Common use of Termination Upon a Change of Control Clause in Contracts

Termination Upon a Change of Control. (a) In the event a Change of Control (as defined below) occurs, and within 24 months after such Change of Control: (i) your employment with the Company is terminated by you pursuant to a Termination for Good Reason (as defined below); or (ii) your employment with the Company is terminated by the Company for any reason other than death, disability or for Cause pursuant to Sections 9(a), (b) or (c); or (iii) this Agreement is not renewed due to a Termination Notice given by the Company, as provided in Section 1(a), (the events under clauses (i), (ii) and (iii) herein collectively called a "Change of Control Termination"), you shall be entitled to receive the payments and benefits set forth in Section 10(e) and (f) below, which payments and benefits shall be in substitution for, and not in addition to, the payments and benefits otherwise payable under Section 2(a) or 2(b) of this Agreement in the event of termination. Your right to receive such payments and benefits, other than the Accrued Obligations, shall be in consideration of your agreements under this Agreement, including but not limited to your agreement not to compete with the Company for two years after a Change of Control pursuant to Section 6, and shall be conditioned upon your execution of a Release. Such Release shall be substantially in the form of Exhibit A but may be modified by the Company as it deems appropriate to reflect changes in law or circumstances arising after the date of this Agreement; provided that no such modification shall increase any of your obligations to the Company over those contemplated by this Agreement, including Exhibit A hereto. (b) For purposes of the Agreement, a "Change of Control" shall be deemed to have occurred if: (i) any person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and as used in Sections 13(d) and 14(d) thereof)), excluding the Company, any subsidiary and any employee benefit plan sponsored or maintained by the Company or any subsidiary (including any trustee of any such plan acting in his capacity as trustee), but including a "group" as defined in Section 13(d)(3) of the Exchange Act, becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of shares of the Company having at least 30% of the total number of votes that may be cast for the election of directors of the Company; (ii) the shareholders of the Company shall approve any merger or other business combination of the Company, sale of all or substantially all of the Company's assets or combination of the foregoing transactions (a "Transaction"), other than a Transaction involving only the Company and one or more of its subsidiaries, or a Transaction immediately following which the shareholders of the Company immediately prior to the Transaction continue to have a majority of the voting power in the resulting entity (excluding for this purpose any shareholder of the Company owning directly or indirectly more than 10% of the shares of the other company involved in the Transaction) and no person is the beneficial owner of at least 30% of the shares of the resulting entity as contemplated by Section 10(b)(i) above; or (iii) within any 24-month period beginning on or after the date hereof, the persons who were directors of the Company immediately before the beginning of such period (the "Incumbent Directors") shall cease (for any reason other than death) to constitute at least a majority of the Board of Directors of the Company or the board of directors of any successor to the Company, provided that any director who was not a director as of the date hereof shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of or with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either actually or by prior operation of this Section 10(b)(iii), unless such election, recommendation or approval was the result of an actual or threatened election contest of the type contemplated by Regulation 14a-11 under the Exchange Act or any successor provision. Notwithstanding the foregoing, no Change of Control of the Company shall be deemed to have occurred for purposes of this Agreement by reason of any actions or events in which you participate in a capacity other than in your capacity as an executive or director of the Company.

