Common use of Other Tax Matters Clause in Contracts

Other Tax Matters. (a) The Company will withhold all applicable federal, state, and local taxes, FICA (Social Security and Medicare), and workers’ compensation contributions and other amounts as may be required by law with respect to compensation payable to Executive or Executive’s spouse pursuant to this Agreement. In the event Executive’s spouse receives the Group Health Coverage pursuant to Section 3(c), the Company will withhold FICA (Social Security and Medicare) in the year of Executive’s death or presumed death, issue a Form W-2, and report the net amount of Company contributions on a Form 1099-MISC. The Company will continue to report the full amount of Company contributions that it provides for Executive’s spouse in each successive calendar year on a Form 1099-MISC. (b) Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and applied so that the payment of the benefits set forth herein will either be exempt from, or in the alternative, comply with, the requirements of Code Section 409A. A termination of employment will not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment that are considered “nonqualified deferred compensation” under Section 409A unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “Termination Date” or like terms will mean “separation from service.” Notwithstanding any provision of this Agreement to the contrary, if Executive is a “specified employee” within the meaning of Section 409A on the date of his “separation from service,” any payments or arrangements due upon a termination of Executive’s employment under any arrangement that constitutes a “nonqualified deferral of compensation” within the meaning of Section 409A and which do not otherwise qualify under the exemptions under Treas. Regs. Section 1.409A-1 (including without limitation, the short-term deferral exemption or the permitted payments under Treas. Regs. Section 1.409A-1(b)(9)(iii)(A)), will be delayed and paid or provided on the earlier of (i) the date which is six months after Executive’s “separation from service” for any reason other than death or presumed death, or (ii) the date of Executive’s death or presumed death. (c) After his Termination Date, Executive will have no duties or responsibilities that are inconsistent with having a “separation from service” within the meaning of Section 409A as of the Termination Date and, notwithstanding anything in the Agreement to the contrary, distributions upon termination of employment of nonqualified deferred compensation may only be made upon a “separation from service” as determined under Section 409A and such date will be the Termination Date for purposes of this Agreement. Each payment under this Agreement or otherwise will be treated as a separate payment for purposes of Section 409A. In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement which constitutes a “nonqualified deferral of compensation” within the meaning of Section 409A and to the extent an amount is payable within a time period, the time during which such amount is paid will be in the discretion of the Company. (d) All reimbursements and in-kind benefits provided under this Agreement will be made or provided in accordance with the requirements of Section 409A. To the extent that any reimbursements are taxable to Executive, such reimbursements will be paid to Executive on or before the last day of Executive’s taxable year following the taxable year in which the related expense was incurred. Reimbursements will not be subject to liquidation or exchange for another benefit and the amount of such reimbursements that Executive receives in one taxable year will not affect the amount of such reimbursements that Executive receives in any other taxable year. (e) This Section 5(e) shall be construed in accordance with Code Sections 280G and 4999, or any successor provisions thereto, and the guidance issued thereunder (collectively, “Section 280G”), and the terms “parachute payment” and “excess parachute payment” as used herein have the meanings ascribed to them under Section 280G. (i) If it shall be determined that the aggregate payments and benefits constituting parachute payments which, but for the operation of this provision, would become payable or distributable by the Company to or for the benefit of Executive, pursuant to this Agreement, any other agreement, or any benefit plan (collectively, the “Total Payments”), would result in any excess parachute payments becoming subject to the excise tax imposed by Code Section 4999, or any successor provision thereto, or any interest or penalties with respect to such excise tax (such excise tax, together with such interest and penalties, collectively, the “Excise Tax”), then the Total Payments shall be reduced to an amount equal to one dollar less than the amount which would cause the parachute payments to be subject to the Excise Tax; provided that the reduction contemplated by this Section 5(e) shall be applied only if the net after-tax benefit to Executive after such reduction would be greater than the net after-tax benefit to Executive without such reduction (notwithstanding the application of any Excise Tax on the unreduced Total Payments). For the avoidance of doubt, Executive shall be responsible for the payment of any Excise Tax arising from the Total Payments. (ii) The Company will reduce or eliminate the Total Payments by first reducing or eliminating any cash parachute payments that do not constitute deferred compensation within the meaning of Section 409A, then by reducing or eliminating any other parachute payments that do not constitute deferred compensation within the meaning of Section 409A, then by reducing or eliminating all other parachute payments that do constitute deferred compensation within the meaning of Section 409A, beginning with those payments last to be paid, subject to and in accordance with all applicable requirements of Section 409A. (iii) Unless the Company and Executive otherwise agree in writing, all calculations and determinations necessary to effectuate this provision, including without limitation determinations as to whether a reduction in payments or benefits is required and the amount thereof, whether any item of compensation constitutes a parachute payment, the amount, if any, subject to the Excise Tax (including determinations as to whether any portion of the excess parachute payments constitutes reasonable compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B)), and the present value of any parachute payment, shall be made, consistent with Section 280G, by Xxxxx & Xxxxx LLP (the “Advisors”). For this purpose, the Advisors may make reasonable assumptions and approximations; may rely on reasonable, good faith interpretations concerning the application of Section 280G; and may rely upon such other tax, legal, valuation or other specialists as they deem appropriate. Executive’s applicable federal, state, and local income taxes shall be computed at the highest applicable marginal rate, net of the maximum reduction, if any, in federal income taxes which could be obtained from a deduction of such state and local taxes. The Company and Executive agree to furnish the Advisors with such information and documents as the Advisors reasonably request to make such calculations and determinations as soon as practicable upon such request. The Company shall direct the Advisors to provide Executive with a written statement of its conclusions, setting forth the basis therefor, including detailed supporting calculations and copies of any written opinions or advice upon which such conclusions rely (the “Report”), within ten business days after their receipt of all required information and documents. Executive shall have five business days thereafter to notify the Advisors and the Company in writing of any reasonable and substantive objections to the Report. The Company shall direct the Advisors to promptly consider in good faith and respond to such objections and provide Executive a revised Report reflecting appropriate adjustments (unless the Advisors determine that no adjustments are necessary). The Advisors’ final calculations and determinations (as adjusted, if applicable) shall be conclusive and binding on all parties for all purposes. The Company shall bear all costs the Advisors may reasonably incur in connection with the process contemplated by this Section 5(e).

Other Tax Matters. (a) The Company will withhold all applicable federal, state, and local taxes, FICA (Social Security and Medicare), and workers’ compensation contributions and other amounts as may be required by law with respect to compensation payable to the Executive or the Executive’s spouse pursuant to this Agreement. In the event the Executive’s spouse receives the Group Health Coverage pursuant to Section 3(c3(d), the Company will withhold FICA (Social Security and Medicare) in the year of the Executive’s death or presumed death, issue a Form W-2, and report the net amount of Company contributions on a Form 1099-MISC. The Company will continue to report the full amount of Company contributions that it provides for the Executive’s spouse in each successive calendar year on a Form 1099-MISC. (b) Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and applied so that the payment of the benefits set forth herein will either be exempt from, or in the alternative, comply with, the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the published guidance thereunder (“Section 409A. 409A”). A termination of employment will not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment that are considered “nonqualified deferred compensation” under Section 409A unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “Termination Date” or like terms will mean “separation from service.” Notwithstanding any provision of this Agreement to the contrary, if the Executive is a “specified employee” within the meaning of Section 409A on the date of his “separation from service,” any payments or arrangements due upon a termination of the Executive’s employment under any arrangement that constitutes a “nonqualified deferral of compensation” within the meaning of Section 409A and which do not otherwise qualify under the exemptions under Treas. Regs. Section 1.409A-1 (including without limitation, the short-term deferral exemption or the permitted payments under Treas. Regs. Section 1.409A-1(b)(9)(iii)(A)), will be delayed and paid or provided on the earlier of (i) the date which is six months after the Executive’s “separation from service” for any reason other than death or presumed death, or (ii) the date of the Executive’s death or presumed death. (c) After his Termination Date, the Executive will have no duties or responsibilities that are inconsistent with having a “separation from service” within the meaning of Section 409A as of the Termination Date and, notwithstanding anything in the Agreement to the contrary, distributions upon termination of employment of nonqualified deferred compensation may only be made upon a “separation from service” as determined under Section 409A and such date will be the Termination Date for purposes of this Agreement. Each payment under this Agreement or otherwise will be treated as a separate payment for purposes of Section 409A. In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement which constitutes a “nonqualified deferral of compensation” within the meaning of Section 409A and to the extent an amount is payable within a time period, the time during which such amount is paid will be in the discretion of the Company. (d) All reimbursements and in-kind benefits provided under this Agreement will be made or provided in accordance with the requirements of Section 409A. To the extent that any reimbursements are taxable to the Executive, such reimbursements will be paid to the Executive on or before the last day of the Executive’s taxable year following the taxable year in which the related expense was incurred. Reimbursements will not be subject to liquidation or exchange for another benefit and the amount of such reimbursements that the Executive receives in one taxable year will not affect the amount of such reimbursements that the Executive receives in any other taxable year. (e) This Section 5(e) shall be construed in accordance with Code Sections 280G and 4999If any payment, benefit, or distribution of any successor provisions thereto, and the guidance issued thereunder (collectively, “Section 280G”), and the terms “parachute payment” and “excess parachute payment” as used herein have the meanings ascribed to them under Section 280G. (i) If it shall be determined that the aggregate payments and benefits constituting parachute payments which, but for the operation of this provision, would become payable or distributable by the Company type to or for the benefit of the Executive, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement, any other agreement, Agreement or any benefit plan otherwise (collectively, the “Total Parachute Payments”), ) would result in any excess parachute payments becoming (as determined by the Company) subject the Executive to the excise tax imposed by under Section 4999 of the Code Section 4999, or any successor provision thereto, or any interest or penalties with respect to such excise tax (such excise tax, together with such interest and penalties, collectively, the “Excise Tax”), then the Total Parachute Payments shall will be reduced to an so that the maximum amount equal to of the Parachute Payments (after reduction) will be one dollar less than the amount which would cause the parachute payments Parachute Payments to be subject to the Excise Tax; provided that the reduction contemplated by this Section 5(e) shall be applied only if the net after-tax benefit to Executive after such reduction would be greater than the net after-tax benefit to Executive without such reduction (notwithstanding the application of any Excise Tax on the unreduced Total Payments). For the avoidance of doubt, Executive shall be responsible for the payment of any Excise Tax arising from the Total Payments. (ii) The Company will reduce or eliminate the Total Parachute Payments by first reducing or eliminating any cash parachute payments Parachute Payments that do not constitute deferred compensation within the meaning of Section 409A, then by reducing or eliminating any other parachute payments Parachute Payments that do not constitute deferred compensation within the meaning of Section 409A, then by reducing or eliminating all other parachute payments Parachute Payments that do constitute deferred compensation within the meaning of Section 409A, beginning with those payments last to be paid, subject to and in accordance with all applicable requirements of Section 409A. (iii) Unless the Company and Executive otherwise agree in writing, all calculations and determinations necessary to effectuate this provision, including without limitation determinations as to whether a reduction in payments or benefits is required and the amount thereof, whether any item of compensation constitutes a parachute payment, the amount, if any, subject to the Excise Tax (including determinations as to whether any portion of the excess parachute payments constitutes reasonable compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B)), and the present value of any parachute payment, shall be made, consistent with Section 280G, by Xxxxx & Xxxxx LLP (the “Advisors”). For this purpose, the Advisors may make reasonable assumptions and approximations; may rely on reasonable, good faith interpretations concerning the application of Section 280G; and may rely upon such other tax, legal, valuation or other specialists as they deem appropriate. Executive’s applicable federal, state, and local income taxes shall be computed at the highest applicable marginal rate, net of the maximum reduction, if any, in federal income taxes which could be obtained from a deduction of such state and local taxes. The Company and Executive agree to furnish the Advisors with such information and documents as the Advisors reasonably request to make such calculations and determinations as soon as practicable upon such request. The Company shall direct the Advisors to provide Executive with a written statement of its conclusions, setting forth the basis therefor, including detailed supporting calculations and copies of any written opinions or advice upon which such conclusions rely (the “Report”), within ten business days after their receipt of all required information and documents. Executive shall have five business days thereafter to notify the Advisors and the Company in writing of any reasonable and substantive objections to the Report. The Company shall direct the Advisors to promptly consider in good faith and respond to such objections and provide Executive a revised Report reflecting appropriate adjustments (unless the Advisors determine that no adjustments are necessary). The Advisors’ final calculations and determinations (as adjusted, if applicable) shall be conclusive and binding on all parties for all purposes. The Company shall bear all costs the Advisors may reasonably incur in connection with the process contemplated by this Section 5(e).

