Common use of Payment Upon Change in Control Clause in Contracts

Payment Upon Change in Control. 2.1 Provided that the Employee is employed by the Employer on the closing of any transaction constituting a Change in Control, then the Employer shall pay to the Employee a lump sum in an amount equal to the [USE FOR INVESTMENT EXECUTIVES ONLY: Annualized Draw of the Investment Executive][USE FOR ALL OTHER EMPLOYEES: (I) sum of (a) Employee's Base Salary and (b) Employee's Bonus Opportunity, (II) divided by twelve (12) and (III) multiplied by [INSERT APPLICABLE NUMBER]. 2.2 The amount set forth in Section 2.1 shall be paid to the Employee as soon as practicable following the closing of the Change in Control, but in no event more than thirty (30) days following the closing of the Change in Control. 2.3 Neither the Employer nor the Employee may accelerate delivery of any payment that may be required to be made pursuant to this Agreement to a date earlier than the date set forth in this Section 2. Neither the Employer nor the Employee may defer delivery of any payment that may be required to be made pursuant to this Agreement unless such deferral complies in all respects with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and any successor provision thereto (the "Code"), and any applicable guidance and Treasury Regulations issued thereunder ("Section 409A"). 2.4 Notwithstanding anything to the contrary in this Agreement, any payment under this Agreement shall be made without regard to whether the deductibility of such payment (or any other "parachute payments," as that term is defined in Section 280G of the Code, to or for the Employee's benefit) would be limited or precluded by Section 280G and without regard to whether such payment (or any other "parachute payments" as so defined) would subject the Employee to the federal excise tax levied on certain "excess parachute payments" under Section 4999 of the Code; provided, however, that if the total of all "parachute payments" to or for the Employee's benefit, after reduction for all federal, state and local taxes (including the tax described in Section 4999 of the Code, if applicable) with respect to such payments (the "Total After-Tax Payments"), would be increased by the limitation or elimination of any payment under this Agreement or any "parachute payments" under other agreements or arrangements between the Employee and the Employer or FSP or any successor entity, then the amount payable under this Agreement (or the "parachute payment" under such other agreement or arrangement as the Employer and the Employee shall mutually determine) shall be reduced to the extent, and only to the extent, necessary to maximize the Total After-

Payment Upon Change in Control. 2.1 Provided that Notwithstanding any other provision in this Agreement to the Employee is employed by the Employer on the closing of any transaction constituting contrary, if a “Change in Control” of the Company (as defined herein) shall occur during the Term, then the Employer shall pay and after such Change in Control but prior to the end of the Term the Company terminates Employee’s employment without Cause with such termination being effective during the Term, in lieu of any other amounts payable under this Agreement, Employee shall be entitled to receive (i) the greater of (A) the Base Salary through the end of the Term or (B) fifty percent (50%) of the annual Base Salary, in either case in a lump sum in an amount equal to the [USE FOR INVESTMENT EXECUTIVES ONLY: Annualized Draw payment, payable immediately upon cessation of employment and (ii) a pro-rata portion of the Investment Executive][USE FOR ALL OTHER EMPLOYEES: Bonus, contingent on the Company’s achievement of the EBITDA Target for the year during which termination occurred, payable promptly following completion and filing of the Company’s year-end audit for such year (I) sum of (a) Employee's Base Salary and (b) Employee's Bonus Opportunity, (II) divided by twelve (12) and (III) multiplied by [INSERT APPLICABLE NUMBER]. 2.2 The amount set forth in Section 2.1 such payments shall be paid net of appropriate tax and other withholdings, and are referred to collectively as the Employee as soon as practicable following the closing of the “Change in ControlControl Payments”); provided, however, that if such Change in Control Payments, either alone or together with other payments or benefits, either cash or non-cash, that Employee has the right to receive from the Company, including, but in no event more than thirty (30) days following the closing of the Change in Control. 