part of the Total Payments would but for this Section 5 would Article 6 be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code, Code (or any comparable successor provisions (the “Excise Tax”similar tax that may hereafter be imposed), then Executive’s Termination Benefits hereunder shall the payments and benefits to be either paid or provided under this Agreement may be reduced (a) provided to Executive in full, or (b) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject repaid to the Employer, if previously paid or provided) as provided below. In no event shall the Executive be entitled to receive a tax gross-up payment or Excise Tax, whichever Tax reimbursement. For purposes of this Article 6 the terms “Excess Parachute Payment” and “Parachute Payment” will have the meanings assigned to them by Section 280G of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may Code. All determinations required to be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determined. Unless the Company and Executive otherwise agree in writing, any determination required made under this Section 5 Article 6 shall be made in writing in good faith by a nationally recognized accounting firm CMS Energy Corporation’s independent certified public accountants, appointed prior to any change in ownership (as defined in Code Section 280G, and/or tax counsel selected by the Company such accountants (the “AccountantsAccounting Firm”). In ) in accordance with the event principles of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Code Section 5, the Accountants 280G. The Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, Code and other applicable legal authority. The Company All fees and Executive shall furnish to expenses of the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. The Company shall bear the cost of all fees the Accountants charge Accounting Firm for its services in connection with the calculations under this Article 6 shall be paid by the Employer. The Accounting Firm shall make an initial determination at the time of a Change in Control. In addition, the Committee shall direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Employer and the Executive within 15 calendar days after the date of the Executive’s Qualifying Termination, if applicable, and any calculations contemplated other such time or times as may be reasonably requested by this Section 5the Employer or the Executive.

Excise Tax. In the event that Should any benefits payable payments hereunder or contemplated hereby be subject to Executive excise tax pursuant to the Transition Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”)may be amended, or any successor or similar provision thereto, or comparable successor provisionsstate or local tax laws, MTS shall pay to the Executive such additional compensation as is necessary (after taking into account all federal, state and local income taxes payable by the Executive as a result of the receipt of such compensation) to place the Executive in the same after-tax position he/she would have been in had no such excise tax (or any interest or penalties thereon) been paid or incurred. MTS shall pay such additional compensation upon the earlier of (i) the time at which MTS withholds such excise tax from any payments to the Executive; or (ii) but for this Section 5 would be subject 30 days after the Executive notifies MTS that the Executive has paid such excise tax pursuant to a tax return filed by the Executive which takes the position that such excise tax is due and payable in reliance on a written opinion of the Executive's tax counsel that it is more likely than not that such excise tax is due and payable, or, if later, the date the IRS notifies Executive that such amount is due and payable. Without limiting the obligation of MTS hereunder, the Executive agrees, in the event the Executive makes any payment pursuant to the excise tax imposed by Section 4999 of the Codepreceding sentence, or any comparable successor provisions (the “Excise Tax”), then Executive’s Termination Benefits hereunder shall be either (a) provided to Executive in full, or (b) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determined. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 shall be made in writing negotiate with MTS in good faith with respect to procedures reasonably requested by a nationally recognized accounting firm selected by MTS which would afford MTS the Company (ability to contest the “Accountants”). In imposition of such excise tax; provided, however, that the event Executive will not be required to afford MTS any right to contest the applicability of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification any such excise tax to the Company of which benefits he chooses to reduce within ten (10) days after written notice extent that the Executive reasonably determines that such contest is inconsistent with the overall tax interests of the Accountants’ determinationExecutive. MTS agrees to hold in confidence and not to disclose, and Executive has not disputed without the Accountants’ determinationExecutive's prior written consent, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish any information with regard to the Accountants such information and documents as the Accountants may reasonably request in order Executive's tax position which MTS obtains pursuant to make a determination under this Section 5. The Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 5subsection.

Excise Tax. In the event that any the severance and other benefits provided in this Agreement or otherwise payable to Executive pursuant to the Transition Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”)then, then except as provided by Section 11(b) below: Executive’s Termination Benefits hereunder benefits shall be either (ai) provided to Executive delivered in full, or (bii) provided to Executive delivered as to such lesser extent which would result in no portion of such benefits being subject to the Excise Taxexcise tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, amounts results in the receipt by Executive, Executive on an after-tax basis, of the greatest amount of benefits. Any reduction in payments and/or benefits required by this Section shall occur in the following order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid or provided to Executive. In the event that acceleration of vesting of equity awards is to be reduced, notwithstanding that all or some portion such acceleration of such benefits may vesting shall be taxable under cancelled in the Excise Tax and Executive shall have no right to Termination Benefits in excess reverse order of the amount so determineddate of grant for the Executive’s equity awards. If two or more equity awards are granted on the same day, the equity awards will be reduced on a pro-rata basis. Unless Executive and the Company and Executive agree otherwise agree in writing, any the determination required under this Section 5 shall of Executive’s excise tax liability will be made in writing in good faith by a nationally recognized accounting firm selected the independent auditors who are primarily used by the Company immediately prior to the Change in Control (the “Accountants”). In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 511, the 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, . Executive and other applicable legal authority. The the Company and Executive shall agree to furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 511. The Company shall will bear the cost of all fees costs the Accountants charge and/or Executive may reasonably incur in connection with any calculations contemplated by this Section 511.

Excise Tax. (i) In the event that any payments or benefits payable provided or to be provided by Bank or its Affiliates to Executive or for Executive’s benefit pursuant to the Transition terms of this Agreement or otherwise (“Termination BenefitsCovered Payments”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisionsprovision thereto) and would, and (ii) but for this Section 5 would 24(b), be subject to the excise tax imposed by Section 4999 of the Code, Code (or any comparable successor provisions provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then Executive’s Termination Benefits hereunder the Covered Payments shall be either reduced (abut not below zero) provided to Executive in full, or (b) provided the minimum extent necessary to Executive as to such lesser extent which would result in ensure that no portion of such benefits being the Covered Payments is subject to the Excise Tax. (ii) The Covered Payments shall be reduced in a manner that maximizes Executive’s economic position. In applying this principle, whichever the reduction shall be made in a manner consistent with the requirements of Section 409A of the foregoing amountsCode, when taking into account applicable federaland where two economically equivalent amounts are subject to reduction but payable at different times, statesuch amounts shall be reduced on a pro rata basis but not below zero. (iii) If, local notwithstanding any reductions described in this Section 24(b), the IRS determines that any Covered Payment constitutes an excess parachute payment (as defined by Section 280G(b) of the Code), then this Section 24(b) shall be reapplied based on the IRS’ determination and foreign income and employment taxesExecutive shall be obligated to pay back to Bank, within 30 days after a final IRS determination or, in the event that Executive challenges the final IRS determination, a final judicial determination, the portion of the Covered Payment required to avoid imposition of the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determined. Unless the Company and Executive otherwise agree in writing, any . (iv) Any determination required under this Section 5 24(b), including whether any payments or benefits are parachute payments, shall be made by Bank in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”)its sole discretion. In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants Bank with such information and documents as the Accountants Bank may reasonably request in order to make a determination under this Section 524(b). The Company Bank’s determinations shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 5be final and binding on Bank and Executive.