Other Tax Matters. (a) 7.1 The Company will shall withhold all applicable federal, state, state and local taxes, FICA (Social Security and Medicare), social security and workers’ compensation contributions and other amounts as may be required by law with respect to compensation payable to Executive or Executive’s spouse pursuant to this Agreement. In the event Executive’s spouse receives the Group Health Coverage pursuant to Section 3(c), the Company will withhold FICA (Social Security and Medicare) in the year of Executive’s death or presumed death, issue a Form W-2, and report the net amount of Company contributions on a Form 1099-MISC. The Company will continue to report the full amount of Company contributions that it provides for Executive’s spouse in each successive calendar year on a Form 1099-MISC. (b) 7.2 Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and applied so that the payment of the benefits set forth herein will shall either be exempt from, or in the alternative, comply with, the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the published guidance thereunder (“Section 409A. 409A”). A termination of employment will shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment that are considered “nonqualified deferred compensation” under Section 409A unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “Termination Date” or like terms will shall mean “separation from service.” Notwithstanding any provision of this Agreement to the contrary, if Executive is a “specified employee” within the meaning of Section 409A on the date of his “separation from service,” 409A, any payments or arrangements due upon a termination of Executive’s employment under any arrangement that constitutes a “nonqualified deferral of compensation” within the meaning of Section 409A and which do not otherwise qualify under the exemptions under Treas. Regs. Section 1.409A-1 (including without limitation, the short-term deferral exemption or the permitted payments under Treas. Regs. Section 1.409A-1(b)(9)(iii)(A)), will shall be delayed and paid or provided on the earlier of (ia) the date which is six months after Executive’s “separation from service” for any reason other than death or presumed death, or (iib) the date of Executive’s death death. All tax gross-up payments provided under this Agreement or presumed deathany other agreement with Executive shall be made or provided by the end of Executive’s taxable year next following Executive’s taxable year in which Executive remits the related taxes, in accordance with the requirements of Section 409A. 7.3 The Company acknowledges and agrees that if any payment, award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) made or provided to Executive or for Executive's benefit in connection with this Agreement, or Executive’s employment with the Company or the termination thereof (the “Payments”) are determined to be subject to the additional taxes, interest or penalties imposed by Section 409A, or any interest or penalties with respect to such additional taxes, interest or penalties (such additional taxes, together with any such interest and penalties, are referred to collectively as the “Section 409A Tax”), then Executive will be entitled to receive an additional payment (an “409A Gross-Up Payment”) from the Company such that the net amount Executive retains after paying any applicable Section 409A Tax and any federal, state or local income or FICA taxes on such 409A Gross-Up Payment, shall be equal to the amount the Executive would have received if the Section 409A Tax were not applicable to the Payments. Unless otherwise agreed in writing by Executive and the Company, all determinations of the Section 409A Tax and 409A Gross-Up Payment, if any, will be made an independent “big four” accounting firm designated by the Company, and such accounting firm shall be instructed to provide the Company and Executive with a written opinion of any determination such accounting firm has been requested to provide. The Company shall be responsible for such accounting firm’s fees. For purposes of determining the amount of the 409A Gross-Up Payment, if any, Executive will be deemed to pay federal income tax at the actual marginal rate of federal income taxation in the calendar year in which the total Payments are made and state and local income taxes at the actual marginal rate of taxation in the state and locality of Executive's residence on the date the total Payments are made, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes. If the Section 409A Tax is determined by the Internal Revenue Service, on audit or otherwise, to exceed the amount taken into account hereunder in calculating the 409A Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the 409A Gross-Up Payment), the Company shall make another 409A Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Executive with respect to such excess). The Company and Executive shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Section 409A Tax with respect to the total Payments. The 409A Gross-Up Payments provided to Executive shall be made no later than the tenth (10th) business day following the last date the Payments are made but in all events within the time period specified in Section 7.2 also. (c) 7.4 After his any Termination Date, Executive will shall have no duties or responsibilities that are inconsistent with having a “separation from service” within the meaning of Section 409A as of the Termination Date and, notwithstanding anything in the Agreement to the contrary, distributions upon termination of employment of nonqualified deferred compensation may only be made upon a “separation from service” as determined under Section 409A and such date will shall be the Termination Date for purposes of this Agreement. Each payment under this Agreement or otherwise will shall be treated as a separate payment for purposes of Section 409A. In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement which constitutes a “nonqualified deferral of compensation” within the meaning of Section 409A and to the extent an amount is payable within a time period, the time during which such amount is paid will shall be in the discretion of the Company. (d) 7.5 All reimbursements and in-kind benefits provided under this Agreement will shall be made or provided in accordance with the requirements of Section 409A. To the extent that any reimbursements are taxable to Executive, such reimbursements will shall be paid to Executive on or before the last day of the Executive’s taxable year following the taxable year in which the related expense was incurred. Reimbursements will shall not be subject to liquidation or exchange for another benefit and the amount of such reimbursements that Executive receives in one taxable year will shall not affect the amount of such reimbursements that Executive receives in any other taxable year. (e) This Section 5(e) shall be construed 7.6 Anything in accordance with Code Sections 280G and 4999this Agreement to the contrary notwithstanding, or any successor provisions thereto, and in the guidance issued thereunder (collectively, “Section 280G”), and the terms “parachute payment” and “excess parachute payment” as used herein have the meanings ascribed to them under Section 280G. (i) If event it shall be determined that the aggregate payments and benefits constituting parachute payments whichany payment, but for the operation award, benefit or distribution (or any acceleration of this provisionany payment, would become payable award, benefit or distributable distribution) by the Company to or for the benefit of Executive, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, any other agreement, Agreement or any benefit plan (collectively, the “Total Payments”), otherwise) would result in any excess parachute payments becoming be subject to the excise tax imposed by Section 4999 of the Code Section 4999, or any successor provision thereto, or any interest or penalties are incurred by Executive with respect to such excise tax (such the excise tax, together with such interest and penalties, collectively, the “Excise Tax”), then the Total Payments Exhibit D attached hereto shall be reduced to an amount equal to one dollar less than the amount which would cause the parachute payments to be subject to the Excise Tax; provided that the reduction contemplated by this Section 5(e) shall be applied only if the net after-tax benefit to Executive after such reduction would be greater than the net after-tax benefit to Executive without such reduction (notwithstanding the application of any Excise Tax on the unreduced Total Payments). For the avoidance of doubt, Executive shall be responsible for the payment of any Excise Tax arising from the Total Paymentsapply. (ii) The Company will reduce or eliminate the Total Payments by first reducing or eliminating any cash parachute payments that do not constitute deferred compensation within the meaning of Section 409A, then by reducing or eliminating any other parachute payments that do not constitute deferred compensation within the meaning of Section 409A, then by reducing or eliminating all other parachute payments that do constitute deferred compensation within the meaning of Section 409A, beginning with those payments last to be paid, subject to and in accordance with all applicable requirements of Section 409A. (iii) Unless the Company and Executive otherwise agree in writing, all calculations and determinations necessary to effectuate this provision, including without limitation determinations as to whether a reduction in payments or benefits is required and the amount thereof, whether any item of compensation constitutes a parachute payment, the amount, if any, subject to the Excise Tax (including determinations as to whether any portion of the excess parachute payments constitutes reasonable compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B)), and the present value of any parachute payment, shall be made, consistent with Section 280G, by Xxxxx & Xxxxx LLP (the “Advisors”). For this purpose, the Advisors may make reasonable assumptions and approximations; may rely on reasonable, good faith interpretations concerning the application of Section 280G; and may rely upon such other tax, legal, valuation or other specialists as they deem appropriate. Executive’s applicable federal, state, and local income taxes shall be computed at the highest applicable marginal rate, net of the maximum reduction, if any, in federal income taxes which could be obtained from a deduction of such state and local taxes. The Company and Executive agree to furnish the Advisors with such information and documents as the Advisors reasonably request to make such calculations and determinations as soon as practicable upon such request. The Company shall direct the Advisors to provide Executive with a written statement of its conclusions, setting forth the basis therefor, including detailed supporting calculations and copies of any written opinions or advice upon which such conclusions rely (the “Report”), within ten business days after their receipt of all required information and documents. Executive shall have five business days thereafter to notify the Advisors and the Company in writing of any reasonable and substantive objections to the Report. The Company shall direct the Advisors to promptly consider in good faith and respond to such objections and provide Executive a revised Report reflecting appropriate adjustments (unless the Advisors determine that no adjustments are necessary). The Advisors’ final calculations and determinations (as adjusted, if applicable) shall be conclusive and binding on all parties for all purposes. The Company shall bear all costs the Advisors may reasonably incur in connection with the process contemplated by this Section 5(e).