2.3 Neither the Employer nor the Employee may accelerate delivery not limited to, accelerated vesting or payment of any payment that may be required to be made pursuant to this Agreement to a date earlier than the date set forth in this Section 2. Neither the Employer nor the Employee may defer delivery of any payment that may be required to be made pursuant to this Agreement unless such deferral complies in all respects with the requirements of Section 409A of the Internal Revenue Code of 1986deferred compensation, as amendedoptions, and any successor provision thereto (the "Code"), and any applicable guidance and Treasury Regulations issued thereunder ("Section 409A"). 2.4 Notwithstanding anything to the contrary in this Agreement, any payment under this Agreement shall be made without regard to whether the deductibility of such payment (stock appreciation rights or any other "benefits payable to Employee under any plan for the benefit of employees, which would constitute an “excess parachute payments," payment” (as that term is defined in Section 280G of the Code, to or for the Employee's benefit) would be limited or precluded by Section 280G and without regard to whether such payment (or any other "parachute payments" as so defined) would subject the Employee to the federal excise tax levied on certain "excess parachute payments" under Section 4999 of the Code; provided, however, that if the total of all "parachute payments" to or for the Employee's benefit, after reduction for all federal, state and local taxes (including the tax described in Section 4999 of the Code, if applicable) with respect to such payments (the "Total After-Tax Payments"), would be increased by the limitation then such Change in Control Payments or elimination of any payment under this Agreement or any "parachute payments" under other agreements or arrangements between the Employee and the Employer or FSP or any successor entity, then the amount payable under this Agreement (or the "parachute payment" under such other agreement or arrangement as the Employer and the Employee shall mutually determine) benefits shall be reduced to the extentlargest amount that will not result in receipt by Employee of an excess parachute payment. A Change in Control will have no other effect on this Agreement, which will remain in full force and only to the extent, necessary to maximize the Total After-effect.

Payment Upon Change in Control. 2.1 Provided (i) To the extent that the Employee is employed by the Employer on the closing of any transaction constituting there shall be a Change in ControlControl of PSID on or before September 30, then the Employer shall pay 2013, as hereinafter defined, notwithstanding any term to the Employee contrary in this Amended and Restated Agreement, Xxxxxxxxx shall be entitled to receive the Change in Control Compensation, as hereafter defined. (ii) For all purposes of this Amended and Restated Agreement, a lump sum Change in an amount equal to Control shall have the [USE FOR INVESTMENT EXECUTIVES ONLY: Annualized Draw same definition as in the PSID 2009 Stock Incentive Plan, approved by the stockholders on November 10, 2009. (iii) For all purposes of this Amended and Restated Agreement, the Investment Executive][USE FOR ALL OTHER EMPLOYEES: (I) term Change in Control Compensation shall mean the sum of (aA) Employee's Base Salary any and (b) Employee's Bonus Opportunity, (II) divided by twelve (12) and (III) multiplied by [INSERT APPLICABLE NUMBER]. 2.2 The amount set forth in Section 2.1 shall be paid to all earned but unpaid compensation as of the Employee as soon as practicable following the closing date of the Change in Control, but ; (B) five (5) times the 2011 base salary paid by PSID to Xxxxxxxxx; and (C) five (5) times the average bonus paid by PSID and/or VeriChip to Xxxxxxxxx for the three (3) full calendar years immediately prior to the Change in no event more than thirty Control. The Change in Control Compensation shall be paid to Xxxxxxxxx within ten (3010) days following the closing of the Change in Control. 2.3 Neither the Employer nor the Employee may accelerate delivery of . In addition, any payment that may be required to be made pursuant to this Agreement to a date earlier than the date set forth in this Section 2. Neither the Employer nor the Employee may defer delivery of any payment that may be required to be made pursuant to this Agreement unless such deferral complies in all respects with the requirements of Section 409A outstanding stock options and unvested restricted stock held by Xxxxxxxxx as of the Internal Revenue Code Change in Control shall become vested and exercisable as of 1986, as amendedsuch date, and any successor provision thereto (the "Code"), and any applicable guidance and Treasury Regulations issued thereunder ("Section 409A"). 