Excise Tax. In (a) If apart from the event that provisions of this Section 6 all or any benefits portion of the amounts payable to Executive pursuant to Employee under this Agreement, either alone or together with other payments Employee receives from the Transition Agreement Association (“Termination Benefits”) (i) or a successor), would constitute “"excess parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 that would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions Code (the “"Excise Tax”"), then Executive’s Termination Benefits the amounts payable hereunder shall be either reduced if and to the extent set forth in this Section 6. The payments hereunder shall be reduced by the minimum amount necessary to eliminate application of the Excise Tax (athe "Reduction Amount") provided if and only if Employee’s net after-tax economic benefit under this Agreement after such reduction exceeds what Employee’s net after-tax economic benefit under this Agreement would be without such reduction. In each case Employee’s net after-tax economic benefit shall be determined as the amount of the cash payments to Executive in fullbe made to Employee under this Agreement reduced by Employee’s state and federal income tax, Excise Tax, FICA tax and other tax liabilities attributable to all payments to be made to Employee under this Agreement and under any other agreements and arrangements providing payments to Employee from the Association (or a successor) that would constitute "parachute payments" within the meaning of Section 280G of the Code. (b) provided to Executive as to such lesser extent which would result in no portion The determination of such benefits being subject to the amount of the Excise Tax, whichever of the foregoing amountsReduction Amount, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an Employee’s net after-tax basiseconomic benefit and the assumptions to be utilized in arriving at such determinations, of shall be made, at the greatest amount of benefitsAssociation’s expense, notwithstanding that all by an independent accounting firm (the "Accounting Firm") retained by the Association and identified to Employee prior to any Change in Control. If no other Accounting Firm is identified to Employee prior to a Change in Control, the Accounting Firm shall be KPMG LLP. The Accounting Firm shall provide detailed supporting calculations both to the Association and the Employee at such time or some portion of such benefits times as may be taxable under requested by the Excise Tax and Executive shall have no right to Termination Benefits in excess Association and, if requested by Employee, within fifteen (15) business days following the Accounting Firm’s receipt of notice from the amount so determinedEmployee. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 Such calculations shall be made in writing in good faith by a nationally recognized accounting firm selected from information available to the Accounting Firm, which information may be supplemented by the Company (Association and/or Employee after reviewing the “Accountants”)Accounting Firm’s initial calculations. In Any final determination by the event of a reduction of benefits hereunder, Executive Accounting Firm shall be given binding upon the choice of which benefits Association and Employee absent clear error. The Association shall provide the Accounting Firm the Employee’s payroll records for the current year and prior five years and shall cause the Accounting Firm to reduce. If Executive does not provide written identification to make and complete the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, determinations and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the supporting calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish hereunder in sufficient time to the Accountants such information and documents effect any reduction in payment as the Accountants may reasonably request in order to make a determination under this Section 5. The Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 5set forth herein.

Excise Tax. In the event that Notwithstanding any benefits payable to Executive pursuant other provision to the Transition Agreement (“Termination Benefits”) (i) constitute “parachute payments” within contrary in this Agreement, in any other agreement between Executive and the meaning Company or any of its affiliates, or in any plan maintained by the Company or any of its affiliates, if there is a Section 280G Change in Control (as defined in Section 4(e)(i) below), the provisions set forth below shall apply: (a) Except as otherwise provided in Section 4(b) below, if it is determined in accordance with Section 4(d) below that any portion of the Internal Revenue Code of 1986, Payments (as amended (defined in Section 4(e)(ii) below) that otherwise would be paid or provided to Executive or for his benefit in connection with the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 280G Change in Control would be subject to the excise tax imposed by Section under section 4999 of the Code, or any comparable successor provisions Code (the “Excise Tax”), then Executive’s Termination Benefits hereunder such Payments shall be either (a) provided to Executive reduced by the smallest amount necessary in full, or (b) provided to Executive as to such lesser extent which would result in order for no portion of such benefits being Executive’s total Payments to be subject to the Excise Tax, whichever . (b) No reduction in any of Executive’s Payments shall be made pursuant to Section 4(a) above if the After Tax Amount of the foregoing amountsPayments payable to him without such reduction would exceed the After Tax Amount of the reduced Payments payable to him in accordance with Section 4(a) above. For purposes of the foregoing, when taking into account applicable (i) the “After Tax Amount” of Executive’s Payments, as computed with, and as computed without, the reduction provided for under Section 4(a), shall mean the amount of the Payments, as so computed, that Executive would retain after payment of all taxes (including, without limitation, any federal, state, state or local and foreign income and employment taxes, the Excise TaxTax or other excise taxes, any employment, social security or Medicare taxes, and any other taxes) imposed with respect to such Payments in the year or years in which payable; and (ii) the amount of such taxes shall be computed at the rates in effect under the applicable tax laws in the year in which the 280G Change in Control occurs, or if then ascertainable, the rates in effect in any later year in which any Payment is expected to be paid following the 280G Change in Control, and in the case of any income taxes, results by using the maximum combined federal, state and (if applicable) local income tax rates then in effect under such laws. (c) Any reduction in Executive’s Payments required to be made pursuant to Section 4(a) above (the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determined. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 “Required Reduction”) shall be made as follows: (i) first, any option awards that, at the time of the 280G Change in writing Control have an exercise price that is greater than the fair market value of a share of Company common stock and that vest solely based on Executive’s continued service with the Company, and that pursuant to paragraph (c) of Treas. Reg. §1.280G-1, Q/A 24 are treated as contingent on the 280G Change in good faith Control because they become vested as a result of the 280G Change in Control, shall be reduced, by canceling the acceleration of their vesting; (ii) second, any outstanding performance-based cash or equity incentive awards the performance goals for which had not been attained prior to the occurrence of the 280G Change in Control, to the extent such awards are treated as Payments as defined in Section 4(d)(ii) below, shall be reduced; (iii) third, any severance payments or benefits, or any other Payments the full amounts of which are treated as contingent on the 280G Change in Control pursuant to paragraph (a) of Treas. Reg. §1.280G-1, Q/A 24 shall be reduced; and (iv) fourth, any cash or equity awards, or nonqualified deferred compensation amounts, that vest solely based on Executive’s continued service with the Company, and that pursuant to paragraph (c) of Treas. Reg. §1.280G-1, Q/A 24 are treated as contingent on the 280G Change in Control because they become vested as a result of the 280G Change in Control, shall be reduced, by canceling the acceleration of their vesting. In each case, the amounts of the Payments shall be reduced in the inverse order of their originally scheduled dates of payment or vesting, as applicable, and shall be so reduced only to the extent necessary to achieve the Required Reduction. (d) A determination as to whether any reduction in Executive’s Payments is required pursuant to Section 4(a) above, and if so, as to which Payments are to be reduced and the amount of the reduction to be made to any such Payments, shall be made by no later than thirty (30) days prior to the closing of the transaction or the occurrence of the event that constitutes the 280G Change in Control, or as soon thereafter as administratively practicable. Such determinations, and the assumptions to be utilized in arriving at such determinations, shall be made by the Company’s independent auditor or, if such auditor is not permitted to provide such advice, by a nationally recognized public accounting firm reasonably selected by the Company Board with the consent of Executive, which consent shall not be unreasonably withheld or delayed (the “AccountantsAuditor”). In the event The Auditor shall provide a written report of a reduction of benefits its determinations hereunder, including detailed supporting calculations, both to Executive and to the Company. The fees and expenses of the Auditor shall be given the choice of which benefits to reduce. If Executive does not provide written identification to paid entirely by the Company of which benefits he chooses to reduce within ten and the determinations made by Auditor hereunder shall be binding upon Executive and the Company. (10e) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 5foregoing, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning following terms shall have the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. The Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 5.following meanings:

Excise Tax. In (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any benefits payment, benefit, vesting or distribution to or for the benefit of the Executive (whether paid or payable to Executive or distributed or distributable pursuant to the Transition terms of this Agreement or otherwise) (a “Termination BenefitsPayment”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) would but for this Section 5 would 17 be subject to the excise tax imposed by Section §4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s Termination Benefits hereunder the Payments shall be either be (ai) provided to Executive in full, or (bii) provided to Executive as to such lesser extent which would result in no portion of such benefits Payments being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, Executive on an after-tax basis, of the greatest amount of benefitsPayments, notwithstanding that all or some portion of such benefits Payments may be taxable under subject to the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determinedTax. Unless the Company and Executive otherwise agree in writing, any Any determination required under this Section 5 shall be made in writing in good faith by a nationally recognized accounting firm the Company's independent certified public accountants, appointed prior to any change in ownership (as defined under Code §280G(b)(2)), and/or tax counsel selected by the Company such accountants (the “AccountantsAccounting Firm”)) in accordance with the principles of §280G of the Code. In the event of a reduction of benefits Payments hereunder, Executive the Payments shall be given reduced as follows: (i) first from 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) from equity awards that are partially included as parachute payments, in each instance provided that §409A is complied with and the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits Payments to be reducedmade later in time are to be reduced before Payments to be made sooner in time. For purposes of making the calculations required by this Section 5Section, the Accountants Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Codecode, and other applicable legal authority. The Company and Executive shall furnish to the Accountants Accounting Firm such information and documents as the Accountants Accounting Firm may reasonably request in order to make a determination under this Section 5Section. All fees and expenses of the Accounting Firm shall be borne solely by the Company. (b) If, notwithstanding any reduction described in this Section, the Internal Revenue Service (the “IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of the Payments as described above, then Executive shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that Executive challenges the final IRS determination, a final judicial determination, a portion of the Payments equal to the “Repayment Amount.” The Repayment Amount with respect to the Payments shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive's net after-tax proceeds with respect to the Payments (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on such payment) shall be maximized. The Repayment Amount with respect to the Payments shall be zero if a Repayment Amount of more than zero would not result in Executive's net after-tax proceeds with respect to the Payments being maximized. If the Excise Tax is not eliminated pursuant to this paragraph, Executive shall pay the Excise Tax. (c) Notwithstanding any other provision of this Section, if (i) there is a reduction in the Payments as described in this Section, (ii) the IRS later determines that Executive is liable for the Excise Tax, the payment of which would result in the maximization of Executive's net after-tax proceeds (calculated as if Executive's Payments had not previously been reduced), and (iii) Executive pays the Excise Tax, then the Company shall bear pay to Executive those Payments which were reduced pursuant to this subsection as soon as administratively possible after Executive pays the cost of all fees Excise Tax so that Executive's net after-tax proceeds with respect to the Accountants charge in connection with any calculations contemplated by this Section 5Payments are maximized.

Excise Tax. In Notwithstanding anything in this Employment Agreement to the contrary, in the event that it shall be determined that any benefits payment, distribution, or other action by the Company to or for Xxxxxx’x benefit (whether paid or payable to Executive or distributed or distributable pursuant to the Transition terms of this Employment Agreement (“Termination Benefits”or otherwise) (i) constitute a “Parachute Payment”), would result in an “excess parachute paymentspayment” within the meaning of Section 280G 280G(b)(i) of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisionsand the value determined in accordance with Code Section 280G(d)(4) of the Parachute Payments, net of all taxes imposed on Xxxxxx (the “Net After-Tax Amount”) that Xxxxxx would receive would be increased if the Parachute Payments were reduced, then the Parachute Payments shall be reduced by an amount (the “Reduction Amount”) so that the Net After-Tax Amount after such reduction is greatest. For purposes of determining the Net After-Tax Amount, Xxxxxx shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Parachute Payment is to be made, and (ii) but pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Parachute Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Subject to the provisions of this Section 5 would 8A, all determinations required to be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s Termination Benefits hereunder shall be either (a) provided to Executive in full, or (b) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determined. Unless the Company and Executive otherwise agree in writing, any determination required made under this Section 5 8A, including the Net After-Tax Amount, the Reduction Amount and the Parachute Payments that are to be reduced pursuant to this Section 8A and the assumptions to be utilized in arriving at such determinations, shall be made in writing in good faith by a an independent public accounting firm of nationally recognized accounting firm standing selected by the Company and reasonably acceptable to Xxxxxx (the “AccountantsAccounting Firm”), which shall provide detailed supporting calculations both to the Company and Xxxxxx within fifteen (15) business days of the receipt of notice from Xxxxxx that there has been a Parachute Payment, or such earlier time as is requested by Xxxxxx. For the avoidance of doubt, PricewaterhouseCoopers, Deloitte & Touche, Ernst & Young and KPMG are firms reasonably acceptable to Xxxxxx. The Accounting Firm’s decision as to which Parachute Payments are to be reduced shall be made (a) only from Parachute Payments that the Accounting Firm determines reasonably may be characterized as “parachute payments” under Code Section 280G; (b) first, only from Parachute Payments that are required to be made in cash, (c) second, only with respect to any amounts that are not payable pursuant to a “nonqualified deferred compensation plan” subject to Code Section 409A, until those payments have been reduced to zero, and (d) in each of the foregoing cases, in reverse chronological order, to the extent that any Parachute Payments subject to reduction are made over time (e.g., in installments). In the event of a reduction of benefits hereunderno event, Executive however, shall any Parachute Payments be given the choice of which benefits to reduce. If Executive does not provide written identification reduced if and to the Company extent such reduction would cause a violation of which benefits he chooses to reduce within ten (10) days after written notice Code Section 409A or other applicable law. All fees and expenses of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination Accounting Firm under this Section 58A shall be borne solely by the Company. The Company shall bear Any determination by the cost of all fees the Accountants charge in connection with any calculations contemplated by Accounting Firm under this Section 58A shall be binding upon the Company and Xxxxxx.

Excise Tax. In the event that any benefits payable to Executive pursuant to this Agreement or the Transition Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s Termination Benefits hereunder shall be either (a) provided to Executive in full, or (b) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determinedTax. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”). In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. The Company shall bear the cost of all fees costs the Accountants charge may reasonably incur in connection with any calculations contemplated by this Section 5. If, notwithstanding any reduction described in this Section 5, the IRS determines that Executive is liable for the Excise Tax as a result of the receipt of any Termination Benefits, then Executive shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that Executive challenges the final IRS determination, a final judicial determination, a portion of the Termination Benefits equal to the “Repayment Amount.” The Repayment Amount shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net after-tax proceeds with respect to the Termination Benefits (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on such benefits) shall be maximized. The Repayment Amount shall be zero if a Repayment Amount of more than zero would not result in Executive’s net after-tax proceeds with respect to the Termination Benefits being maximized. If the Excise Tax is not eliminated pursuant to this paragraph, Executive shall pay the Excise Tax. Notwithstanding any other provision of this Section 5, if (1) there is a reduction in the payment of the Termination Benefits as described in this Section 5, (2) the IRS later determines that Executive is liable for the Excise Tax, the payment of which would result in the maximization of Executive’s net after-tax proceeds (calculated as if Executive’s benefits had not previously been reduced), and (3) Executive pays the Excise Tax, then the Company shall pay to Executive those Termination Benefits which were reduced pursuant to this subsection as soon as administratively possible after Executive pays the Excise Tax so that Executive’s net after-tax proceeds with respect to the payment of the Termination Benefits are maximized.