Other Tax Matters. (a) ‌ The Company will withhold shall be entitled to all applicable federalstate and federal investment tax credits, state, and local taxes, FICA (Social Security and Medicare), and workers’ compensation contributions allowances for depreciation and other amounts as may be required similar tax provisions allowable by applicable federal or State law with respect to compensation payable the Project, to Executive the extent allowed or Executive’s spouse pursuant otherwise not prohibited by the Act. ASSIGNMENT OF THIS AGREEMENT; SURVIVAL OF COMPANY’S OBLIGATION‌‌ Section 8.01 Sublet or Assignment.‌ The Company may at any time assign or otherwise transfer all of its rights and interest hereunder to this Agreement. In any sublessee or assignee, as the event Executive’s spouse receives the Group Health Coverage pursuant to Section 3(c)case may be, selected by the Company will withhold FICA on such terms as the Company may determine in its sole discretion, provided (Social Security a) that no assignment, transfer or sublease shall affect or reduce any of the obligations of the Company hereunder, but all obligations of the Company hereunder shall continue in full force and Medicare) in effect as the year obligations of Executive’s death a principal and not of a guarantor or presumed deathsurety, issue a Form W-2except that the Company shall be released from its obligations hereunder upon the written consent and release of the County, which shall not be unreasonably withheld, conditioned nor delayed, to any sublease, assignment or transfer, and report the net amount of Company contributions on a Form 1099-MISC. The Company will continue to report the full amount of Company contributions that it provides for Executive’s spouse in each successive calendar year on a Form 1099-MISC. (b) Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and applied so that the payment of Company or sublessee shall give the benefits set forth herein will either be exempt from, or in the alternative, comply with, the requirements of Code Section 409A. A termination of employment will not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment that are considered “nonqualified deferred compensation” under Section 409A unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes County written notice of any such provision of this Agreementassignment, references transfer or sublease and within thirty (30) days thereafter shall furnish or cause to a “termination,” “Termination Date” or like terms will mean “separation from service.” Notwithstanding any provision of this Agreement be furnished to the contraryCounty a true and complete copy of any such sublease, if Executive is a “specified employee” within the meaning of Section 409A on the date of his “separation from service,” any payments assignment or arrangements due upon a termination of Executive’s employment under any arrangement that constitutes a “nonqualified deferral of compensation” within the meaning of Section 409A and other transfer which do not otherwise qualify under the exemptions under Treas. Regs. Section 1.409A-1 (including without limitation, the short-term deferral exemption or the permitted payments under Treas. Regs. Section 1.409A-1(b)(9)(iii)(A)), will be delayed and paid or provided on the earlier of (i) the date which is six months after Executive’s “separation from service” for any reason other than death or presumed death, or (ii) the date of Executive’s death or presumed death. (c) After his Termination Date, Executive will have no duties or responsibilities that are inconsistent with having a “separation from service” within the meaning of Section 409A as shall include assumption of the Termination Date andindemnity as provided in Section 7.04 hereof, notwithstanding anything in the Agreement to the contrary, distributions upon termination of employment of nonqualified deferred compensation may only be made upon a “separation from service” as determined under Section 409A and such date will be the Termination Date for purposes all other provisions of this Agreement. Each payment The Company acknowledges that such a transfer of an interest under this Agreement or otherwise will be treated as a separate payment may cause the applicable portion of the Project to become ineligible for purposes negotiated fees in lieu of Section 409A. In no event may Executivetaxes under the Act absent compliance by the Company with the Transfer Provisions; provided that, directly or indirectly, designate the calendar year of any payment to be made under this Agreement which constitutes a “nonqualified deferral of compensation” within the meaning of Section 409A and to the extent an amount is payable within a time period, the time during which such amount is paid will be in the discretion permitted by Section 00-00-000 of the Company. (d) All reimbursements and in-kind benefits provided under this Agreement will be made or provided in accordance with the requirements of Section 409A. To the extent that any reimbursements are taxable to Executive, such reimbursements will be paid to Executive on or before the last day of Executive’s taxable year following the taxable year in which the related expense was incurred. Reimbursements will not be subject to liquidation or exchange for another benefit and the amount of such reimbursements that Executive receives in one taxable year will not affect the amount of such reimbursements that Executive receives in any other taxable year. (e) This Section 5(e) shall be construed in accordance with Code Sections 280G and 4999Act, or any successor provisions thereto, and the guidance issued thereunder (collectively, “Section 280G”), and the terms “parachute payment” and “excess parachute payment” as used herein have the meanings ascribed to them under Section 280G. (i) If it shall be determined that the aggregate payments and benefits constituting parachute payments which, but for the operation of this provision, would become payable or distributable any financing arrangements entered into by the Company with respect to the Project and any security interests granted by the Company in connection therewith shall not be construed as a transfer for purposes of the Transfer Provisions. The County hereby consents to any transfers by the Company to any affiliate of the Company at any time. For such purposes, “affiliate” shall mean any person or for entity directly or indirectly controlling, controlled by or under common control with the benefit of Executive, pursuant to this Agreement, any other agreement, or any benefit plan (collectively, the “Total Payments”), would result in any excess parachute payments becoming subject to the excise tax imposed by Code Section 4999, or any successor provision thereto, or any interest or penalties with respect Company. Consent to such excise tax (such excise taxtransfer, together with such interest and penaltieshowever, collectivelyshall not constitute a release by the County under the first sentence of this Section, which release must be separately obtained from the “Excise Tax”)County. The County shall, then the Total Payments shall be reduced to an amount equal to one dollar less than the amount which would cause the parachute payments to be subject to the Excise Tax; provided that the reduction contemplated by this Section 5(e) shall be applied only if the net after-tax benefit to Executive after such reduction would be greater than Company requests, acknowledge the net after-tax benefit to Executive without such reduction (notwithstanding the application receipt and sufficiency of any Excise Tax on the unreduced Total Payments). For the avoidance of doubt, Executive shall be responsible for the payment of any Excise Tax arising from the Total Paymentssuch notice. (ii) The Company will reduce or eliminate the Total Payments by first reducing or eliminating any cash parachute payments that do not constitute deferred compensation within the meaning of Section 409A, then by reducing or eliminating any other parachute payments that do not constitute deferred compensation within the meaning of Section 409A, then by reducing or eliminating all other parachute payments that do constitute deferred compensation within the meaning of Section 409A, beginning with those payments last to be paid, subject to and in accordance with all applicable requirements of Section 409A. (iii) Unless the Company and Executive otherwise agree in writing, all calculations and determinations necessary to effectuate this provision, including without limitation determinations as to whether a reduction in payments or benefits is required and the amount thereof, whether any item of compensation constitutes a parachute payment, the amount, if any, subject to the Excise Tax (including determinations as to whether any portion of the excess parachute payments constitutes reasonable compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B)), and the present value of any parachute payment, shall be made, consistent with Section 280G, by Xxxxx & Xxxxx LLP (the “Advisors”). For this purpose, the Advisors may make reasonable assumptions and approximations; may rely on reasonable, good faith interpretations concerning the application of Section 280G; and may rely upon such other tax, legal, valuation or other specialists as they deem appropriate. Executive’s applicable federal, state, and local income taxes shall be computed at the highest applicable marginal rate, net of the maximum reduction, if any, in federal income taxes which could be obtained from a deduction of such state and local taxes. The Company and Executive agree to furnish the Advisors with such information and documents as the Advisors reasonably request to make such calculations and determinations as soon as practicable upon such request. The Company shall direct the Advisors to provide Executive with a written statement of its conclusions, setting forth the basis therefor, including detailed supporting calculations and copies of any written opinions or advice upon which such conclusions rely (the “Report”), within ten business days after their receipt of all required information and documents. Executive shall have five business days thereafter to notify the Advisors and the Company in writing of any reasonable and substantive objections to the Report. The Company shall direct the Advisors to promptly consider in good faith and respond to such objections and provide Executive a revised Report reflecting appropriate adjustments (unless the Advisors determine that no adjustments are necessary). The Advisors’ final calculations and determinations (as adjusted, if applicable) shall be conclusive and binding on all parties for all purposes. The Company shall bear all costs the Advisors may reasonably incur in connection with the process contemplated by this Section 5(e).

