Common use of Investment by Employee Clause in Contracts

Investment by Employee. Within 60 days following March 31, 2013, the Profit Sharing Payment due with respect to the Old Sargon Portfolio (which shall, except as set forth on Schedule I attached hereto, be calculated as of 11:59 p.m. on March 31, 2013 in the same manner that was contemplated under Section 5 of the Prior Agreement, which is reproduced for convenience on Schedule III attached hereto) (the “First Profit Sharing Payment”) (net of amounts necessary to satisfy all applicable federal, state and city income taxes of Employee payable thereon) will be paid to the Employee and deposited into an escrow account in the name of the Employee (the “Escrow Account”). The funds in the Escrow Account (i) will be administered in accordance with an escrow agreement substantially in the form attached hereto as Exhibit 1, among the Employee, the Employer and an escrow agent reasonably acceptable to both of them, (ii) will be invested only in U.S. Treasury money market funds (the “Approved Funds”), (iii) will, except as provided in Section 8(c) below, earn a hypothetical return (which the Employee acknowledges and agrees may be positive or negative) as if such funds were invested by the Employee in Sargon on the date of deposit into the Escrow Account – i.e., such hypothetical return will be equal to the actual net rate of return earned by the Employer from Sargon, taking into account the Hurdle and the payment of the Second Profit Sharing Payment,2 during such period (the “Hypothetical Return”) (the Hypothetical Return will not include any interest or other income relating to the Approved Funds (“Income”)), (iv) will, except as provided in Section 8(c) below, be released (in an amount equal to the original amount deposited, plus or minus the amount of the Hypothetical Return, but excluding any Income (such amount, the “Escrowed Amount”)) to the Employee at the time that the Second Profit Sharing Payment (as defined in Section 5 below) becomes due under this Agreement (or, if this Agreement is terminated without any Second Profit Sharing Payment becoming due, at the time of such termination), (v) may not be withdrawn by the Employee, in whole or in part, during the Term, and (vi) may not be pledged, directly or indirectly, by the Employee or the Employer as collateral for any loan. For the avoidance of doubt: (a) any Income shall be the property of the Employer; (b) the Employer shall be responsible for all applicable taxes relating to any Income; (c) any Income may be withdrawn by the Employer at any time or from time to time, in its sole and absolute discretion; (d) from and after 12:00 a.m. on April 1, 2013, the First Profit Sharing Payment shall be the property of the Employee (subject to the restrictions set forth in the Escrow Agreement), whether or not such funds have yet to be deposited into the Escrow Account (such that, for example, if the Employee’s employment hereunder were to be terminated without Cause prior to such deposit, the Employee would still be entitled to receive the First Profit Sharing Payment); and (e) notwithstanding the definition of “Escrowed Amount” set forth in Section 4(b)(i)(iv) above, if the Employee’s employment hereunder is terminated without Cause prior to 11:59 p.m. on March 31, 2013, the term “Escrowed Amount” shall mean the Profit Sharing Payment due with respect to the Old Sargon Portfolio (which shall be calculated as of the time of such termination in the same manner that was contemplated under Section 5 of the Prior Agreement), without taking into account any Hypothetical Return (which amount shall not be deposited into the Escrow Account but rather delivered to the Employee in the same manner that was contemplated under Section 5 of the Prior Agreement). 2 The parties agree that the following illustrative examples shall govern the calculation of the Hypothetical Return (assuming a 1-year Term for simplicity): (i) If the New Sargon Portfolio achieves a 10% gross return on $3 billion of capital for $300 million of profit, the Hurdle would be $120 million and the Second Profit Sharing Payment due to the Co-Managers collectively from the Employer and High River would be 15% of $180 million, or $27 million – so the Hypothetical Return that would be applied to the escrowed funds would be: ($300 million - $120 million - $27 million = $153 million) / $3 billion = 5.1% (i.e., if the escrowed funds were $5 million, such amount would be increased by $255,000); (ii) if Sargon achieves a 4% gross return, no Second Profit Sharing Payment would be due and the Hypothetical Return would be flat (i.e., the $5 million of escrowed funds would not be increased or decreased); (iii) if Sargon achieves a 0% gross return, no Second Profit Sharing Payment would be due and the Hypothetical Return would be negative 4.0% (i.e., the $5 million of escrowed funds would be reduced by $200,000 to $4.8 million); and (iv) if Sargon achieves a 10% loss, no Second Profit Sharing Payment would be due and the Hypothetical Return would be negative 14.0% (i.e., the $5 million of escrowed funds would be reduced by $700,000 to $4.3 million).