2.4 Notwithstanding anything to the contrary in this Agreement, any payment under this Agreement shall be made without regard to whether the deductibility of such payment (or any other "parachute payments," remain exercisable as that term is defined in Section 280G of the Code, to or for the Employee's benefit) would be limited or precluded by Section 280G and without regard to whether such payment (or any other "parachute payments" as so defined) would subject the Employee to the federal excise tax levied on certain "excess parachute payments" under Section 4999 life of the Code; provided, however, that if the total of all "parachute payments" to or for the Employee's benefit, after reduction for all federal, state and local taxes (including the tax described option. Any Change in Section 4999 of the Code, if applicable) with respect to such payments (the "Total After-Tax Payments"), would be increased by the limitation or elimination of any payment under this Agreement or any "parachute payments" under other agreements or arrangements between the Employee and the Employer or FSP or any successor entity, then the amount payable under this Agreement (or the "parachute payment" under such other agreement or arrangement as the Employer and the Employee shall mutually determine) Control Compensation shall be reduced by THREE MILLION THREE HUNDRED NINETY-FOUR THOUSAND TWO HUNDRED TWENTY-THREE DOLLARS AND TWENTY CENTS ($3,394,223.20) and shall be capped at SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($750,000.00). Xxxxxxxxx’x right to any Change in Control Compensation shall terminate on September 30, 2013. For the extentavoidance of confusion, and only to the extent, necessary to maximize calculation of any “Change in Control Compensation” shall not include the Total After-THREE MILLION THREE HUNDRED NINETY-FOUR THOUSAND TWO HUNDRED TWENTY-THREE DOLLARS AND TWENTY CENTS ($3,394,223.20) paid hereunder.

Payment Upon Change in Control. 2.1 Provided that the Employee is employed by the Employer on the closing If within eighteen (18) months of any transaction constituting a Change in Control, then as that term is defined herein, (the Employer "Transition Period") Employee's employment is terminated for other than good cause, as set forth in Section 5.5, or Employee refuses to accept or voluntarily resigns from a position other than a Qualified Position, as that term is defined below, in addition to any amounts which may be due to Employee pursuant to Section 6.3, Employee shall pay to the Employee a receive in one lump sum severance compensation in an amount equal to the [USE FOR INVESTMENT EXECUTIVES ONLY: Annualized Draw two (2) years of his Base Salary (as of the Investment Executive][USE FOR ALL OTHER EMPLOYEES: date of the change of control) plus (Itwo) sum 2 year's bonus (based on the bonus received for the last full fiscal year immediately preceding the Change of (a) Employee's Base Salary and (b) Employee's Bonus OpportunityControl). A "Change in Control" means the acquisition, (II) divided directly or indirectly of more than 50% of the outstanding shares of any class of voting securities of Garden Fresh by twelve (12) and (III) multiplied by [INSERT APPLICABLE NUMBER]. 2.2 The amount set forth in Section 2.1 any person or entity or a merger, consolidation or sale of all or substantially all of the assets of Garden Fresh, such that the individuals constituting the Board of Garden Fresh immediately prior to any such occurrence shall be paid cease during the Transition Period to constitute a majority of the Board, unless the election of each director who was not a director prior to the Employee as soon as practicable following Transition Period was approved by vote of at least two-thirds of the closing directors then in office who were directors prior to the Transition Period. Notwithstanding the foregoing, an acquisition of the requisite percentage of voting securities in connection with a public offering of securities by Garden Fresh for the primary purpose of providing capital resources to Garden Fresh shall not be considered a "Change in Control" for purposes of this Section 6.4. A "Qualified Position" is an executive officer position with the entity surviving the Change in Control, but in no event more than thirty (30) days following with substantially the closing same responsibilities as those held by the Employee as of the Change in Control. 2.3 Neither the Employer nor the Employee may accelerate delivery date of any payment that may be required to be made pursuant to this Agreement to a date earlier than the date set forth in this Section 2. Neither the Employer nor the Employee may defer delivery of any payment that may be required to be made pursuant to this Agreement unless such deferral complies in all respects with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and any successor provision thereto (the "Code"), and any applicable guidance and Treasury Regulations issued thereunder ("Section 409A"). 