Other Tax Matters. (ai) The Company will withhold all applicable federal, state, and local taxes, FICA (Social Security and Medicare), and workers’ compensation contributions and other amounts as may be required by law with respect A) has not entered into an agreement or waiver or been requested to compensation payable to Executive enter into an agreement or Executive’s spouse pursuant to this Agreement. In the event Executive’s spouse receives the Group Health Coverage pursuant to Section 3(c), the Company will withhold FICA (Social Security and Medicare) in the year waiver extending any statute of Executive’s death or presumed death, issue a Form W-2, and report the net amount of Company contributions on a Form 1099-MISC. The Company will continue to report the full amount of Company contributions that it provides for Executive’s spouse in each successive calendar year on a Form 1099-MISC. (b) Notwithstanding anything herein limitations relating to the contrary, this Agreement is intended to be interpreted and applied so that the payment or collection of the benefits set forth herein will either be exempt from, or in the alternative, comply with, the requirements of Code Section 409A. A termination of employment will not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment that are considered “nonqualified deferred compensation” under Section 409A unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “Termination Date” or like terms will mean “separation from service.” Notwithstanding any provision of this Agreement to the contrary, if Executive is a “specified employee” within the meaning of Section 409A on the date of his “separation from service,” any payments or arrangements due upon a termination of Executive’s employment under any arrangement that constitutes a “nonqualified deferral of compensation” within the meaning of Section 409A and which do not otherwise qualify under the exemptions under Treas. Regs. Section 1.409A-1 (including without limitation, the short-term deferral exemption or the permitted payments under Treas. Regs. Section 1.409A-1(b)(9)(iii)(A)), will be delayed and paid or provided on the earlier of (i) the date which is six months after Executive’s “separation from service” for any reason other than death or presumed death, or (ii) the date of Executive’s death or presumed death. (c) After his Termination Date, Executive will have no duties or responsibilities that are inconsistent with having a “separation from service” within the meaning of Section 409A as of the Termination Date and, notwithstanding anything in the Agreement to the contrary, distributions upon termination of employment of nonqualified deferred compensation may only be made upon a “separation from service” as determined under Section 409A and such date will be the Termination Date for purposes of this Agreement. Each payment under this Agreement or otherwise will be treated as a separate payment for purposes of Section 409A. In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement which constitutes a “nonqualified deferral of compensation” within the meaning of Section 409A and to the extent an amount is payable within a time period, the time during which such amount is paid will be in the discretion Taxes of the Company. , (dB) All reimbursements and inis not presently contesting the Tax liability of the Company before any court, tribunal or agency, (C) has not granted a power-kind benefits provided under this Agreement will be made or provided in accordance with the requirements of Section 409A. To the extent that of-attorney relating to Tax matters to any reimbursements are taxable to Executive, such reimbursements will be paid to Executive on or before the last day of Executive’s taxable year following the taxable year in which the related expense was incurred. Reimbursements will not be subject to liquidation or exchange for another benefit and the amount of such reimbursements that Executive receives in one taxable year will not affect the amount of such reimbursements that Executive receives in any other taxable year. (e) This Section 5(e) shall be construed in accordance with Code Sections 280G and 4999, or any successor provisions theretoperson, and (D) has not applied for and/or received a ruling or determination from a taxing authority regarding a past or prospective transaction of the guidance issued thereunder (collectively, “Section 280G”), and the terms “parachute payment” and “excess parachute payment” as used herein have the meanings ascribed to them under Section 280G. (i) If it shall be determined that the aggregate payments and benefits constituting parachute payments which, but for the operation of this provision, would become payable or distributable by the Company to or for the benefit of Executive, pursuant to this Agreement, any other agreement, or any benefit plan (collectively, the “Total Payments”), would result in any excess parachute payments becoming subject to the excise tax imposed by Code Section 4999, or any successor provision thereto, or any interest or penalties with respect to such excise tax (such excise tax, together with such interest and penalties, collectively, the “Excise Tax”), then the Total Payments shall be reduced to an amount equal to one dollar less than the amount which would cause the parachute payments to be subject to the Excise Tax; provided that the reduction contemplated by this Section 5(e) shall be applied only if the net after-tax benefit to Executive after such reduction would be greater than the net after-tax benefit to Executive without such reduction (notwithstanding the application of any Excise Tax on the unreduced Total Payments). For the avoidance of doubt, Executive shall be responsible for the payment of any Excise Tax arising from the Total PaymentsCompany. (ii) The Company has not been included in any “consolidated,” “unitary” or “combined” Tax Return provided for under the laws of the United States, any foreign jurisdiction or any state or locality with respect to Taxes for any taxable period for which the statute of limitations has not expired. (iii) All Taxes which any of Seller or the Company are (or were) required by law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable as of the Closing Date. (iv) The Company has not applied for, been granted, or agreed to any accounting method change for which it will reduce be required to take into account any adjustment under Section 481 of the Code; neither the Company nor Seller has knowledge that the IRS has proposed or eliminate purported to require any such adjustment or change in accounting method. (v) There are no material security interests, other than Permitted Encumbrances, on any of the Total Payments by first reducing assets of the Company that arose in connection with any failure (or eliminating alleged failure) to pay any cash parachute payments that do Taxes. (vi) Seller is not constitute deferred compensation a “foreign person” within the meaning of Section 409A, then by reducing or eliminating any other parachute payments that do not constitute deferred compensation within the meaning of Section 409A, then by reducing or eliminating all other parachute payments that do constitute deferred compensation within the meaning of Section 409A, beginning with those payments last to be paid, subject to and in accordance with all applicable requirements of Section 409A. (iii) Unless the Company and Executive otherwise agree in writing, all calculations and determinations necessary to effectuate this provision, including without limitation determinations as to whether a reduction in payments or benefits is required and the amount thereof, whether any item of compensation constitutes a parachute payment, the amount, if any, subject to the Excise Tax (including determinations as to whether any portion 1445 of the excess parachute payments constitutes reasonable compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B)), and the present value of any parachute payment, shall be made, consistent with Section 280G, by Xxxxx & Xxxxx LLP (the “Advisors”). For this purpose, the Advisors may make reasonable assumptions and approximations; may rely on reasonable, good faith interpretations concerning the application of Section 280G; and may rely upon such other tax, legal, valuation or other specialists as they deem appropriate. Executive’s applicable federal, state, and local income taxes shall be computed at the highest applicable marginal rate, net of the maximum reduction, if any, in federal income taxes which could be obtained from a deduction of such state and local taxes. The Company and Executive agree to furnish the Advisors with such information and documents as the Advisors reasonably request to make such calculations and determinations as soon as practicable upon such request. The Company shall direct the Advisors to provide Executive with a written statement of its conclusions, setting forth the basis therefor, including detailed supporting calculations and copies of any written opinions or advice upon which such conclusions rely (the “Report”), within ten business days after their receipt of all required information and documents. Executive shall have five business days thereafter to notify the Advisors and the Company in writing of any reasonable and substantive objections to the Report. The Company shall direct the Advisors to promptly consider in good faith and respond to such objections and provide Executive a revised Report reflecting appropriate adjustments (unless the Advisors determine that no adjustments are necessary). The Advisors’ final calculations and determinations (as adjusted, if applicable) shall be conclusive and binding on all parties for all purposes. The Company shall bear all costs the Advisors may reasonably incur in connection with the process contemplated by this Section 5(e)Code.

Other Tax Matters. (a) A. The Company will shall withhold all applicable federal, state, state and local taxes, FICA (Social Security taxes income and Medicare), and workers’ compensation contributions employment taxes and other amounts as may be required by law with respect to compensation payable to Executive or Executive’s spouse You pursuant to this Agreement. In the event Executive’s spouse receives the Group Health Coverage pursuant to Section 3(c), the Company will withhold FICA (Social Security and Medicare) in the year of Executive’s death or presumed death, issue a Form W-2, and report the net amount of Company contributions on a Form 1099-MISC. The Company will continue to report the full amount of Company contributions that it provides for Executive’s spouse in each successive calendar year on a Form 1099-MISC. (b) B. Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and applied so that the payment of the benefits set forth herein will shall either be exempt from, or in the alternative, comply with, from the requirements of Code Section 409A. A termination of employment will not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment that are considered “nonqualified deferred compensation” under Section 409A unless of the Code (“Section 409A”) or shall comply with the requirements of such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “Termination Date” or like terms will mean “separation from service.” provision. Notwithstanding any provision of this Agreement to the contrary, if Executive is You are a “specified employee” (within the meaning of Section 409A on the date of his “separation from service,” 409A), any payments or arrangements due upon a termination of Executive’s your employment under any arrangement that constitutes a “nonqualified deferral of compensation” (within the meaning of Section 409A 409A) and which do not otherwise qualify under the exemptions under Treas. Regs. Section 1.409A-1 (including without limitation, the short-term deferral exemption or the permitted payments under Treas. Regs. Section 1.409A-1(b)(9)(iii)(A)), will shall be delayed and paid or provided on the earlier of (i) the date which is six months after Executive’s your “separation from service” (as such term is defined in Section 409A and the regulations and other published guidance thereunder) for any reason other than death or presumed death, or and (ii) the date of Executive’s death or presumed your death. (c) C. After his the Termination Date, Executive will You shall have no duties or responsibilities that are inconsistent with having a “separation from service” (within the meaning of Section 409A 409A) as of the Termination Date and, notwithstanding anything in the Agreement to the contrary, distributions upon termination of employment of nonqualified deferred compensation may only be made upon a “separation from service” as service”(as determined under Section 409A 409A) and such date will shall be the Termination Date for purposes of this Agreement. Each payment under this Agreement or otherwise will shall be treated as a separate payment for purposes of Section 409A. In no event may ExecutiveYou, directly or indirectly, designate the calendar year of any payment to be made under this Agreement which constitutes a “nonqualified deferral of compensation” within the meaning of Section 409A and to the extent an amount is payable within a time period, the time during which such amount is paid will shall be in the discretion of the Company. Notwithstanding the foregoing, in the event that the forty-five-day period for providing a Release set forth in Section 3 above spans two calendar years, no payment shall be made under this Agreement until the second calendar year. D. Any amounts otherwise payable to You following a termination of employment that are not so paid by reason of this Section 5 shall be paid as soon as practicable following, and in any event within thirty (d30) days following, the date that is six (6) months after your separation from service (or, if earlier, the date of your death) together with interest on the delayed payment at 5%. All reimbursements and in-kind benefits provided under this Agreement will shall be made or provided in accordance with the requirements of Section 409A. To the extent that any reimbursements are taxable 409A. E. Any reimbursement payment due to Executive, such reimbursements will You shall be paid to Executive You on or before the last day of Executive’s your taxable year following the taxable year in which the related expense was incurred. Reimbursements will are not be subject to liquidation or exchange for another benefit and the amount of such reimbursements that Executive receives You receive in one taxable year will shall not affect the amount of such reimbursements that Executive receives You receive in any other taxable year. (e) This Section 5(e) shall be construed in accordance with Code Sections 280G and 4999, or any successor provisions thereto, and the guidance issued thereunder (collectively, “Section 280G”), and the terms “parachute payment” and “excess parachute payment” as used herein have the meanings ascribed to them under Section 280G. (i) If it shall be determined that the aggregate payments and benefits constituting parachute payments which, but for the operation of this provision, would become payable or distributable by the Company to or for the benefit of Executive, pursuant to this Agreement, any other agreement, or any benefit plan (collectively, the “Total Payments”), would result in any excess parachute payments becoming subject to the excise tax imposed by Code Section 4999, or any successor provision thereto, or any interest or penalties with respect to such excise tax (such excise tax, together with such interest and penalties, collectively, the “Excise Tax”), then the Total Payments shall be reduced to an amount equal to one dollar less than the amount which would cause the parachute payments to be subject to the Excise Tax; provided that the reduction contemplated by this Section 5(e) shall be applied only if the net after-tax benefit to Executive after such reduction would be greater than the net after-tax benefit to Executive without such reduction (notwithstanding the application of any Excise Tax on the unreduced Total Payments). For the avoidance of doubt, Executive shall be responsible for the payment of any Excise Tax arising from the Total Payments. (ii) The Company will reduce or eliminate the Total Payments by first reducing or eliminating any cash parachute payments that do not constitute deferred compensation within the meaning of Section 409A, then by reducing or eliminating any other parachute payments that do not constitute deferred compensation within the meaning of Section 409A, then by reducing or eliminating all other parachute payments that do constitute deferred compensation within the meaning of Section 409A, beginning with those payments last to be paid, subject to and in accordance with all applicable requirements of Section 409A. (iii) Unless the Company and Executive otherwise agree in writing, all calculations and determinations necessary to effectuate this provision, including without limitation determinations as to whether a reduction in payments or benefits is required and the amount thereof, whether any item of compensation constitutes a parachute payment, the amount, if any, subject to the Excise Tax (including determinations as to whether any portion of the excess parachute payments constitutes reasonable compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B)), and the present value of any parachute payment, shall be made, consistent with Section 280G, by Xxxxx & Xxxxx LLP (the “Advisors”). For this purpose, the Advisors may make reasonable assumptions and approximations; may rely on reasonable, good faith interpretations concerning the application of Section 280G; and may rely upon such other tax, legal, valuation or other specialists as they deem appropriate. Executive’s applicable federal, state, and local income taxes shall be computed at the highest applicable marginal rate, net of the maximum reduction, if any, in federal income taxes which could be obtained from a deduction of such state and local taxes. The Company and Executive agree to furnish the Advisors with such information and documents as the Advisors reasonably request to make such calculations and determinations as soon as practicable upon such request. The Company shall direct the Advisors to provide Executive with a written statement of its conclusions, setting forth the basis therefor, including detailed supporting calculations and copies of any written opinions or advice upon which such conclusions rely (the “Report”), within ten business days after their receipt of all required information and documents. Executive shall have five business days thereafter to notify the Advisors and the Company in writing of any reasonable and substantive objections to the Report. The Company shall direct the Advisors to promptly consider in good faith and respond to such objections and provide Executive a revised Report reflecting appropriate adjustments (unless the Advisors determine that no adjustments are necessary). The Advisors’ final calculations and determinations (as adjusted, if applicable) shall be conclusive and binding on all parties for all purposes. The Company shall bear all costs the Advisors may reasonably incur in connection with the process contemplated by this Section 5(e).