Excise Tax. In the event that any the benefits payable to Executive pursuant to the Transition provided for in this Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, ) and (ii) but for this Section 5 would will be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions Code (the “Excise Tax”), then Executive’s Termination Benefits hereunder shall severance benefits payable under the terms of this Agreement will be either (a) provided to Executive delivered in full, or (b) provided to Executive delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account the applicable federal, state, state and local income taxes and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess Section 4999 of the amount so determinedCode. Unless Executive and the Company and Executive agree otherwise agree in writing, any the determination of Executive’s Excise Tax liability, if any, and the amount, if any, required to be paid under this Section 5 shall 9 will be made in writing in good faith by a nationally recognized accounting firm selected the independent auditors who are primarily used by the Company immediately prior to the Change of Control (the “Accountants”). In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 510, the 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, . Executive and other applicable legal authority. The the Company and Executive shall agree to furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 59. The Company shall will bear the cost of all fees costs the Accountants charge may incur in connection with any calculations contemplated by this Section 59.

Excise Tax. In the event that Notwithstanding any benefits payable to Executive pursuant other provision to the Transition Agreement (“Termination Benefits”) (i) constitute “parachute payments” within contrary in this Agreement, in any other agreement between Executive and the meaning Xxxxxx or any of its affiliates, or in any plan maintained by Xxxxxx or any of its affiliates, if there is a Section 280G Change in Control (as defined in Section 4(e)(i) below), the provisions set forth below shall apply: (a) Except as otherwise provided in Section 4(b) below, if it is determined in accordance with Section 4(d) below that any portion of the Internal Revenue Code of 1986, Payments (as amended (defined in Section 4(e)(ii) below) that otherwise would be paid or provided to Executive or for his benefit in connection with the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 280G Change in Control would be subject to the excise tax imposed by Section under section 4999 of the Code, or any comparable successor provisions Code (the “Excise Tax”), then Executive’s Termination Benefits hereunder such Payments shall be either (a) provided to Executive reduced by the smallest amount necessary in full, or (b) provided to Executive as to such lesser extent which would result in order for no portion of such benefits being Executive’s total Payments to be subject to the Excise Tax, whichever . (b) No reduction in any of Executive’s Payments shall be made pursuant to Section 4(a) above if the After Tax Amount of the foregoing amountsPayments payable to him without such reduction would exceed the After Tax Amount of the reduced Payments payable to him in accordance with Section 4(a) above. For purposes of the foregoing, when taking into account applicable (i) the “After Tax Amount” of Executive’s Payments, as computed with, and as computed without, the reduction provided for under Section 4(a), shall mean the amount of the Payments, as so computed, that Executive would retain after payment of all taxes (including without limitation any federal, state, state or local and foreign income and employment taxes, the Excise TaxTax or other excise taxes, any employment, social security or Medicare taxes, and any other taxes) imposed with respect to such Payments in the year or years in which payable; and (ii) the amount of such taxes shall be computed at the rates in effect under the applicable tax laws in the year in which the 280G Change in Control occurs, or if then ascertainable, the rates in effect in any later year in which any Payment is expected to be paid following the 280G Change in Control, and in the case of any income taxes, results by using the maximum combined federal, state and (if applicable) local income tax rates then in effect under such laws. (c) Any reduction in Executive’s Payments required to be made pursuant to Section 4(a) above (the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determined. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 “Required Reduction”) shall be made as follows: (i) first, any option awards that, at the time of the 280G Change in writing Control have an exercise price that is greater than the fair market value of a share of Xxxxxx common stock and that vest solely based on Executive’s continued service with the Xxxxxx Group, and that pursuant to paragraph (c) of Treas. Reg. §1.280G-1, Q/A 24 are treated as contingent on the 280G Change in good faith Control because they become vested as a result of the 280G Change in Control, shall be reduced, by canceling the acceleration of their vesting; (ii) second, any outstanding performance-based cash or equity incentive awards the performance goals for which had not been attained prior to the occurrence of the 280G Change in Control, to the extent such awards are treated as Payments as defined in Section 4(d)(ii) below, shall be reduced; (iii) third, any severance payments or benefits, or any other Payments the full amounts of which are treated as contingent on the 280G Change in Control pursuant to paragraph (a) of Treas. Reg. §1.280G-1, Q/A 24 shall be reduced; and (iv) fourth, any cash or equity awards, or nonqualified deferred compensation amounts, that vest solely based on Executive’s continued service with the Xxxxxx Group, and that pursuant to paragraph (c) of Treas. Reg. §1.280G-1, Q/A 24 are treated as contingent on the 280G Change in Control because they become vested as a result of the 280G Change in Control, shall be reduced, by canceling the acceleration of their vesting. In each case, the amounts of the Payments shall be reduced in the inverse order of their originally scheduled dates of payment or vesting, as applicable, and shall be so reduced only to the extent necessary to achieve the Required Reduction. (d) A determination as to whether any reduction in Executive’s Payments is required pursuant to Section 4(a) above, and if so, as to which Payments are to be reduced and the amount of the reduction to be made to any such Payments, shall be made by no later than thirty (30) days prior to the closing of the transaction or the occurrence of the event that constitutes the 280G Change in Control, or as soon thereafter as administratively practicable. Such determinations, and the assumptions to be utilized in arriving at such determinations, shall be made by Xxxxxx’x independent auditor or, if such auditor is not permitted to provide such advice, by a nationally recognized public accounting firm reasonably selected by the Company Board with the consent of Executive, which consent shall not be unreasonably withheld or delayed (the “AccountantsAuditor”). In the event The Auditor shall provide a written report of a reduction of benefits its determinations hereunder, including detailed supporting calculations, both to Executive and to Xxxxxx. The fees and expenses of the auditor shall be given paid entirely by Xxxxxx and the choice of which benefits to reduce. If determinations made by Auditor hereunder shall be binding upon Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten and Xxxxxx. (10e) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 5foregoing, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning following terms shall have the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. The Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 5.following meanings:

Excise Tax. In the event that any the severance and other benefits provided in this Agreement or otherwise payable to Executive pursuant to the Transition Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, ) and (ii) but for this Section 5 would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”)then, then except as provided by Section 10(b) below: Executive’s Termination Benefits hereunder benefits shall be either (ai) provided to Executive delivered in full, or (bii) provided to Executive delivered as to such lesser extent which would result in no portion of such benefits being subject to the Excise Taxexcise tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, amounts results in the receipt by Executive, Executive on an after-tax basis, of the greatest amount of benefits, notwithstanding that all . Any reduction in payments and/or benefits required by this Section shall occur in the following order: (1) reduction of cash payments; and (2) reduction of other benefits paid or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right provided to Termination Benefits in excess of the amount so determinedExecutive. Unless Executive and the Company and Executive agree otherwise agree in writing, any the determination required under this Section 5 shall of Executive’s excise tax liability will be made in writing in good faith by a nationally recognized accounting firm selected the independent auditors who are primarily used by the Company immediately prior to the Change in Control (the “Accountants”). In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 510, the 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, . Executive and other applicable legal authority. The the Company and Executive shall agree to furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 510. The Company shall will bear the cost of all fees costs the Accountants charge and/or Executive may reasonably incur in connection with any calculations contemplated by this Section 510.