2.4 Notwithstanding anything to the contrary in this Agreement, any payment under this Agreement shall be made without regard which position reports directly to whether the deductibility Board of such payment (or any other Directors of the "parachute paymentsUltimate Parent Entity," as that term is defined in the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, of the entity surviving the Change in Control. Also notwithstanding the foregoing, if Garden Fresh determines that the amounts payable to Employee under this Agreement, when considered together with any other amounts payable to Employee as a result of a Change in Control, cause such payments to be treated as excess parachute payments within the meaning of Section 280G of the Internal Revenue Code, Garden Fresh shall reduce the amount payable to or for the Employee's benefit) would be limited or precluded by Employee under this Section 280G and without regard 6.4 to whether such payment (or any other "parachute payments" as so defined) would an amount that will not subject the Employee to the federal excise imposition of tax levied on certain "excess parachute payments" under Section 4999 of the Internal Revenue Code; provided, however, that if the total of all "parachute payments" to or for the Employee's benefit, after reduction for all federal, state and local taxes (including the tax described in Section 4999 of the Code, if applicable) with respect to such payments (the "Total After-Tax Payments"), would be increased by the limitation or elimination of any payment under this Agreement or any "parachute payments" under other agreements or arrangements between the Employee and the Employer or FSP or any successor entity, then the amount payable under this Agreement (or the "parachute payment" under such other agreement or arrangement as the Employer and the Employee shall mutually determine) shall be reduced to the extent, and only to the extent, necessary to maximize the Total After-.

Payment Upon Change in Control. 2.1 Provided that Notwithstanding any other provision in this Agreement to the Employee is employed by the Employer on the closing of any transaction constituting contrary, if a “Change in Control” of the Company (as defined herein) shall occur during the Term, then the Employer shall pay and after such Change in Control but prior to the end of the Term the Company terminates Employee’s employment without Cause with such termination being effective during the Term, in lieu of any other amounts payable under this Agreement, Employee shall be entitled to vest in full in any portion of the Restricted Stock Unit Award that has not become vested as of the date of his termination and to receive (i) the greater of (A) the Base Salary through the end of the Term and (B) fifty percent (50%) of the annual Base Salary, in either case in a lump sum in an amount equal to the [USE FOR INVESTMENT EXECUTIVES ONLY: Annualized Draw payment, payable immediately upon cessation of employment and (ii) a pro-rata portion of the Investment Executive][USE FOR ALL OTHER EMPLOYEES: Bonus, contingent on the Company’s achievement of any performance criteria relating to such Bonus, payable promptly following completion and filing of the Company’s year-end audit for the applicable year (I) sum of (a) Employee's Base Salary and (b) Employee's Bonus Opportunity, (II) divided by twelve (12) and (III) multiplied by [INSERT APPLICABLE NUMBER]. 2.2 The amount set forth in Section 2.1 such payments shall be paid net of appropriate tax and other withholdings, and are referred to collectively as the Employee as soon as practicable following the closing of the “Change in ControlControl Payments”); provided, however, that if such Change in Control Payments, either alone or together with other payments or benefits, either cash or non-cash, that Employee has the right to receive from the Company, including, but in no event more than thirty (30) days following the closing of the Change in Control. 2.3 Neither the Employer nor the Employee may accelerate delivery not limited to, accelerated vesting or payment of any payment that may be required to be made pursuant to this Agreement to a date earlier than the date set forth in this Section 2. Neither the Employer nor the Employee may defer delivery of any payment that may be required to be made pursuant to this Agreement unless such deferral complies in all respects with the requirements of Section 409A of the Internal Revenue Code of 1986deferred compensation, as amendedoptions, and any successor provision thereto (the "Code"), and any applicable guidance and Treasury Regulations issued thereunder ("Section 409A"). 