Other Tax Matters. (a) The Company will shall withhold all applicable federal, state, and local taxes, FICA (Social Security and Medicare), social security and workers’ compensation contributions and other amounts as may be required by law with respect to compensation payable to Executive or Executive’s spouse pursuant to this Agreement. In the event Executive’s spouse receives the Group Health Coverage pursuant to Section 3(c), the Company will withhold FICA (Social Security and Medicare) in the year of Executive’s death or presumed death, issue a Form W-2, and report the net amount of Company contributions on a Form 1099-MISC. The Company will continue to report the full amount of Company contributions that it provides for Executive’s spouse in each successive calendar year on a Form 1099-MISC. (b) Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and applied so that the payment of the benefits set forth herein will shall either be exempt from, or in the alternative, comply with, the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the published guidance thereunder (“Section 409A. 409A”). A termination of employment will shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment that are considered “nonqualified deferred compensation” under Section 409A unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “Termination Date,” or like terms will shall mean “separation from service.” Notwithstanding any provision of this Agreement to the contrary, if Executive is a “specified employee” within the meaning of Section 409A on the date of his “separation from service,” 409A, any payments or arrangements due upon a termination of Executive’s employment under any arrangement that constitutes a “nonqualified deferral of compensation” within the meaning of Section 409A and which do not otherwise qualify under the exemptions under Treas. Regs. Section 1.409A-1 (including without limitation, the short-term deferral exemption or the permitted payments under Treas. Regs. Section 1.409A-1(b)(9)(iii)(A)), will shall be delayed and paid or provided on the earlier of (ia) the date which is six months after Executive’s “separation from service” for any reason other than death or presumed death, or (iib) the date of Executive’s death death. This Section 6(b) may be amended without requiring Executive’s consent to the extent necessary (including retroactively) by the Company solely in order to preserve compliance with Section 409A. The preceding shall not be construed as a guarantee of any particular tax effect for Executive’s compensation and benefits and the Company does not guarantee that any compensation or presumed death.benefits provided under this Agreement will satisfy the provisions of Section 409A. (c) After his any Termination Date, Executive will shall have no duties or responsibilities that are inconsistent with having a “separation from service” within the meaning of Section 409A as of the Termination Date and, notwithstanding anything in the Agreement to the contrary, distributions upon termination of employment of nonqualified deferred compensation may only be made upon a “separation from service” as determined under Section 409A and such date will shall be the Termination Date for purposes of this Agreement. Each payment under this Agreement or otherwise will shall be treated as a separate payment for purposes of Section 409A. In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement which constitutes a “nonqualified deferral of compensation” within the meaning of Section 409A and to the extent an amount is payable within a time period, the time during which such amount is paid will shall be in the discretion of the Company. (d) All reimbursements and in-kind benefits provided under this Agreement will shall be made or provided in accordance with the requirements of Section 409A. To the extent that any reimbursements are taxable to Executive, such reimbursements will shall be paid to Executive on or before the last day of Executive’s taxable year following the taxable year in which the related expense was incurred. Reimbursements will shall not be subject to liquidation or exchange for another benefit and the amount of such reimbursements that Executive receives in one taxable year will shall not affect the amount of such reimbursements that Executive receives in any other taxable year. (e) This Section 5(e) shall be construed in accordance with Code Sections 280G and 4999If any payment, benefit, or distribution of any successor provisions thereto, and the guidance issued thereunder (collectively, “Section 280G”), and the terms “parachute payment” and “excess parachute payment” as used herein have the meanings ascribed to them under Section 280G. (i) If it shall be determined that the aggregate payments and benefits constituting parachute payments which, but for the operation of this provision, would become payable or distributable by the Company type to or for the benefit of Executive, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement, any other agreement, Agreement or any benefit plan otherwise (collectively, the “Total Parachute Payments”), ) would result in any excess parachute payments becoming (as determined by the Company) subject Executive to the excise tax imposed by under Section 4999 of the Code Section 4999, or any successor provision thereto, or any interest or penalties with respect to such excise tax (such excise tax, together with such interest and penalties, collectively, the “Excise Tax”), then then, at the Total Executive’s election, Parachute Payments shall be reduced to an so that the maximum amount equal to of the Parachute Payments (after reduction) shall be one dollar less than the amount which would cause the parachute payments Parachute Payments to be subject to the Excise Tax; provided that . In such event, the reduction contemplated by this Section 5(e) Company shall be applied only if the net after-tax benefit to Executive after such reduction would be greater than the net after-tax benefit to Executive without such reduction (notwithstanding the application of any Excise Tax on the unreduced Total Payments). For the avoidance of doubt, Executive shall be responsible for the payment of any Excise Tax arising from the Total Payments. (ii) The Company will reduce or eliminate the Total Parachute Payments by first reducing or eliminating any cash parachute payments Parachute Payments that do not constitute deferred compensation within the meaning of Section 409A, then by reducing or eliminating any other parachute payments Parachute Payments that do not constitute deferred compensation within the meaning of Section 409A, then by reducing or eliminating all other parachute payments Parachute Payments that do constitute deferred compensation within the meaning of Section 409A, beginning with those payments last to be paid, subject to and in accordance with all applicable requirements of Section 409A. (iii) Unless the Company and Executive otherwise agree in writing, all calculations and determinations necessary to effectuate this provision, including without limitation determinations as to whether a reduction in payments or benefits is required and the amount thereof, whether any item of compensation constitutes a parachute payment, the amount, if any, subject to the Excise Tax (including determinations as to whether any portion of the excess parachute payments constitutes reasonable compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B)), and the present value of any parachute payment, shall be made, consistent with Section 280G, by Xxxxx & Xxxxx LLP (the “Advisors”). For this purpose, the Advisors may make reasonable assumptions and approximations; may rely on reasonable, good faith interpretations concerning the application of Section 280G; and may rely upon such other tax, legal, valuation or other specialists as they deem appropriate. Executive’s applicable federal, state, and local income taxes shall be computed at the highest applicable marginal rate, net of the maximum reduction, if any, in federal income taxes which could be obtained from a deduction of such state and local taxes. The Company and Executive agree to furnish the Advisors with such information and documents as the Advisors reasonably request to make such calculations and determinations as soon as practicable upon such request. The Company shall direct the Advisors to provide Executive with a written statement of its conclusions, setting forth the basis therefor, including detailed supporting calculations and copies of any written opinions or advice upon which such conclusions rely (the “Report”), within ten business days after their receipt of all required information and documents. Executive shall have five business days thereafter to notify the Advisors and the Company in writing of any reasonable and substantive objections to the Report. The Company shall direct the Advisors to promptly consider in good faith and respond to such objections and provide Executive a revised Report reflecting appropriate adjustments (unless the Advisors determine that no adjustments are necessary). The Advisors’ final calculations and determinations (as adjusted, if applicable) shall be conclusive and binding on all parties for all purposes. The Company shall bear all costs the Advisors may reasonably incur in connection with the process contemplated by this Section 5(e).