Excise Tax. In the event that any benefits payable to Executive pursuant to the Transition Section 6 of this Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 6(d), would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s Termination Benefits hereunder shall be either (aA) provided to Executive in full, or (bB) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local local, and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determinedTax. Unless the Company Heska and Executive otherwise agree in writing, any determination required under this Section 5 6(d) shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”)Heska’s independent accountants. In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company Heska of which benefits he Executive chooses to reduce within ten (10) days after written notice of the Accountantsaccountants’ determination, and Executive has not disputed the Accountantsaccountants’ determination, then the Company Heska shall select the benefits to be reduced. For purposes of making the calculations required by this Section 56(d), the Accountants accountants may make reasonable assumptions and approximations concerning 5 applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, Code and other applicable legal authority. The Company Heska and Executive shall furnish to the Accountants accountants such information and documents as the Accountants accountants may reasonably request in order to make a determination under this Section 56(d). The Company Heska shall bear all costs the cost of all fees the Accountants charge accountants may reasonably incur in connection with any calculations contemplated by this Section 56(d).

Excise Tax. In the event that any benefits payable to Executive pursuant to the Transition Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s Termination Benefits hereunder shall be either (a) provided to Executive in full, or (b) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determined. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”). In the event of a reduction of benefits hereunder, Executive the Termination Benefits shall be given reduced in the choice following order: (1) reduction of which benefits to reduce. If Executive does not provide written identification any cash severance payments otherwise payable to the Company of which benefits he chooses to reduce within ten (10) days after written notice Participant that are exempt from Section 409A of the Accountants’ determinationCode; (B) reduction of any other cash payments or benefits otherwise payable to the Participant that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity awards that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to the Participant on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and Executive has not disputed payments with respect to any equity awards that are exempt from Section 409A of the Accountants’ determinationCode; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity awards that are exempt from Section 409A of the Code, then the Company shall select the benefits to in each case beginning with payments that would otherwise be reducedmade last in time. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. The Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 5.

Excise Tax. In (a) Anything in this Agreement to the contrary notwithstanding, in the event that any benefits payable to Executive pursuant Xxxxx Xxxxxx and Company LLC or such other accounting firm as shall be designated by the Company prior to the Transition Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning effective time of Section 280G a Change of the Internal Revenue Code of 1986, as amended Control (the “CodeAccounting Firm”)) shall determine that receipt of all payments, benefits or any comparable successor provisionsdistributions by the Company or its affiliates in the nature of compensation to or for the Executive’s benefit, and whether paid or payable pursuant to this Agreement or otherwise (iia “Payment”) but for this Section 5 would be subject the Executive to the excise tax imposed by under Section 4999 of the Code, the Accounting Firm shall determine whether to reduce any of the Payments paid or any comparable successor provisions payable pursuant to this Agreement that are taxable in the year in which the change in ownership or control occurs (the “Excise TaxAgreement Payments”) to the Reduced Amount (as defined below). The Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Executive’s Agreement Payments were reduced to the Reduced Amount. If such a determination is not made by the Accounting Firm, the Executive shall receive all Agreement Payments to which the Executive is entitled under this Agreement. (b) If the Accounting Firm determines that aggregate Agreement Payments should be reduced to the Reduced Amount, the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof, and the Executive may then elect, in the Executive’s sole discretion, which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the present value (determined for all purposes of section 16 of this Agreement in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of Code) of the aggregate Agreement Payments equals the Reduced Amount), and shall advise the Company in writing of the Executive’s election within ten days of the Executive’s receipt of notice. If no such election is made by the Executive within such ten-day period, the Company may elect which of such Agreement Payments shall be eliminated or reduced (as long as after such election the present value of the aggregate Agreement Payments equals the Reduced Amount) and shall notify the Executive promptly of such election. All determinations made by the Accounting Firm under this section 16 shall be binding upon the Company and the Executive in the absence of manifest error and shall be made within 60 days of the effective time of the Change of Control. As promptly as practicable following such determination, the Company shall pay to or distribute for the Executive’s benefit such Agreement Payments as are then due to the Executive under this Agreement and shall promptly pay to or distribute for the Executive’s benefit in the future such Agreement Payments as become due to the Executive under this Agreement. All fees and expenses of the Accounting Firm shall be borne solely by the Company. (c) As a result of the uncertainty in the application of Sections 280G and 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by the Company to or for the benefit of the Executive pursuant to this Agreement which should not have been so paid or distributed (“Overpayment”) or that additional amounts which will have not been paid or distributed by the Company to or for the benefit of the Executive pursuant to this Agreement could have been so paid or distributed (“Underpayment”), then Executive’s Termination Benefits hereunder shall be either (a) provided to Executive in fulleach case, or (b) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to consistent with the Excise Tax, whichever calculation of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determined. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”)Reduced Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a reduction deficiency by the Internal Revenue Service against either the Company or the Executive which the Accounting Firm believes has a high probability of benefits hereundersuccess determines that an Overpayment has been made, the Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification pay any such Overpayment to the Company of which benefits he chooses to reduce within ten (10together with interest at the applicable federal rate provided for in section 7872(f)(2) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code; provided, and other applicable legal authority. The Company and however, that no amount shall be payable by the Executive shall furnish to the Accountants Company if and to the extent such information payment would not either reduce the amount on which the Executive is subject to tax under section 1 and documents as section 4999 of the Accountants may reasonably request Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive together with interest at the applicable federal rate provided for in order to make a determination under this Section 5. The Company shall bear 7872(f)(2) of the cost of all fees Code. (d) For purposes hereof, the Accountants charge in connection with any calculations contemplated by this Section 5.following terms have the meanings set forth below:

Excise Tax. In the event that any the benefits payable to Executive pursuant to the Transition provided for in this Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, ) and (ii) but for this Section 5 would will be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions Code (the “Excise Tax”), then Executive’s Termination Benefits hereunder shall severance benefits payable under the terms of this Agreement will be either (a) provided to Executive delivered in full, or (b) provided to Executive delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account the applicable federal, state, state and local income taxes and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess Section 4999 of the amount so determinedCode. Unless Executive and the Company and Executive agree otherwise agree in writing, any the determination of Executive’s Excise Tax liability, if any, and the amount, if any, required to be paid under this Section 5 shall 10 will be made in writing in good faith by BDO Sxxxxxx or by a nationally recognized national “Big Four” accounting firm selected by the Company (the “Accountants”). In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 510, the 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, . Executive and other applicable legal authority. The the Company and Executive shall agree to furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 510. The Company shall will bear the cost of all fees costs the Accountants charge may incur in connection with any calculations contemplated by this Section 510.

Excise Tax. In the event that any benefits payable to Executive pursuant to the Transition this Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 7(e) would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s Termination Benefits hereunder shall be either (a) provided to Executive in full, or (b) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determinedTax. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 7(e) shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”)Company’s independent accountants. In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountantsaccountants’ determination, and Executive has not disputed the Accountantsaccountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 57(e), the Accountants accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 57(e). The Company shall bear all costs the cost of all fees the Accountants charge accountants may reasonably incur in connection with any calculations contemplated by this Section 57(e).