2.4 Notwithstanding anything to the contrary in this Agreement, any payment under this Agreement shall be made without regard to whether the deductibility of such payment (stock appreciation rights or any other "benefits payable to Employee under any plan for the benefit of employees, which would constitute an “excess parachute payments," payment” (as that term is defined in Section 280G of the Code, to or for the Employee's benefit) would be limited or precluded by Section 280G and without regard to whether such payment (or any other "parachute payments" as so defined) would subject the Employee to the federal excise tax levied on certain "excess parachute payments" under Section 4999 of the Code; provided, however, that if the total of all "parachute payments" to or for the Employee's benefit, after reduction for all federal, state and local taxes (including the tax described in Section 4999 of the Code, if applicable) with respect to such payments (the "Total After-Tax Payments"), would be increased by the limitation then such Change in Control Payments or elimination of any payment under this Agreement or any "parachute payments" under other agreements or arrangements between the Employee and the Employer or FSP or any successor entity, then the amount payable under this Agreement (or the "parachute payment" under such other agreement or arrangement as the Employer and the Employee shall mutually determine) benefits shall be reduced to the extentlargest amount that will not result in receipt by Employee of an excess parachute payment. A Change in Control will have no other effect on this Agreement, which will remain in full force and only to the extent, necessary to maximize the Total After-effect.

Payment Upon Change in Control. 2.1 Provided that Notwithstanding any other provision in this Agreement to the Employee is employed by the Employer on the closing of any transaction constituting contrary, if a Change in Control, then the Employer shall pay to the Employee a lump sum in an amount equal to the [USE FOR INVESTMENT EXECUTIVES ONLY: Annualized Draw of the Investment Executive][USE FOR ALL OTHER EMPLOYEES: Control (I) sum of (a) Employee's Base Salary and (b) Employee's Bonus Opportunity, (II) divided by twelve (12) and (III) multiplied by [INSERT APPLICABLE NUMBER]. 2.2 The amount set forth in Section 2.1 shall be paid to the Employee as soon as practicable following the closing of the Change in Control, but in no event more than thirty (30) days following the closing of the Change in Control. 2.3 Neither the Employer nor the Employee may accelerate delivery of any payment that may be required to be made pursuant to this Agreement to a date earlier than the date set forth in this Section 2. Neither the Employer nor the Employee may defer delivery of any payment that may be required to be made pursuant to this Agreement unless such deferral complies in all respects with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and any successor provision thereto (the "Code"), and any applicable guidance and Treasury Regulations issued thereunder ("Section 409A"). 2.4 Notwithstanding anything to the contrary in this Agreement, any payment under this Agreement shall be made without regard to whether the deductibility of such payment (or any other "parachute payments," as that term is defined in Section 280G of the Code, to or for the Employee's benefit) would be limited or precluded by Section 280G and without regard to whether such payment (or any other "parachute payments" as so defined) would subject the Employee to the federal excise tax levied on certain "excess parachute payments" under Section 4999 of the CodeCompany’s 2006 Long-Term Incentive Plan; provided, however, that if in no event shall the total acquisition of additional securities by Coliseum Capital Management, LLC and/or its affiliates be considered a Change in Control for purposes of this Agreement) shall occur during the Term and after such Change in Control the Company and LogistiCare terminate Employee’s employment without Cause or Employee terminates Employee’s employment for Good Reason, Employee shall be entitled to all "parachute payments" to or of the amounts and benefits specified in clauses (i) – (v) of Section 6(a); provided that (i) the benefit set forth in clause (iii) of Section 6(a) shall equal the sum of (A) thirty (30) months of the Employee’s Base Salary in effect as of the date of such termination (for the Employee's benefitavoidance of doubt, after not taking into account any reduction for all federal, state and local taxes (including the tax described in Section 4999 of the Codethereof that triggers Good