Other Tax Matters. (a) The Company will withhold Manager shall, without any further consent of the Members being required (except as specifically required by the Code or other Applicable Law), have the authority to make any and all applicable elections for federal, state, local, and local taxes, FICA foreign tax purposes (Social Security including any and Medicareall special and/or curative tax allocations and other adjustments permitted under the Code), as well as any and workers’ compensation contributions and all other amounts as may be required by law with respect to compensation payable to Executive or Executive’s spouse pursuant to this Agreement. In Company elections permitted under the event Executive’s spouse receives the Group Health Coverage pursuant to Section 3(cCode (including elections regarding methods of depreciation), the Company will withhold FICA (Social Security and Medicare) in the year of Executive’s death or presumed death, issue a Form W-2, and report the net amount of Company contributions on a Form 1099-MISC. The Company will continue to report the full amount of Company contributions that it provides for Executive’s spouse in each successive calendar year on a Form 1099-MISC. (b) Notwithstanding anything herein to the contrary, The Members acknowledge that this Agreement is intended creates a partnership for federal and state income tax purposes (and only for such purposes), and hereby agree not to elect to be interpreted and applied so that excluded from the payment application of Subchapter K of Chapter 1 of Subtitle A of the benefits set forth herein will either Code or any similar state statute. (c) Any Person from time to time designated by the Manager (with such person’s consent) shall be exempt fromthe “Tax Matters Partner,” who shall initially be the Manager and shall be authorized and required to represent the Company (at the Company’s expense) in connection with all examinations of the Company’s affairs by tax authorities, or including resulting administrative and judicial proceedings, and to Accend Capital Illinois LLCrn expend Company funds for professional services and other expenses reasonably incurred in connection therewith. The Person acting as the alternative, comply with, the requirements of Code Section 409A. A termination of employment will not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment that are considered “nonqualified deferred compensation” under Section 409A unless such termination Tax Matters Partner is also a hereby designated as the partnership representative of the “separation from servicepartnership,” within the meaning of Section 409A and, for purposes 6223 of any such provision of this Agreement, references to a “termination,” “Termination Date” or like terms will mean “separation from service.” Notwithstanding any provision of this Agreement to the contrary, if Executive is a “specified employee” within the meaning of Section 409A on the date of his “separation from service,” any payments or arrangements due upon a termination of Executive’s employment under any arrangement that constitutes a “nonqualified deferral of compensation” within the meaning of Section 409A and which do not otherwise qualify under the exemptions under Treas. Regs. Section 1.409A-1 Code (including without limitation, the short-term deferral exemption or the permitted payments under Treas. Regs. Section 1.409A-1(b)(9)(iii)(A)), will be delayed and paid or provided on the earlier of (i) the date which is six months after Executive’s “separation from service” for any reason other than death or presumed death, or (ii) the date of Executive’s death or presumed death. (c) After his Termination Date, Executive will have no duties or responsibilities that are inconsistent with having a “separation from service” within the meaning of Section 409A as in effect as of the Termination Date andeffective date of the Bipartisan Budget Act of 2015, notwithstanding anything and as the same may be amended from time to time), and any similar provisions under any other state, local or non-U.S. tax laws. Each Member agrees to cooperate in the Agreement designations of the Tax Matters Partner and the partnership representative under this Section, including signing any form or statement required under Treasury Regulation Section 301.6231(a)(7)-1(e). Further, each Member agrees to cooperate with the Company and to do or refrain from doing any or all things reasonably requested by the Company with respect to the contrary, distributions upon termination conduct of employment of nonqualified deferred compensation may only be made upon a “separation from service” as determined under Section 409A and such date will be the Termination Date for purposes of this Agreement. Each payment under this Agreement or otherwise will be treated as a separate payment for purposes of Section 409A. In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement which constitutes a “nonqualified deferral of compensation” within the meaning of Section 409A and to the extent an amount is payable within a time period, the time during which such amount is paid will be in the discretion of the Companyproceedings. (d) All reimbursements Without limiting the forgoing, and in-kind benefits provided under this Agreement will be made or provided in accordance with not withstanding anything contained herein to the requirements of Section 409A. To the extent that contrary: (i) For any reimbursements are taxable to Executive, such reimbursements will be paid to Executive on or before the last day of Executive’s taxable year following the taxable year in which the related expense was incurred. Reimbursements will not be subject Company qualifies to liquidation or exchange for another benefit and the amount of such reimbursements that Executive receives in one taxable year will not affect the amount of such reimbursements that Executive receives in any other taxable year. (e) This Section 5(e) shall be construed in accordance with Code Sections 280G and 4999, or any successor provisions thereto, and the guidance issued thereunder (collectively, “Section 280G”), and the terms “parachute payment” and “excess parachute payment” as used herein have the meanings ascribed to them make an election under Section 280G. (i6221(b) If it shall be determined that of the aggregate payments and benefits constituting parachute payments which, but for the operation of this provision, would become payable or distributable by the Company to or for the benefit of ExecutiveCode, pursuant to this Agreement, any which audits and other agreement, or any benefit plan (collectivelyproceedings by the Internal Revenue Service are undertaken by Members and not the Company, the “Total Payments”), would result in any excess parachute payments becoming subject to the excise Company shall include with its income tax imposed by Code Section 4999, or any successor provision thereto, or any interest or penalties with respect to return for such excise tax (taxable year an election under such excise tax, together with such interest and penalties, collectively, the “Excise Tax”), then the Total Payments shall be reduced to an amount equal to one dollar less than the amount which would cause the parachute payments to be subject to the Excise Taxsection; provided that the reduction contemplated by this Section 5(e) shall be applied only if the net after-tax benefit to Executive after such reduction would be greater than the net after-tax benefit to Executive without such reduction (notwithstanding the application of any Excise Tax on the unreduced Total Payments). For the avoidance of doubt, Executive shall be responsible for the payment of any Excise Tax arising from the Total Payments.and (ii) The For any taxable year of the Company for which the Company does not qualify to make the election referenced in Section 4.5(d)(i) above, the Manager (in its sole discretion) shall determine whether the Company will reduce or eliminate make an election to have Section 6226 of the Total Payments by first reducing or eliminating any cash parachute payments Code apply, pursuant to which Internal Revenue Service adjustments are passed through to Members of the Company. If the Manager determines that do the Company will not constitute deferred compensation within make the meaning election, and, therefore, that Section 6225 of Section 409Athe Code will instead apply, then any tax payments made by reducing or eliminating any other parachute payments that do not constitute deferred compensation within the meaning of Section 409A, then by reducing or eliminating all other parachute payments that do constitute deferred compensation within the meaning of Section 409A, beginning with those payments last to be paid, subject to and in accordance with all applicable requirements of Section 409A. (iii) Unless the Company and Executive otherwise agree in writing, all calculations and determinations necessary to effectuate this provision, including without limitation determinations as to whether on behalf of a reduction in payments Member or benefits is required and the amount thereof, whether any item of compensation constitutes a parachute payment, the amount, if any, subject to the Excise Tax (including determinations as to whether any portion of the excess parachute payments constitutes reasonable compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B)), and the present value of any parachute payment, former Member shall be made, consistent with Section 280G, by Xxxxx & Xxxxx LLP (the “Advisors”). For this purpose, the Advisors may make reasonable assumptions and approximations; may rely on reasonable, good faith interpretations concerning the application of Section 280G; and may rely upon such other tax, legal, valuation or other specialists as they deem appropriate. Executive’s applicable federal, state, and local income taxes shall be computed at the highest applicable marginal rate, net of the maximum reduction, if anytreated, in federal income taxes which could be obtained from the Manager’s sole discretion, either as a deduction Distribution to such Member or as an expense incurred by the Company on behalf of such state and local taxes. The Company and Executive agree to furnish the Advisors with such information and documents as the Advisors reasonably request to make such calculations and determinations as soon as practicable upon such request. The Company shall direct the Advisors to provide Executive with a written statement of its conclusions, setting forth the basis therefor, including detailed supporting calculations and copies of any written opinions Member or advice upon former Member for which such conclusions rely (Member or former Member shall promptly reimburse the “Report”), within ten business days after their Company upon receipt of all required information and documents. Executive shall have five business days thereafter to notify notice thereof from the Advisors and the Company in writing of any reasonable and substantive objections to the Report. The Company shall direct the Advisors to promptly consider in good faith and respond to such objections and provide Executive a revised Report reflecting appropriate adjustments (unless the Advisors determine that no adjustments are necessary). The Advisors’ final calculations and determinations (as adjusted, if applicable) shall be conclusive and binding on all parties for all purposes. The Company shall bear all costs the Advisors may reasonably incur in connection with the process contemplated by this Section 5(e)Company.