Excise Tax. (a) In the event that any the severance and other benefits provided in this Agreement or otherwise payable to Executive pursuant to the Transition Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, ) and (ii) but for this Section 5 would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”)then, then except as provided by Section 9(b) below, Executive’s Termination Benefits hereunder benefits shall be either (ai) provided to Executive delivered in full, or (bii) provided to Executive delivered as to such lesser extent which would result in no portion of such benefits being subject to the Excise Taxexcise tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, amounts results in the receipt by Executive, Executive on an after-tax basis, of the greatest amount of benefits. Any reduction in payments and/or benefits required by this Section shall occur in the following order: (i) reduction of cash payments; (ii) reduction of vesting acceleration of Equity Awards; and (iii) reduction of other benefits paid or provided to Executive. In the event that acceleration of vesting of Equity Awards is to be reduced, notwithstanding that all or some portion such acceleration of such benefits may vesting shall be taxable under cancelled in the Excise Tax and Executive shall have no right to Termination Benefits in excess reverse order of the amount so determineddate of grant for the Executive’s Equity Awards. If two or more Equity Awards are granted on the same day, the Equity Awards will be reduced on a pro-rata basis. (b) Unless Executive and the Company agree otherwise in writing, the determination of Executive’s excise tax liability will be made in writing by an independent auditor of national reputation and expertise in assessing liability under Sections 280G or 4999 of the Code as mutually agreed between the Company and Executive otherwise agree in writing, any determination required under this Section 5 shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”). In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 59, the 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, . Executive and other applicable legal authority. The the Company and Executive shall agree to furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 59. The Company shall will bear the cost of all fees costs the Accountants charge and/or Executive may reasonably incur in connection with any calculations contemplated by this Section 59.

Excise Tax. In the event that any benefits payable to Executive pursuant to the Transition Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s Termination Benefits hereunder shall be either (a) provided to Executive in full, or (b) th provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determined. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”). In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. The Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 5.

Excise Tax. In the event that any benefits payable to Executive pursuant to the Transition Section 6 of this Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 6(e), would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s Termination Benefits hereunder shall be either (aA) provided to Executive in full, or (bB) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local local, and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determinedTax. Unless the Company Heska and Executive otherwise agree in writing, any determination required under this Section 5 6(e) shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”)Heska’s independent accountants. In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company Heska of which benefits he Executive chooses to reduce within ten (10) 10 days after written notice of the Accountantsaccountants’ determination, and Executive has not disputed the Accountantsaccountants’ determination, then the Company Heska shall select the benefits to be reduced. For purposes of making the calculations required by this Section 56(e), the Accountants accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, Code and other applicable legal authority. The Company Heska and Executive shall furnish to the Accountants accountants such information and documents as the Accountants accountants may reasonably request in order to make a determination under this Section 56(e). The Company Heska shall bear all costs the cost of all fees the Accountants charge accountants may reasonably incur in connection with any calculations contemplated by this Section 56(e).

Excise Tax. In the event that any the severance and other benefits ----------- provided for in this Agreement or otherwise payable to Executive pursuant to the Transition Agreement (“Termination Benefits”) you (i) would constitute “parachute payments” Aparachute payments@ within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, ACode@) and (ii) but for this Section 5 Section, would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s Termination Benefits hereunder such severance and other benefits shall be either (ai) provided to Executive delivered in full, or (bii) provided to Executive delivered as to such lesser extent which would result in no portion of such severance and other benefits being subject to excise tax under section 4999 of the Excise TaxCode, whichever of the foregoing amounts, when taking into account the applicable federal, state, state and local income taxes and foreign income and employment taxes, the Excise Tax, and any other applicable taxesexcise tax imposed by Section 4999, results in the receipt by Executive, you on an after-tax basis, of the greatest greater amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess Section 4999 of the amount so determinedCode. Unless you and the Company and Executive agree otherwise agree in writing, any determination required under this Section 5 shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company Company=s independent public accountants (the “Accountants”AAccountants@). In the event of a reduction of benefits hereunder, Executive Such determination shall be given the choice of which benefits to reduce. If Executive does not provide written identification to conclusive and binding upon you and the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reducedfor all purposes. For purposes of making the calculations required by this Section 5Section, the 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, . You and other applicable legal authority. The the Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. If a determination is made by the Accountants that a reduction in the aggregate of all payments due to you upon a Change of Control is required by this Section 511, you shall have the right to specify the portion of such reduction, if any, that will be made under this Agreement and each plan or program of the Company. If you do not so specify within 60 days following the date of a determination by the Accountants pursuant to the preceding sentence, the Company shall determine, in its sole discretion, the portion of such reduction, if any, to be made under this Agreement and each plan or program of the Company. The Company shall bear the cost of all fees costs the Accountants charge may reasonably incur in connection with any calculations contemplated by this Section 5Section.

Excise Tax. In the event that any benefits payable to Executive pursuant to the Transition Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s Termination Benefits hereunder shall be either (a) provided to Executive in full, or (b) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determined. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”). In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. The Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 5. 6.

Excise Tax. In the event that any benefits payable to Executive pursuant to the Transition Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s Termination Benefits hereunder shall be either (a) provided to Executive in full, or (b) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determined. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”). In the event of a reduction of benefits hereunder, Executive benefits shall be given reduced in the choice of order which benefits results in the greatest economic benefit to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reducedExecutive. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. The Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 5.

Excise Tax. In (a) Anything in this Agreement to the contrary notwithstanding, in the event that any benefits payable to Executive pursuant Xxxxx Xxxxxx and Company LLC or such other accounting firm as shall be designated by the Company prior to the Transition Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning effective time of Section 280G a Change of the Internal Revenue Code of 1986, as amended Control (the “CodeAccounting Firm”)) shall determine that receipt of all payments, benefits or any comparable successor provisionsdistributions by the Company or its affiliates in the nature of compensation to or for the Executive’s benefit, and whether paid or payable pursuant to this Agreement or otherwise (iia “Payment”) but for this Section 5 would be subject the Executive to the excise tax imposed by under Section 4999 of the Code, the Accounting Firm shall determine whether to reduce any of the Payments paid or any comparable successor provisions payable pursuant to this Agreement that are taxable in the year in which the change in ownership or control occurs (the “Excise TaxAgreement Payments”) to the Reduced Amount (as defined below). The Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that the Executive would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the Executive’s Agreement Payments were reduced to the Reduced Amount. If such a determination is not made by the Accounting Firm, the Executive shall receive all Agreement Payments to which the Executive is entitled under this Agreement. (b) If the Accounting Firm determines that aggregate Agreement Payments should be reduced to the Reduced Amount, the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation thereof, and the Executive may then elect, in the Executive’s sole discretion, which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the present value (determined for all purposes of section 16 of this Agreement in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of Code) of the aggregate Agreement Payments equals the Reduced Amount), and shall advise the Company in writing of the Executive’s election within ten days of the Executive’s receipt of notice. If no such election is made by the Executive within such ten-day period, the Company may elect which of such Agreement Payments shall be eliminated or reduced (as long as after such election the present value of the aggregate Agreement Payments equals the Reduced Amount) and shall notify the Executive promptly of such election. All determinations made by the Accounting Firm under this section 11 shall be binding upon the Company and the Executive in the absence of manifest error and shall be made within 60 days of the effective time of the Change of Control. As promptly as practicable following such determination, the Company shall pay to or distribute for the Executive’s benefit such Agreement Payments as are then due to the Executive under this Agreement and shall promptly pay to or distribute for the Executive’s benefit in the future such Agreement Payments as become due to the Executive under this Agreement. All fees and expenses of the Accounting Firm shall be borne solely by the Company. (c) As a result of the uncertainty in the application of Sections 280G and 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by the Company to or for the benefit of the Executive pursuant to this Agreement which should not have been so paid or distributed (“Overpayment”) or that additional amounts which will have not been paid or distributed by the Company to or for the benefit of the Executive pursuant to this Agreement could have been so paid or distributed (“Underpayment”), then Executive’s Termination Benefits hereunder shall be either (a) provided to Executive in fulleach case, or (b) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to consistent with the Excise Tax, whichever calculation of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determined. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”)Reduced Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a reduction deficiency by the Internal Revenue Service against either the Company or the Executive which the Accounting Firm believes has a high probability of benefits hereundersuccess determines that an Overpayment has been made, the Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification pay any such Overpayment to the Company of which benefits he chooses to reduce within ten (10together with interest at the applicable federal rate provided for in section 7872(f)(2) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code; provided, and other applicable legal authority. The Company and however, that no amount shall be payable by the Executive shall furnish to the Accountants Company if and to the extent such information payment would not either reduce the amount on which the Executive is subject to tax under section 1 and documents as section 4999 of the Accountants may reasonably request Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive together with interest at the applicable federal rate provided for in order to make a determination under this Section 5. The Company shall bear 7872(f)(2) of the cost of all fees Code. (d) For purposes hereof, the Accountants charge in connection with any calculations contemplated by this Section 5.following terms have the meanings set forth below:

Excise Tax. In the event that any benefits payable to Executive pursuant to the Transition Agreement (“"Termination Benefits”") (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any comparable successor provisions, and (ii) but for this Section 5 4.7 would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “"Excise Tax”"), then Executive’s 's Termination Benefits hereunder shall be either (a) provided to Executive in full, or (b) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determinedTax. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 4.7 shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “"Accountants”"). In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ ' determination, and Executive has not disputed the Accountants’ ' determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 54.7, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 54.7. The Company shall bear the cost of all fees costs the Accountants charge may reasonably incur in connection with any calculations contemplated by this Section 54.7.

Excise Tax. (i) In the event that any payments or benefits payable provided or to Executive be provided by Company or Bank or their respective Affiliates to Employee or for Employee’s benefit pursuant to the Transition terms of this Agreement or otherwise (“Termination BenefitsCovered Payments”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisionsprovision thereto) and would, and (ii) but for this Section 5 would 24(b), be subject to the excise tax imposed by Section 4999 of the Code, Code (or any comparable successor provisions provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then Executive’s Termination Benefits hereunder the Covered Payments shall be either reduced (abut not below zero) provided to Executive in full, or (b) provided the minimum extent necessary to Executive as to such lesser extent which would result in ensure that no portion of such benefits being the Covered Payments is subject to the Excise Tax. (ii) The Covered Payments shall be reduced in a manner that maximizes Employee’s economic position. In applying this principle, whichever the reduction shall be made in a manner consistent with the requirements of Section 409A of the foregoing amountsCode, when taking into account applicable federaland where two economically equivalent amounts are subject to reduction but payable at different times, statesuch amounts shall be reduced on a pro rata basis but not below zero. (iii) If, local notwithstanding any reductions described in this Section 24(b), the IRS determines that any Covered Payment constitutes an excess parachute payment (as defined by Section 280G(b) of the Code), then this Section 24(b) shall be reapplied based on the IRS’ determination and foreign income and employment taxesEmployee shall be obligated to pay back to Employer, within 30 days after a final IRS determination or, in the event that Employee challenges the final IRS determination, a final judicial determination, the portion of the Covered Payment required to avoid imposition of the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determined. Unless the Company and Executive otherwise agree in writing, any . (iv) Any determination required under this Section 5 24(b), including whether any payments or benefits are parachute payments, shall be made by Employer in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”)its sole discretion. In the event of a reduction of benefits hereunder, Executive Employee shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants Employer with such information and documents as the Accountants Employer may reasonably request in order to make a determination under this Section 524(b). The Company Employer’s determinations shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 5be final and binding on Employer and Employee.

Excise Tax. (i) In the event that any payments or benefits payable provided or to be provided by Company or Bank or their respective Affiliates to Executive or for Executive’s benefit pursuant to the Transition terms of this Agreement or otherwise (“Termination BenefitsCovered Payments”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisionsprovision thereto) and would, and (ii) but for this Section 5 would 24(b), be subject to the excise tax imposed by Section 4999 of the Code, Code (or any comparable successor provisions provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then Executive’s Termination Benefits hereunder the Covered Payments shall be either reduced (abut not below zero) provided to Executive in full, or (b) provided the minimum extent necessary to Executive as to such lesser extent which would result in ensure that no portion of such benefits being the Covered Payments is subject to the Excise Tax. (ii) The Covered Payments shall be reduced in a manner that maximizes Executive’s economic position. In applying this principle, whichever the reduction shall be made in a manner consistent with the requirements of Section 409A of the foregoing amountsCode, when taking into account applicable federaland where two economically equivalent amounts are subject to reduction but payable at different times, statesuch amounts shall be reduced on a pro rata basis but not below zero. (iii) If, local notwithstanding any reductions described in this Section 24(b), the IRS determines that any Covered Payment constitutes an excess parachute payment (as defined by Section 280G(b) of the Code), then this Section 24(b) shall be reapplied based on the IRS’ determination and foreign income and employment taxesExecutive shall be obligated to pay back to Company, within 30 days after a final IRS determination or, in the event that Executive challenges the final IRS determination, a final judicial determination, the portion of the Covered Payment required to avoid imposition of the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determined. Unless the Company and Executive otherwise agree in writing, any . (iv) Any determination required under this Section 5 24(b), including whether any payments or benefits are parachute payments, shall be made by Company in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”)its sole discretion. In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants with such information and documents as the Accountants Company may reasonably request in order to make a determination under this Section 524(b). The Company’s determinations shall be final and binding on Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 5and Executive.

Excise Tax. In the event that any the benefits payable to Executive pursuant to the Transition provided for in this Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, ) and (ii) but for this Section 5 would will be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions Code (the “Excise Tax”), then Executive’s Termination Benefits hereunder shall severance benefits payable under the terms of this Agreement will be either (a) provided to Executive delivered in full, or (b) provided to Executive delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account the applicable federal, state, state and local income taxes and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess Section 4999 of the amount so determinedCode. Unless Executive and the Company and Executive agree otherwise agree in writing, any the determination of Executive’s Excise Tax liability, if any, and the amount, if any, required to be paid under this Section 5 shall 10 will be made in writing in good faith by a nationally recognized accounting firm selected the independent auditors who are primarily used by the Company immediately prior to the Change of Control (the “Accountants”). In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 510, the 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, . Executive and other applicable legal authority. The the Company and Executive shall agree to furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 510. The Company shall will bear the cost of all fees costs the Accountants charge may incur in connection with any calculations contemplated by this Section 510.