Reason, if applicable) with respect to such payments (the "Total After-Tax Payments"), would be increased and (B) two and one-half (2.5) multiplied by the limitation target Bonus for the full fiscal year in which Employee’s employment is terminated, such sum payable in a lump sum immediately upon the effective date of Employee’s termination of employment (or, to the extent necessary to avoid the imposition of penalty taxes on Employee under Code Section 409A, in installments in accordance with the terms of clause (iii) of Section 6(a) if such termination occurs at any time after two (2) years following such Change in Control), and (ii) all equity awards granted under Section 3(b)(ii) or elimination Section 3(b)(iii) of any payment under this Agreement or that, as of the date of such termination, remain unvested shall fully vest as of the date of such termination (with any "parachute payments" under performance-based awards outstanding at the time of such Change in Control treated at the time of the Change in Control in the manner determined by the Board generally for similarly situated senior executives of the Company and LogistiCare, without limiting the proviso clause below), with all Market Strike Options, Premium Priced Options and other agreements or arrangements between stock option equity awards, if any, that are outstanding and vested (taking into account the Employee terms of this Section 6(d)) as of the date of such termination shall remain outstanding and exercisable until the Employer or FSP or any successor entity, then date that is the amount payable under this Agreement earlier of the third (3rd) anniversary of the date of such termination or the "parachute payment" under expiration of such stock option’s term. A Change in Control will have no other agreement or arrangement as the Employer effect on this Agreement, which will remain in full force and the Employee shall mutually determine) shall be reduced effect; provided, that notwithstanding anything to the extent, and only contrary in the Company’s 2006 Long-Term Incentive Plan or the applicable award agreement to the extentcontrary, necessary in the event any equity awards Employee holds which are unvested as of the consummation of such Change in Control are not assumed, substituted or replaced by the applicable entity acquiring the outstanding capital stock of the Company in connection with such Change in Control, such unvested equity awards shall automatically vest effective immediately prior to maximize and contingent upon the Total After-consummation of such Change in Control (with any performance-based awards outstanding at the time of such Change in Control treated at the time of the Change in Control in the manner determined by the Board generally for similarly situated senior executives of the Company and LogistiCare without limiting the foregoing terms of this proviso clause).

Payment Upon Change in Control. 2.1 Provided that the Employee is employed by the Employer on the closing of any transaction constituting a Change in Control, then the Employer shall pay to the Employee a lump sum in an amount equal to the [USE FOR INVESTMENT EXECUTIVES ONLY: Annualized Draw of the Investment Executive][USE FOR INVESTMENT EXECUTIVE/EXECUTIVE VICE PRESIDENT ONLY: average of the lump sum payments made by the Employer to each of the Employer's (i) Chief Financial Officer and (ii) Chief Operating Officer, in each case, pursuant to the Retention Agreement between the Employer and such individual][USE FOR ALL OTHER EMPLOYEES: (I) sum of (a) Employee's Base Salary and (b) Employee's Bonus Opportunity, (II) divided by twelve (12) and (III) multiplied by [INSERT APPLICABLE NUMBER]. 2.2 The amount set forth in Section 2.1 shall be paid to the Employee as soon as practicable following the closing of the Change in Control, but in no event more than thirty (30) days following the closing of the Change in Control. 2.3 Neither the Employer nor the Employee may accelerate delivery of any payment that may be required to be made pursuant to this Agreement to a date earlier than the date set forth in this Section 2. Neither the Employer nor the Employee may defer delivery of any payment that may be required to be made pursuant to this Agreement unless such deferral complies in all respects with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and any successor provision thereto (the "Code"), and any applicable guidance and Treasury Regulations issued thereunder ("Section 409A"). 