Termination Upon a Change of Control. (a) In the event a Change of Control (as defined below) occurs, and within 24 months after such Change of Control: (i) your employment with the Company is terminated by you pursuant to a Termination for Good Reason (as defined below); or (ii) your employment with the Company is terminated by the Company for any reason other than death, disability or for Cause pursuant to Sections 9(a), (b) or (c); or (iii) this Agreement is not renewed due to a Termination Notice given by the Company, as provided in Section 1(a1(b), (the events under clauses (i), (ii) and (iii) herein collectively called a "Change of Control Termination"), you shall be entitled to receive the payments and benefits set forth in Section 10(e) and (f) below, which payments and benefits shall be in substitution for, and not in addition to, the payments and benefits otherwise payable under Section 2(a) or 2(b) of this Agreement in the event of termination. Your right to receive such payments and benefits, other than the Accrued Obligations, shall be in consideration of your agreements under this Agreement, including but not limited to your agreement not to compete with the Company for two years after a Change of Control pursuant to Section 6, and shall be conditioned upon your execution of a Release. Such Release shall be substantially in the form of Exhibit A but may be modified by the Company as it deems appropriate to reflect changes in law or circumstances arising after the date of this Agreement; provided that no such modification shall increase any of your obligations to the Company over those contemplated by this Agreement, including Exhibit A hereto. (b) For purposes of the Agreement, a "Change of Control" shall be deemed to have occurred if: (i) any person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and as used in Sections 13(d) and 14(d) thereof)), excluding the Company, any subsidiary and any employee benefit plan sponsored or maintained by the Company or any subsidiary (including any trustee of any such plan acting in his capacity as trustee), but including a "group" as defined in Section 13(d)(3) of the Exchange Act, becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of shares of the Company having at least 30% of the total number of votes that may be cast for the election of directors of the Company; (ii) the shareholders of the Company shall approve any merger or other business combination of the Company, sale of all or substantially all of the Company's assets or combination of the foregoing transactions (a "Transaction"), other than a Transaction involving only the Company and one or more of its subsidiaries, or a Transaction immediately following which the shareholders of the Company immediately prior to the Transaction continue to have a majority of the voting power in the resulting entity (excluding for this purpose any shareholder of the Company owning directly or indirectly more than 10% of the shares of the other company involved in the Transaction) and no person is the beneficial owner of at least 30% of the shares of the resulting entity as contemplated by Section 10(b)(i) above; or (iii) within any 24-month period beginning on or after the date hereof, the persons who were directors of the Company immediately before the beginning of such period (the "Incumbent Directors") shall cease (for any reason other than death) to constitute at least a majority of the Board of Directors of the Company or the board of directors of any successor to the Company, provided that any director who was not a director as of the date hereof shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of or with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either actually or by prior operation of this Section 10(b)(iii), unless such election, recommendation or approval was the result of an actual or threatened election contest of the type contemplated by Regulation 14a-11 under the Exchange Act or any successor provision. Notwithstanding the foregoing, no Change of Control of the Company shall be deemed to have occurred for purposes of this Agreement by reason of any actions or events in which you participate in a capacity other than in your capacity as an executive or director of the Company.

Termination Upon a Change of Control. (a) In the event The Term of Employment shall be terminated immediately upon a Change of Control (as defined below) occurs, and within 24 months after such Change of Control: (i) your ). In the event the Executive’s employment with the Company is terminated by you pursuant to a Termination for Good Reason (as defined below); or (ii) your employment with the Company is terminated by the Company for any reason other than death, disability or for Cause pursuant to Sections 9(a), (b) or (c); or (iii) this Agreement is not renewed due to a Termination Notice given by the Company, as provided in Section 1(a), (the events under clauses (i), (ii) and (iii) herein collectively called a "Change of Control Termination")Control, you the Executive shall be entitled to receive and his sole remedies under this Agreement shall be: (i) Base Salary through the payments and benefits set forth in Section 10(e) and (f) belowdate of the Change of Control, which payments and benefits shall be paid in substitution for, and not a single lump sum 15 days following the date of the Executive’s termination of employment; (ii) pro rata Annual Incentive Award at 75% of Base Salary for the year in addition to, which the payments and benefits otherwise payable under Section 2(a) or 2(b) of this Agreement in the event of termination. Your right to receive such payments and benefits, other than the Accrued Obligations, shall be in consideration of your agreements under this Agreement, including but not limited to your agreement not to compete with the Company for two years after a Change of Control pursuant to Section 6occurs, and which shall be conditioned upon your execution payable in a lump sum on the first day following the six month anniversary of a Release. Such Release shall be substantially in the form Executive’s termination of Exhibit A but may be modified by the Company as it deems appropriate to reflect changes in law employment; (iii) elimination of all restrictions on any Restricted Share Grants or circumstances arising after deferred stock awards outstanding on the date of this Agreement; provided that