Other Tax Matters. (a) The Company will withhold all applicable federal, state, and local taxes, FICA (Social Security and Medicare), and workers’ compensation contributions and other amounts as may be required by law with respect to compensation payable to Executive or Executive’s spouse pursuant to this Agreement. In To the event Executive’s spouse receives the Group Health Coverage pursuant to Section 3(c), the Company will withhold FICA (Social Security and Medicare) in the year of Executive’s death or presumed death, issue a Form W-2, and report the net amount of Company contributions on a Form 1099-MISC. The Company will continue to report the full amount of Company contributions that it provides for Executive’s spouse in each successive calendar year on a Form 1099-MISC. (b) Notwithstanding anything herein to the contraryextent applicable, this Agreement is intended to shall be interpreted and applied so that the payment in accordance with Section 409A of the benefits set forth herein will either be exempt fromCode and Department of Treasury regulations and other interpretive guidance issued thereunder, or in the alternative, comply with, the requirements of Code Section 409A. A termination of employment will not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment that are considered “nonqualified deferred compensation” under Section 409A unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of including without limitation any such provision of this Agreementregulations or other such guidance that may be issued after the Effective Date (collectively, references to a “termination,” “Termination Date” or like terms will mean “separation from service.” Section 409A”). Notwithstanding any provision of this Agreement to the contrary, if Executive is a “specified employee” within in the meaning of event that following the Effective Date, the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A on 409A, the date of his “separation from service,” any payments Company may adopt such amendments to this Agreement or arrangements due upon a termination of Executive’s employment under any arrangement that constitutes a “nonqualified deferral of compensation” within the meaning of Section 409A and which do not otherwise qualify under the exemptions under Treas. Regs. Section 1.409A-1 adopt other policies or procedures (including without limitationamendments, the short-term deferral exemption or the permitted payments under Treas. Regs. Section 1.409A-1(b)(9)(iii)(A)policies and procedures with retroactive effect), will be delayed or take any other actions that the Company determines are necessary or appropriate to preserve the intended tax treatment of the compensation and paid or provided on the earlier of benefits payable hereunder, including without limitation actions intended to (i) exempt the date which is six months after Executive’s “separation compensation and benefits payable under this Agreement from service” for any reason other than death or presumed deathSection 409A, or and/or (ii) comply with the date requirements of Executive’s death Section 409A, provided, however, that this Section 10 does not, and shall not be construed so as to, create any obligation on the part of the Company to adopt any such amendments, policies or presumed deathprocedures or to take any other such actions. In no event shall the Company, its affiliates or any of their respective officers, directors or advisors be liable for any taxes, interest or penalties imposed under Section 409A or any corresponding provision of state or local law. (cb) After his Termination DateConsistent with the Employment Agreement, Executive will have no duties each payment or responsibilities that are inconsistent with having a “separation from service” within the meaning installment of Section 409A as of the Termination Date and, notwithstanding anything in the Agreement to the contrary, distributions upon termination of employment of nonqualified deferred compensation may only be made upon a “separation from service” as determined under Section 409A and such date will be the Termination Date for purposes of this Agreement. Each payment under this Agreement or otherwise will payments hereunder shall be treated as a separate payment for purposes of Section 409A. In Notwithstanding anything to the contrary in this Agreement, no event may compensation or benefits shall be paid to Executive during the six-month period following Executive, directly or indirectly, designate ’s “separation from service” with the calendar year of any payment to be made under this Agreement which constitutes a “nonqualified deferral of compensation” Company (within the meaning of Section 409A and to 409A) if the extent an amount is payable within a time period, Company determines that paying such amounts at the time during or times indicated in this Agreement would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code. If the payment of any such amounts is delayed as a result of the previous sentence, then on the first business day following the end of such six-month period (or such earlier date upon which such amount is can be paid will be under Section 409A without resulting in a prohibited distribution, including as a result of Executive’s death), the discretion of Company shall pay Executive a lump-sum amount equal to the Companycumulative amount that would have otherwise been payable to Executive during such period (without interest). (dc) All To the extent any reimbursements and or in-kind benefits provided due to Executive under this Agreement will be made or provided in accordance with the requirements of constitute “deferred compensation” to which Treasury Regulation Section 409A. To the extent that 1.409A-3(i)(1)(iv) would apply, any reimbursements are taxable to Executive, such reimbursements will or in-kind benefits shall be paid to Executive on or before reimbursed reasonably promptly, but in no event later than December 31st of the last day of Executive’s taxable year following the taxable year in which the related expense was incurred. Reimbursements will The amount of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and Executive’s right to such payments or reimbursements of any such expenses shall not be subject to liquidation or exchange for another benefit and the amount of such reimbursements that Executive receives in one taxable year will not affect the amount of such reimbursements that Executive receives in any other taxable yearbenefit. (ed) This Section 5(e) shall be construed in accordance with Code Sections 280G and 4999, or Notwithstanding any successor provisions thereto, and provision herein to the guidance issued thereunder (collectively, “Section 280G”), and the terms “parachute payment” and “excess parachute payment” as used herein have the meanings ascribed to them under Section 280G. (i) If it shall be determined that the aggregate payments and benefits constituting parachute payments which, but for the operation of this provision, would become payable or distributable by the Company to or for the benefit of Executive, pursuant to this Agreement, any other agreement, or any benefit plan (collectivelycontrary, the “Total Payments”), would result in any excess parachute payments becoming subject to the excise tax imposed by Code Section 4999, or any successor provision thereto, or any interest or penalties with respect to such excise tax (such excise tax, together with such interest and penalties, collectively, the “Excise Tax”), then the Total Payments shall be reduced to an amount equal to one dollar less than the amount which would cause the parachute payments to be subject to the Excise Tax; provided that the reduction contemplated by this Section 5(e) shall be applied only if the net after-tax benefit to Executive after such reduction would be greater than the net after-tax benefit to Executive without such reduction (notwithstanding the application of any Excise Tax on the unreduced Total Payments). For the avoidance of doubt, Executive shall be responsible for the payment of any Excise Tax arising from the Total Payments. (ii) The Company will reduce or eliminate the Total Payments by first reducing or eliminating any cash parachute payments that do not constitute deferred compensation within the meaning provisions of Section 409A, then by reducing or eliminating any other parachute payments that do not constitute deferred compensation within the meaning of Section 409A, then by reducing or eliminating all other parachute payments that do constitute deferred compensation within the meaning of Section 409A, beginning with those payments last to be paid, subject to and in accordance with all applicable requirements of Section 409A. (iii) Unless the Company and Executive otherwise agree in writing, all calculations and determinations necessary to effectuate this provision, including without limitation determinations as to whether a reduction in payments or benefits is required and the amount thereof, whether any item of compensation constitutes a parachute payment, the amount, if any, subject to the Excise Tax (including determinations as to whether any portion 10 of the excess parachute payments constitutes reasonable compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B)), and the present value of any parachute payment, shall be made, consistent with Section 280G, Employment Agreement are incorporated herein by Xxxxx & Xxxxx LLP (the “Advisors”). For this purpose, the Advisors may make reasonable assumptions and approximations; may rely on reasonable, good faith interpretations concerning the application of Section 280G; and may rely upon such other tax, legal, valuation or other specialists as they deem appropriate. Executive’s applicable federal, state, and local income taxes shall be computed at the highest applicable marginal rate, net of the maximum reduction, if any, in federal income taxes which could be obtained from a deduction of such state and local taxes. The Company and Executive agree to furnish the Advisors with such information and documents as the Advisors reasonably request to make such calculations and determinations as soon as practicable upon such request. The Company shall direct the Advisors to provide Executive with a written statement of its conclusions, setting forth the basis therefor, including detailed supporting calculations and copies of any written opinions or advice upon which such conclusions rely (the “Report”), within ten business days after their receipt of all required information and documents. Executive shall have five business days thereafter to notify the Advisors and the Company in writing of any reasonable and substantive objections to the Report. The Company shall direct the Advisors to promptly consider in good faith and respond to such objections and provide Executive a revised Report reflecting appropriate adjustments (unless the Advisors determine that no adjustments are necessary). The Advisors’ final calculations and determinations (as adjusted, if applicable) shall be conclusive and binding on all parties for all purposes. The Company shall bear all costs the Advisors may reasonably incur in connection with the process contemplated by this Section 5(e)reference.

Other Tax Matters. (a) The 9.3.1 No audit or investigation of the Company will withhold all applicable federal, state, and local taxes, FICA (Social Security and Medicare), and workers’ compensation contributions and other amounts as may be required or the Subsidiaries by law any Tax authorities is ongoing with respect to compensation payable to Executive or Executive’s spouse pursuant to this Agreement. In the event Executive’s spouse receives the Group Health Coverage pursuant to Section 3(c)Tax matters, save as set forth in Disclosure Schedule 9.3.1. 9.3.2 No dispute between the Company will withhold FICA (Social Security or the Subsidiaries and Medicare) the relevant Tax authorities is ongoing, save those set forth in the year of Executive’s death Disclosure Schedule 9.3.1. There are no Tax liens or presumed death, issue a Form W-2, and report the net amount of Company contributions mortgages on a Form 1099-MISC. The Company will continue to report the full amount of Company contributions that it provides for Executive’s spouse in each successive calendar year on a Form 1099-MISC. (b) Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and applied so that the payment any asset of the benefits Company or the Subsidiaries. Save as set forth herein will either be exempt fromin Disclosure Schedule 9.3.1, there are no law suits, proceedings, investigations or in claims initiated or pending against the alternative, comply with, the requirements of Code Section 409A. A termination of employment will not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment that are considered “nonqualified deferred compensation” under Section 409A unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “Termination Date” or like terms will mean “separation from service.” Notwithstanding any provision of this Agreement to the contrary, if Executive is a “specified employee” within the meaning of Section 409A on the date of his “separation from service,” any payments or arrangements due upon a termination of Executive’s employment under any arrangement that constitutes a “nonqualified deferral of compensation” within the meaning of Section 409A and which do not otherwise qualify under the exemptions under Treas. Regs. Section 1.409A-1 (including without limitation, the short-term deferral exemption Company or the permitted payments under Treas. Regs. Section 1.409A-1(b)(9)(iii)(A)), will be delayed and paid or provided on the earlier of (i) the date which is six months after Executive’s “separation from service” for any reason other than death or presumed death, or (ii) the date of Executive’s death or presumed death. (c) After his Termination Date, Executive will have no duties or responsibilities that are inconsistent with having a “separation from service” within the meaning of Section 409A as of the Termination Date and, notwithstanding anything in the Agreement to the contrary, distributions upon termination of employment of nonqualified deferred compensation may only be made upon a “separation from service” as determined under Section 409A and such date will be the Termination Date for purposes of this Agreement. Each payment under this Agreement or otherwise will be treated as a separate payment for purposes of Section 409A. In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement which constitutes a “nonqualified deferral of compensation” within the meaning of Section 409A and to the extent an amount is payable within a time period, the time during which such amount is paid will be in the discretion of the Company. (d) All reimbursements and in-kind benefits provided under this Agreement will be made or provided in accordance with the requirements of Section 409A. To the extent that any reimbursements are taxable to Executive, such reimbursements will be paid to Executive on or before the last day of Executive’s taxable year following the taxable year in which the related expense was incurred. Reimbursements will not be subject to liquidation or exchange for another benefit and the amount of such reimbursements that Executive receives in one taxable year will not affect the amount of such reimbursements that Executive receives in any other taxable year. (e) This Section 5(e) shall be construed in accordance with Code Sections 280G and 4999, or any successor provisions thereto, and the guidance issued thereunder (collectively, “Section 280G”), and the terms “parachute payment” and “excess parachute payment” as used herein have the meanings ascribed to them under Section 280G. (i) If it shall be determined that the aggregate payments and benefits