2.4 Notwithstanding anything to the contrary in this Agreement, any payment under this Agreement shall be made without regard to whether the deductibility of such payment (or any other "parachute payments," as that term is defined in Section 280G of the Code, to or for the Employee's benefit) would be limited or precluded by Section 280G and without regard to whether such payment (or any other "parachute payments" as so defined) would subject the Employee to the federal excise tax levied on certain "excess parachute payments" under Section 4999 of the Code; provided, however, that if the total of all "parachute payments" to or for the Employee's benefit, after reduction for all federal, state and local taxes (including the tax described in Section 4999 of the Code, if applicable) with respect to such payments (the "Total After-Tax Payments"), would be increased by the limitation or elimination of any payment under this Agreement or any "parachute payments" under other agreements or arrangements between the Employee and the Employer or FSP or any successor entity, then the amount payable under this Agreement (or the "parachute payment" under such other agreement or arrangement as the Employer and the Employee shall mutually determine) shall be reduced to the extent, and only to the extent, necessary to maximize the Total After-

Payment Upon Change in Control. 2.1 Provided that (a) If the Employee is employed by gives the Employer on Notice of Exercise described in Section 3(F)(ii) to the closing of any transaction constituting a Change in ControlCompany, then the Employer Company shall pay to the Employee a lump sum in an amount equal to three (3) times the [USE FOR INVESTMENT EXECUTIVES ONLY: Annualized Draw of the Investment Executive][USE FOR ALL OTHER EMPLOYEES: (I) sum of (a) Employee's Base Salary and base amount less one dollar (b) $1.00). The Employee's Bonus Opportunity, (II) divided by twelve (12) and (III) multiplied by [INSERT APPLICABLE NUMBER]. 2.2 The base amount set forth shall be determined as defined in Section 2.1 shall be paid to the Employee as soon as practicable following the closing of the Change in Control, but in no event more than thirty (30) days following the closing of the Change in Control. 2.3 Neither the Employer nor the Employee may accelerate delivery of any payment that may be required to be made pursuant to this Agreement to a date earlier than the date set forth in this Section 2. Neither the Employer nor the Employee may defer delivery of any payment that may be required to be made pursuant to this Agreement unless such deferral complies in all respects with the requirements of Section 409A 280G of the Internal Revenue Code of 1986, as amended, and any successor provision thereto amended (the "Code"); provided, however, that amounts deferred under the Company's non- qualified deferred compensation plan shall be included in determining the base amount; further provided that such base amount shall not include any payment received in connection with the merger of the Company with CCB Financial Corporation or any compensation in years prior to 2000 (the "Excluded 2000 Compensation"); further provided that such base amount shall include compensation (other than Excluded 2000 Compensation) received by the Employee after December 31, 1999 (which compensation shall be annualized in the case of a partial year; The Company shall, within five (5) business days after the date of the Notice of Exercise, deliver to the Employee its cashier's check in the amount payable pursuant to this Section 3(F)(iii)(a), and payment of such amount shall terminate the Employee's rights to receive any applicable guidance and Treasury Regulations issued thereunder ("Section 409A"all other payments, rights or benefits pursuant to Sections 3(A). 2.4 Notwithstanding anything to the contrary in , 3(B), 3(D), 4 and 5 of this Agreement, other than any payments, rights or benefits arising (x) pursuant to Section 3(E), Section 3(F)(iii), Section 3(G) or Section 12 of this Agreement, or (y) from any other agreement, plan or policy which by its terms or by operation of law provides for the continuation of such payments, rights or benefits after the termination of the Employee's employment relationship with the Company. (b) Such lump sum payment under this Agreement shall be made without regard in addition to whether and shall not be offset or reduced by any other amounts payable or that may become payable to the deductibility of such payment (Employee or his beneficiaries by the Company, including, but not limited to, salary, severance pay, consulting fees, disability benefits, termination benefits, retirement benefits, life and health insurance benefits, or any other "parachute payments," as compensation or benefit payment that term is defined in Section 280G part of any valid previous, current, or future contract, plan or agreement, written or oral, or any indemnification payments that may be or become payable to the Employee pursuant to the