no such modification shall increase any of your obligations to the Company over those contemplated by this Agreement, including Exhibit A hereto. (b) For purposes of the Agreement, a "Change of Control" ; (iv) immediate vesting of all outstanding stock options and the right to exercise such stock options as provided in any stock option award agreement to which the Executive is a party; (v) the balance of any Annual Incentive Awards earned as of December 31 of the prior year (but not yet paid), which shall be paid in a single lump sum and in accordance with the terms of such awards; (vi) settlement of all deferred compensation arrangements in accordance with the Executive’s duly executed Deferral Election Forms; and (vii) other or additional benefits then due or earned, payable in accordance with applicable plans and programs of the Company. A “Change in Control” shall be deemed to have occurred if: : (i) any person Person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and as used in Sections 13(d) and 14(d) thereof)), excluding other than the Company, any subsidiary and trustee or other fiduciary holding securities under any employee benefit plan sponsored of the Company, or maintained any company owned, directly or indirectly, by the stockholders of the Company or any subsidiary immediately prior to the occurrence with respect to which the evaluation is being made in substantially the same proportions as their ownership of the common stock of the Company) becomes the Beneficial Owner (including any trustee except that a Person shall be deemed to be the Beneficial Owner of all shares that any such plan acting in his capacity as trustee)Person has the right to acquire pursuant to any agreement or arrangement or upon exercise of conversion rights, but including a "group" as defined in Section 13(d)(3) of warrants or options or otherwise, without regard to the Exchange Act, becomes the beneficial owner (as defined sixty day period referred to in Rule 13d-3 under the Exchange Act) ), directly or indirectly, of shares securities of the Company having at least 30or any Significant Subsidiary (as defined below), representing 50% or more of the total number of votes that may be cast for the election of directors combined voting power of the Company; ’s or such subsidiary’s then outstanding securities; (ii) during any period of two consecutive years, individuals who at the shareholders beginning of such period constitute the Company shall approve Board, and any merger or other business combination of the Company, sale of all or substantially all of the Company's assets or combination of the foregoing transactions new director (a "Transaction"), other than a Transaction involving only director designated by a person who has entered into an agreement with the Company and one or more of its subsidiariesto effect a transaction described in clause (i), (iii), or (iv) of this paragraph) whose election by the Board or nomination for election by the Company’s stockholders was approved by a Transaction immediately following which the shareholders vote of at least two-thirds of the Company immediately prior to directors then still in office who either were directors at the Transaction continue to have a majority beginning of the voting power in the resulting entity (two-year period or whose election or nomination for election was previously so approved but excluding for this purpose any shareholder such new director whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Company owning directly Exchange Act) or indirectly more other actual or threatened solicitation of proxies or consents by or on behalf of an individual, corporation, partnership, group, associate or other entity or Person other than 10% of the shares of the other company involved in the Transaction) and no person is the beneficial owner of at least 30% of the shares of the resulting entity as contemplated by Section 10(b)(i) above; or (iii) within any 24-month period beginning on or after the date hereofBoard, the persons who were directors of the Company immediately before the beginning of such period (the "Incumbent Directors") shall cease (for any reason other than death) to constitute at least a majority of the Board Board; (iii) the consummation of Directors a merger or consolidation of the Company or the board of directors of any successor to the Company, provided that any director who was not a director as subsidiary owning directly or indirectly all or substantially all of the date hereof shall consolidated assets of the Company (a “Significant Subsidiary”) with any other entity, other than a merger or consolidation which would result in the voting securities of the Company or a Significant Subsidiary outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving or resulting entity) more than 50% of the combined voting power of the surviving or resulting entity outstanding immediately after such merger or consolidation; (iv) the consummation of a plan or agreement for the sale or disposition of all or substantially all of the consolidated assets of the Company (other than such a sale or disposition immediately after which such assets will be deemed owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the common stock of the Company immediately prior to be an Incumbent Director if such director was elected to sale or disposition) in which case the Board by, or on shall determine the recommendation of or with the approval of, at least two-thirds effective date of the directors who then qualified as Incumbent Directors either actually Change in Control resulting therefrom; or (v) any other event occurs which the Board determines, in its discretion, would materially alter the structure of the Company or by prior operation its ownership. For purposes of this Section 10(b)(iii), unless definition: (A) The term “Beneficial Owner” shall have the meaning ascribed to such election, recommendation or approval was the result of an actual or threatened election contest of the type contemplated by Regulation 14a-11 term in Rule 13d-3 under the Exchange Act or (including any successor provision. Notwithstanding the foregoing, no Change of Control of the Company shall be deemed to have occurred for purposes of this Agreement by reason of any actions or events in which you participate in a capacity other than in your capacity as an executive or director of the Companysuch Rule).