constituting parachute payments which, but for the operation of this provision, would become payable or distributable by the Company to or for the benefit of Executive, pursuant to this Agreement, any other agreement, or any benefit plan (collectively, the “Total Payments”), would result in any excess parachute payments becoming subject to the excise tax imposed by Code Section 4999, or any successor provision thereto, or any interest or penalties Subsidiaries with respect to such excise tax (such excise taxTaxes of any nature and, together with such interest and penalties, collectively, the “Excise Tax”), then the Total Payments shall be reduced to an amount equal to one dollar less than the amount which would cause the parachute payments to be subject to the Excise Tax; provided that the reduction contemplated Seller’s knowledge, there is no basis for such law suits, proceedings, investigations or claims. No relief (by this Section 5(eway of deducting, reduction, set off, exemption or otherwise) shall be applied only if the net after-tax benefit to Executive after such reduction would be greater than the net after-tax benefit to Executive without such reduction (notwithstanding the application from, against or in respect of any Excise Tax on taxation or charge has been claimed by or given to the unreduced Total Payments). For Company or the avoidance of doubtSubsidiaries which could, Executive shall to the Seller’s knowledge, be responsible for the payment withdrawn, postponed, restricted or otherwise lost as a result of any Excise act, omission, event or circumstance arising or occurring at any time before the Closing Date. All deferred Tax arising from the Total Payments. (ii) The Company will reduce or eliminate the Total Payments by first reducing or eliminating any cash parachute payments that do not constitute deferred compensation within the meaning liabilities of Section 409A, then by reducing or eliminating any other parachute payments that do not constitute deferred compensation within the meaning of Section 409A, then by reducing or eliminating all other parachute payments that do constitute deferred compensation within the meaning of Section 409A, beginning with those payments last to be paid, subject to and in accordance with all applicable requirements of Section 409A. (iii) Unless the Company and Executive otherwise agree in writing, all calculations and determinations necessary to effectuate this provision, including without limitation determinations as to whether a reduction in payments or benefits is required and the amount thereof, whether any item of compensation constitutes a parachute payment, the amountSubsidiaries, if any, subject to are reflected in the Excise Tax (including determinations as to whether any portion of the excess parachute payments constitutes reasonable compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B)), CLD Company Annual Accounts 2005 and the present value of any parachute payment, shall be made, consistent with Section 280G, by Xxxxx & Xxxxx LLP (the “Advisors”). For this purpose, the Advisors may make reasonable assumptions and approximations; may rely on reasonable, good faith interpretations concerning the application of Section 280G; and may rely upon such other tax, legal, valuation or other specialists as they deem appropriate. Executive’s applicable federal, state, and local income taxes shall be computed at the highest applicable marginal rate, net of the maximum reduction, if any, in federal income taxes which could be obtained from a deduction of such state and local taxes. respective amounts have been fully reserved for. 9.3.3 The Company and Executive agree the Subsidiaries have not entered into, nor are, nor have been a party to, nor, to furnish the Advisors with Seller’s knowledge, have otherwise been involved in any scheme or arrangement designed for the purpose of unlawfully avoiding Taxes, and have, to the Seller’s knowledge, not unlawfully invoked an exemption or reduction of Tax. 9.3.4 Set forth in Disclosure Schedule 9.3.4 is a list and description of the tax carry forward losses (“pertes récupérables” / “aftrekbare bedrijfsverliezen”) and investment credits (“déductions pour investissements” / “investeringsaftrek”) available to the Company or the Subsidiaries, which are admitted by the relevant Tax authorities. 9.3.5 No claim has been made by any Tax authority in a jurisdiction where any of the Subsidiaries or the Company does not file Tax returns to the effect that such information and documents as company is or may be liable for Taxes in that jurisdiction. 9.3.6 Neither the Advisors reasonably request Company nor the Subsidiaries (A) are a party to, bound by, or obligated under, any Tax sharing agreement pursuant to which it will have any obligation to make such calculations any payment to any person (other than one of the other Subsidiaries or the Company) after Closing and determinations as soon as practicable upon such request. The Company shall direct the Advisors to provide Executive with a written statement of its conclusions, setting forth the basis therefor, including detailed supporting calculations and copies (B) are or may be liable for Taxes of any written opinions other person as a member of a consolidated or advice upon which such conclusions rely (an affiliated group, or as a transferee or successor, or similar principle, in any taxing jurisdiction. 9.3.7 The Purchaser will not be required to deduct or withhold any amount from the “Report”), within ten business days after their receipt of all required information and documents. Executive shall have five business days thereafter to notify purchase price for the Advisors and the Company in writing of any reasonable and substantive objections Shares pursuant to the Report. The Company shall direct Agreement. 9.3.8 No transaction or operation entered into by the Advisors CLD Companies has been carried out on conditions which can give rise to promptly consider in good faith and respond to such objections and provide Executive a revised Report reflecting appropriate adjustments (unless the Advisors determine that no adjustments are necessary). The Advisors’ final calculations and determinations (as adjusted, if applicable) shall be conclusive and binding on all parties for all purposes. The Company shall bear all costs the Advisors may reasonably incur in connection with the process contemplated by this Section 5(e)material adverse Tax adjustments.

Other Tax Matters. (a) The Company will shall withhold all applicable federal, state, and local taxes, FICA (Social Security and Medicare), social security and workers’ compensation contributions and other amounts as may be required by law with respect to compensation payable to Executive or Executive’s spouse pursuant to this Agreement. In the event Executive’s spouse receives the Group Health Coverage pursuant to Section 3(c), the Company will withhold FICA (Social Security and Medicare) in the year of Executive’s death or presumed death, issue a Form W-2, and report the net amount of Company contributions on a Form 1099-MISC. The Company will continue to report the full amount of Company contributions that it provides for Executive’s spouse in each successive calendar year on a Form 1099-MISC. (b) Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and applied so that the payment of the benefits set forth herein will shall either be exempt from, or in the alternative, comply with, the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the published guidance thereunder (“Section 409A. 409A”). A termination of employment will shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment that are considered “nonqualified deferred compensation” under Section 409A unless such termination is also a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “Termination Date,” or like terms will shall mean “separation from service.” Notwithstanding any provision of this Agreement to the contrary, if Executive is a “specified employee” within the meaning of Section 409A on the date of his “separation from service,” 409A, any payments or arrangements due upon a termination of Executive’s employment under any arrangement that constitutes a “nonqualified deferral of compensation” within the meaning of Section 409A and which do not otherwise qualify under the exemptions under Treas. Regs. Section 1.409A-1 (including without limitation, the short-term deferral exemption or the permitted payments under Treas. Regs. Section 1.409A-1(b)(9)(iii)(A1.409A- 1(b)(9)(iii)(A)), will shall be delayed and paid or provided on the earlier of (ia) the date which is six months after Executive’s “separation from service” for any reason other than death or presumed death, or (iib) the date of Executive’s death death. This Agreement may be amended without requiring Executive’s consent to the extent necessary (including retroactively) by the Company in order to preserve compliance with Section 409A. The preceding shall not be construed as a guarantee of any particular tax effect for Executive’s compensation and benefits and the Company does not guarantee that any compensation or presumed death.benefits provided under this Agreement will satisfy the provisions of Section 409A. (c) After his any Termination Date, Executive will shall have no duties or responsibilities that are inconsistent with having a “separation from service” within the meaning of Section 409A as of the Termination Date and, notwithstanding anything in the Agreement to the contrary, distributions upon termination of employment of nonqualified deferred compensation may only be made upon a “separation from service” as determined under Section 409A and such date will shall be the Termination Date for purposes of this Agreement. Each payment under this Agreement or otherwise will shall be treated as a separate payment for purposes of Section 409A. In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement which constitutes a “nonqualified deferral of compensation” within the meaning of Section 409A and to the extent an amount is payable within a time period, the time during which such amount is paid will shall be in the discretion of the Company. (d) All reimbursements and in-kind benefits provided under this Agreement will shall be made or provided in accordance with the requirements of Section 409A. To the extent that any reimbursements are taxable to Executive, such reimbursements will shall be paid to Executive on or before the last day of Executive’s taxable year following the taxable year in which the related expense was incurred. Reimbursements will shall not be subject to liquidation or exchange for another benefit and the amount of such reimbursements that Executive receives in one taxable year will shall not affect the amount of such reimbursements that Executive receives in any other taxable year. (e) This Section 5(e) shall be construed in accordance with Code Sections 280G and 4999If any payment, benefit, or distribution of any successor provisions thereto, and the guidance issued thereunder (collectively, “Section 280G”), and the terms “parachute payment” and “excess parachute payment” as used herein have the meanings ascribed to them under Section 280G. (i) If it shall be determined that the aggregate payments and benefits constituting parachute payments which, but for the operation of this provision, would become payable or distributable by the Company type to or for the benefit of Executive, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement, any other agreement, Agreement or any benefit plan otherwise (collectively, the “Total Parachute Payments”), ) would result in any excess parachute payments becoming (as determined by the Company) subject Executive to the excise tax imposed by under Section 4999 of the Code Section 4999, or any successor provision thereto, or any interest or penalties with respect to such excise tax (such excise tax, together with such interest and penalties, collectively, the “Excise Tax”), then the Total Parachute Payments shall be reduced to an so that the maximum amount equal to of the Parachute Payments (after reduction) shall be one dollar less than the amount which would cause the parachute payments Parachute Payments to be subject to the Excise Tax; provided that the reduction contemplated by this Section 5(e) shall be applied only if the net after-tax benefit to Executive after such reduction would be greater than the net after-tax benefit to Executive without such reduction (notwithstanding the application of any Excise Tax on the unreduced Total Payments). For the avoidance of doubt, Executive shall be responsible for the payment of any Excise Tax arising from the Total Payments. (ii) The Company will shall reduce or eliminate the Total Parachute Payments by first reducing or eliminating any cash parachute payments Parachute Payments that do not constitute deferred compensation within the meaning of Section 409A, then by reducing or eliminating any other parachute payments Parachute Payments that do not constitute deferred compensation within the meaning of Section 409A, then by reducing or eliminating all other parachute payments Parachute Payments that do constitute deferred compensation within the meaning of Section 409A, beginning with those payments last to be paid, subject to and in accordance with all applicable requirements of Section 409A. (iii) Unless the Company and Executive otherwise agree in writing, all calculations and determinations necessary to effectuate this provision, including without limitation determinations as to whether a reduction in payments or benefits is required and the amount thereof, whether any item of compensation constitutes a parachute payment, the amount, if any, subject to the Excise Tax (including determinations as to whether any portion of the excess parachute payments constitutes reasonable compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B)), and the present value of any parachute payment, shall be made, consistent with Section 280G, by Xxxxx & Xxxxx LLP (the “Advisors”). For this purpose, the Advisors may make reasonable assumptions and approximations; may rely on reasonable, good faith interpretations concerning the application of Section 280G; and may rely upon such other tax, legal, valuation or other specialists as they deem appropriate. Executive’s applicable federal, state, and local income taxes shall be computed at the highest applicable marginal rate, net of the maximum reduction, if any, in federal income taxes which could be obtained from a deduction of such state and local taxes. The Company and Executive agree to furnish the Advisors with such information and documents as the Advisors reasonably request to make such calculations and determinations as soon as practicable upon such request. The Company shall direct the Advisors to provide Executive with a written statement of its conclusions, setting forth the basis therefor, including detailed supporting calculations and copies of any written opinions or advice upon which such conclusions rely (the “Report”), within ten business days after their receipt of all required information and documents. Executive shall have five business days thereafter to notify the Advisors and the Company in writing of any reasonable and substantive objections to the Report. The Company shall direct the Advisors to promptly consider in good faith and respond to such objections and provide Executive a revised Report reflecting appropriate adjustments (unless the Advisors determine that no adjustments are necessary). The Advisors’ final calculations and determinations (as adjusted, if applicable) shall be conclusive and binding on all parties for all purposes. The Company shall bear all costs the Advisors may reasonably incur in connection with the process contemplated by this Section 5(e).