provisions of the CodeCompany's Certificate of Incorporation, By-laws or otherwise. (c) If Employee gives the Notice of Exercise, in addition to or for the lump sum payment under Section 3(F)(iii)(a) above, the Company shall pay to the Employee in a lump sum in cash within five (5) business days after the date of the Notice of Exercise the aggregate of the following amounts: (1) the sum of (A) the Employee's benefitBase Salary through the date of Notice of Exercise, (B) would be limited the product of (x) the highest annual bonus paid or precluded by Section 280G payable, including any bonus or portion thereof which has been earned but deferred, during the three year period immediately prior to the date of the Notice of Exercise (such amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the date of the Notice of Exercise and the denominator of which is 365 and (c) any accrued vacation pay, in each case to the extent not theretofore paid; and (2) the amount equal to the excess (without regard any present value discount) of (A) the actuarial equivalent of the benefit under the Company's qualified defined benefit retirement plan (the "Retirement Plan") (utilizing actuarial assumptions no less favorable to whether such payment (or any other "parachute payments" as so defined) would subject the Employee than those in effect under the Company's Retirement Plan immediately prior to the federal excise tax levied on certain Change in Control), and the National Bank of Commerce Supplemental Employee Retirement Plan as Amended and Restated (the "excess parachute payments" under Section 4999 SERP") which the Employee would receive if the Employee's employment continued for three years after the Notice of Exercise assuming for this purpose that all accrued benefits are fully vested and, assuming that the Employee's compensation in each of the Codethree years is the Employee's highest Base Salary during the three year period immediately preceding the date of the Notice of Exercise and the Highest Annual Bonus, over (B) the actuarial equivalent of the Employee's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP as of the date of the Notice of Exercise; and (d) If the Employee gives the Notice of Exercise, for three (3) years after the date of the Notice of Exercise, or such longer period as may be provided by the term of the appropriate plan, program, practice or policy the Company shall continue to provide welfare benefits including, without limitation, medical, prescription, dental, disability, employee life, group life, accidental death and travel accident insurance plans and programs) to the Employee and/or the Employee's eligible dependents at least equal to those provided to the Employee at any time during the 120 day period immediately preceding the Change in Control or, if more favorable to the Employee, those provided generally at any time after the Change in Control to other peer executives of the Company and its affiliated companies; provided, however, that if the total Employee becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of all "parachute payments" eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Employee for retiree benefits pursuant to or for such plans, practices, programs and policies, the Employee shall be considered to have remained employed until three (3) years after the Notice of Exercise and to have retired on the last day of such period. In addition to, and not in limitation of, the benefits provided by the foregoing, after termination of the Employee's benefitemployment with the Company, after reduction the Company shall at least provide medical and dental insurance coverage for all federal, state and local taxes (including the tax described in Section 4999 of the Code, if applicable) with respect to such payments (the "Total After-Tax Payments"), would be increased by the limitation or elimination of any payment under this Agreement or any "parachute payments" under other agreements or arrangements between the Employee and his spouse for their lifetimes that is comparable to the Employer or FSP or any successor entitymedical and dental insurance coverage provided by the Company to its principal executive officers as of immediately prior to the Notice of Exercise, then and the amount payable under this Agreement Company shall be entitled to credits for coverage to the Employee and his spouse provided by Medicare. (or e) If the "parachute payment" under such other agreement or arrangement as Employee gives the Employer and Notice of Exercise, the Employee shall mutually determine) shall be reduced entitled to the extent, provision of the benefits and only to the extent, necessary to maximize the Total After-services set forth in Section 4(D)(viii) and 4(H).