Investment by Employee. Within 60 days following March 31, 2013, the Profit Sharing Payment due with respect to the Old Sargon Portfolio (which shall, except as set forth on Schedule I attached hereto, be calculated as of 11:59 p.m. on March 31, 2013 in the same manner that was contemplated under Section 5 of the Prior Agreement, which is reproduced for convenience on Schedule III attached hereto) (the “First Profit Sharing Payment”) (net of amounts necessary to satisfy all applicable federal, state and city income taxes of Employee payable thereon) will be paid to the Employee and deposited into an escrow account in the name of the Employee (the “Escrow Account”). The funds in the Escrow Account (i) will be administered in accordance with an escrow agreement substantially in the form attached hereto as Exhibit 11 , among the Employee, the Employer and an escrow agent reasonably acceptable to both of them, (ii) will be invested only in U.S. Treasury money market funds (the “Approved Funds”), (iii) will, except as provided in Section 8(c) below, earn a hypothetical return (which the Employee acknowledges and agrees may be positive or negative) as if such funds were invested by the Employee in Sargon on the date of deposit into the Escrow Account – - i.e., such hypothetical return will be equal to the actual net rate of return earned by the Employer from Sargon, taking into account the Hurdle and the payment of the Second Profit Sharing Payment,2 Payment, 2 during such period (the “Hypothetical Return”) (the Hypothetical Return will not include any interest or other income relating to the Approved Funds (“Income”)), (iv) will, except as provided in Section 8(c) below, be released (in an amount equal to the original amount deposited, plus or minus the amount of the Hypothetical Return, but excluding any Income (such amount, the “Escrowed Amount”)) to the Employee at the time that the Second Profit Sharing Payment (as defined in Section 5 below) becomes due under this Agreement (or, if this Agreement is terminated without any Second Profit Sharing Payment becoming due, at the time of such termination), (v) may not be withdrawn by the Employee, in whole or in part, during the Term, and (vi) may not be pledged, directly or indirectly, by the Employee or the Employer as collateral for any loan. For the avoidance of doubt: (a) any Income shall be the property of the Employer; (b) the Employer shall be responsible for all applicable taxes relating to any Income; (c) any Income may be withdrawn by the Employer at any time or from time to time, in its sole and absolute discretion; (d) from and after 12:00 a.m. on April 1, 2013, the First Profit Sharing Payment shall be the property of the Employee (subject to the restrictions set forth in the Escrow Agreement), whether or not such funds have yet to be deposited into the Escrow Account (such that, for example, if the Employee’s 's employment hereunder were to be terminated without Cause prior to such deposit, the Employee would still be entitled to receive the First Profit Sharing Payment); and (e) notwithstanding the definition of “Escrowed Amount” set forth in Section 4(b)(i)(iv) above, if the Employee’s 's employment hereunder is terminated without Cause prior to 11:59 p.m. on March 31, 2013, the term “Escrowed Amount” shall mean the Profit Sharing Payment due with respect to the Old Sargon Portfolio (which shall be calculated as of the time of such termination in the same manner that was contemplated under Section 5 of the Prior Agreement), without taking into account any Hypothetical Return (which amount shall not be deposited into the Escrow Account but rather delivered to the Employee in the same manner that was contemplated under Section 5 of the Prior Agreement). 2 The parties agree that the following illustrative examples shall govern the calculation of the Hypothetical Return (assuming a 1-year Term for simplicity): (i) If the New Sargon Portfolio achieves a 10% gross return on $3 billion of capital for $300 million of profit, the Hurdle would be $120 million and the Second Profit Sharing Payment due to the Co-Managers collectively from the Employer and High River would be 15% of $180 million, or $27 million – - so the Hypothetical Return that would be applied to the escrowed funds would be: ($300 million - $120 million - $27 million = $153 million) / $3 billion = 5.1% (i.e., if the escrowed funds were $5 million, such amount would be increased by $255,000); (ii) if Sargon achieves a 4% gross return, no Second Profit Sharing Payment would be due and the Hypothetical Return would be flat (i.e., the $5 million of escrowed funds would not be increased or decreased); (iii) if Sargon achieves a 0% gross return, no Second Profit Sharing Payment would be due and the Hypothetical Return would be negative 4.0% (i.e., the $5 million of escrowed funds would be reduced by $200,000 to $4.8 million); and (iv) if Sargon achieves a 10% loss, no Second Profit Sharing Payment would be due and the Hypothetical Return would be negative 14.0% (i.e., the $5 million of escrowed funds would be reduced by $700,000 to $4.3 million).