Excise Tax. In the event that any benefits payable to Executive pursuant to the Transition Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s Termination Benefits hereunder shall be either (a) provided to Executive in full, or (b) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determinedTax. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”). In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. The Company shall bear the cost of all fees costs the Accountants charge may reasonably incur in connection with any calculations contemplated by this Section 5. If, notwithstanding any reduction described in this Section 5, the IRS determines that Executive is liable for the Excise Tax as a result of the receipt of any Termination Benefits, then Executive shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that Executive challenges the final IRS determination, a final judicial determination, a portion of the Termination Benefits equal to the “Repayment Amount.” The Repayment Amount shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net after-tax proceeds with respect to the Termination Benefits (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on such benefits) shall be maximized. The Repayment Amount shall be zero if a Repayment Amount of more than zero would not result in Executive’s net after-tax proceeds with respect to the Termination Benefits being maximized. If the Excise Tax is not eliminated pursuant to this paragraph, Executive shall pay the Excise Tax. Notwithstanding any other provision of this Section 5, if (1) there is a reduction in the payment of the Termination Benefits as described in this Section 5, (2) the IRS later determines that Executive is liable for the Excise Tax, the payment of which would result in the maximization of Executive’s net after-tax proceeds (calculated as if Executive’s benefits had not previously been reduced), and (3) Executive pays the Excise Tax, then the Company shall pay to Executive those Termination Benefits which were reduced pursuant to this subsection as soon as administratively possible after Executive pays the Excise Tax so that Executive’s net after-tax proceeds with respect to the payment of the Termination Benefits are maximized.

Excise Tax. In the event that any benefits payable to Executive pursuant to the Transition Section 6 of this Agreement (“"Termination Benefits”") (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 6(d), would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “"Excise Tax”"), then Executive’s 's Termination Benefits hereunder shall be either (aA) provided to Executive in full, or (bB) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local local, and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determinedTax. Unless the Company Heska and Executive otherwise agree in writing, any determination required under this Section 5 6(d) shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”)Heska's independent accountants. In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company Heska of which benefits he Executive chooses to reduce within ten (10) days after written notice of the Accountants’ accountants' determination, and Executive has not disputed the Accountants’ accountants' determination, then the Company Heska shall select the benefits to be reduced. For purposes of making the calculations required by this Section 56(d), the Accountants accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, Code and other applicable legal authority. The Company Heska and Executive shall furnish to the Accountants accountants such information and documents as the Accountants accountants may reasonably request in order to make a determination under this Section 56(d). The Company Heska shall bear all costs the cost of all fees the Accountants charge accountants may reasonably incur in connection with any calculations contemplated by this Section 56(d).

Excise Tax. In the event that any benefits payable to Executive pursuant to the Transition Agreement or this Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s Termination Benefits hereunder shall be either (a) provided to Executive in full, or (b) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under subject to the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determinedTax. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 5 shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”). In the event of a reduction of benefits hereunder, Executive Executive’s Termination Benefits shall be given reduced in the choice of which benefits order specified in the letter agreement attached to reduce. If Executive does not provide written identification to the Company of which benefits he chooses to reduce within ten (10) days after written notice of the Accountants’ determination, and Executive has not disputed the Accountants’ determination, then the Company shall select the benefits to be reduced. this Agreement as Exhibit D. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. 5 The Company shall bear the cost of all fees costs the Accountants charge may reasonably incur in connection with any calculations contemplated by this Section 5. If, notwithstanding any reduction described in this Section 5, the Internal Revenue Service (the “IRS”) determines that Executive is liable for the Excise Tax as a result of the receipt of any Termination Benefits, then Executive shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that Executive challenges the final IRS determination, a final judicial determination, a portion of the Termination Benefits equal to the “Repayment Amount.” The Repayment Amount with respect to the Termination Benefits shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Executive’s net after-tax proceeds with respect to the Termination Benefits (after taking into account the payment of the Excise Tax and all other applicable taxes imposed on such payment) shall be maximized. The Repayment Amount with respect to the payment of benefits shall be zero if a Repayment Amount of more than zero would not result in Executive’s net after-tax proceeds with respect to the payment of such benefits being maximized. If the Excise Tax is not eliminated pursuant to this paragraph, Executive shall pay the Excise Tax and shall not be obligated to surrender any Termination Benefits. Notwithstanding any other provision of this Section 5, if (1) there is a reduction in the payment of Termination Benefits as described in this Section 5, (2) the IRS later determines that Executive is liable for the Excise Tax, the payment of which would result in the maximization of Executive’s net after-tax proceeds (calculated as if Executive’s Termination Benefits had not previously been reduced), and (3) Executive pays the Excise Tax, then the Company shall pay to Executive those Termination Benefits which were reduced pursuant to this Section 5 in the reverse order of the reduction set forth in Exhibit D as soon as administratively possible after Executive pays the Excise Tax so that Executive’s net after-tax proceeds with respect to the payment of Termination Benefits are maximized.

Excise Tax. In the event that any benefits payable to Executive pursuant to the Transition Section 6 of this Agreement (“Termination Benefits”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 6(d), would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “Excise Tax”), then Executive’s Termination Benefits hereunder shall be either (aA) provided to Executive in full, or (bB) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local local, and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determinedTax. Unless the Company Heska and Executive otherwise agree in writing, any determination required under this Section 5 6(d) shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”)Xxxxx’s independent accountants. In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company Heska of which benefits he Executive chooses to reduce within ten (10) days after written notice of the Accountantsaccountants’ determination, and Executive has not disputed the Accountantsaccountants’ determination, then the Company Heska shall select the benefits to be reduced. For purposes of making the calculations required by this Section 56(d), the Accountants accountants may make reasonable assumptions and approximations concerning the applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, Code and other applicable legal authority. The Company Xxxxx and Executive shall furnish to the Accountants accountants such information and documents as the Accountants accountants may reasonably request in order to make a determination under this Section 56(d). The Company Heska shall bear all costs the cost of all fees the Accountants charge accountants may reasonably incur in connection with any calculations contemplated by this Section 56(d).

Excise Tax. In the event that any benefits payable to Executive pursuant to the Transition Section 6 of this Agreement (“"Termination Benefits”") (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any comparable successor provisions, and (ii) but for this Section 5 6(d), would be subject to the excise tax imposed by Section 4999 of the Code, or any comparable successor provisions (the “"Excise Tax”"), then Executive’s 's Termination Benefits hereunder shall be either (aA) provided to Executive in full, or (bB) provided to Executive as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable federal, state, local local, and foreign income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax and Executive shall have no right to Termination Benefits in excess of the amount so determinedTax. Unless the Company Heska and Executive otherwise agree in writing, any determination required under this Section 5 6(d) shall be made in writing in good faith by a nationally recognized accounting firm selected by the Company (the “Accountants”)Heska's independent accountants. In the event of a reduction of benefits hereunder, Executive shall be given the choice of which benefits to reduce. If Executive does not provide written identification to the Company Heska of which benefits he Executive chooses to reduce within ten (10) days after written notice of the Accountants’ accountants' determination, and Executive has not disputed the Accountants’ accountants' determination, then the Company Heska shall select the benefits to be reduced. For purposes of making the calculations required by this Section 56(d), the Accountants accountants may make reasonable assumptions and approximations concerning the applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, Code and other applicable legal authority. The Company Heska and Executive shall furnish to the Accountants accountants such information and documents as the Accountants accountants may reasonably request in order to make a determination under this Section 56(d). The Company Heska shall bear all costs the cost of all fees the Accountants charge accountants may reasonably incur in connection with any calculations contemplated by this Section 56(d).