Termination Upon a Change of Control. (a) In the event that during the period beginning 3 months before the occurrence of a “Change in Control” and ending 1 year after a Change of in Control (as defined below) occurs, and within 24 months after such Change of ControlEmployee’s employment is terminated: (i) your employment with the Company is terminated by you pursuant to a Termination Employee for Good Reason (as defined below); or Reason, (ii) your employment with the Company is terminated by the Company for any reason other than death(or its successor or acquirer) without Cause, disability or for Cause pursuant to Sections 9(a), (b) or (c); or (iii) by expiration of this Agreement is not renewed due to a Termination Notice given by Employee refusing to renew this Agreement for Good Reason, the CompanyCompany shall pay Employee (i) the Base Salary and any other compensation earned up to the date of termination, including any pro-rata bonus, as provided in Section 1(a), (the events under clauses (i), well as any unreimbursed expenses and accrued but unused vacation days and (ii) for the Salary Continuation Period, the Base Salary and (iii) herein collectively called a "Change the continuation of Control Termination")Company-sponsored medical and health benefits previously made available to Employee, you but only to the extent permitted by such policies or plans, or as otherwise required by law. In addition to the benefits provided for above, any and all of the Employee’s outstanding options granted pursuant to the equity award plan as well as any other equity award to Employee shall be entitled to receive the payments become immediately vested and benefits set forth in Section 10(e) and (f) below, which payments and benefits shall be in substitution forexercisable, and not in addition toany provision of such options which provides for termination of the option upon, the payments and benefits otherwise payable under Section 2(a) or 2(b) within a stated time after termination of this Agreement in the event of termination. Your right to receive such payments and benefits, other than the Accrued Obligationsemployment, shall be in consideration become void and such option shall become a nonqualified stock option for tax purposes (to the extent it was not already a nonqualified option). All of your agreements under this Agreement, including but not limited to your agreement not to compete with these options shall remain exercisable for a period of 1 year from the Company for two years after a Change of Control pursuant to Section 6termination date, and shall be conditioned upon your execution exercisable on a cashless basis for a period of a Release. Such Release shall be substantially in 90 days following the form of Exhibit A but may be modified by effective termination date (or the Company as it deems appropriate to reflect changes in law or circumstances arising after the effective date of this Agreement; provided that no such modification shall increase any Change of your obligations Control event if Employee’s employment was terminated at any time during the three month period prior to the Company over those contemplated by this Agreement, including Exhibit A hereto. (b) For purposes of the Agreement, a "Change of Control" shall be deemed to have occurred if: (i) any person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and as used in Sections 13(d) and 14(d) thereof)), excluding the Company, any subsidiary and any employee benefit plan sponsored or maintained by the Company or any subsidiary (including any trustee of any such plan acting in his capacity as trustee), but including a "group" as defined in Section 13(d)(3) of the Exchange Act, becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of shares of the Company having at least 30% of the total number of votes that may be cast for the election of directors of the Company; (ii) the shareholders of the Company shall approve any merger or other business combination of the Company, sale of all or substantially all of the Company's assets or combination of the foregoing transactions (a "Transaction"), other than a Transaction involving only the Company and one or more of its subsidiaries, or a Transaction immediately following which the shareholders of the Company immediately prior to the Transaction continue to have a majority of the voting power in the resulting entity (excluding for this purpose any shareholder of the Company owning directly or indirectly more than 10% of the shares of the other company involved in the Transaction) and no person is the beneficial owner of at least 30% of the shares of the resulting entity as contemplated by Section 10(b)(i) above; or (iii) within any 24-month period beginning on or after the date hereof, the persons who were directors of the Company immediately before the beginning of such period (the "Incumbent Directors") shall cease (for any reason other than death) to constitute at least a majority of the Board of Directors of the Company or the board of directors of any successor to the Company, provided that any director who was not a director as of the date hereof shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of or with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either actually or by prior operation of this Section 10(b)(iii), unless such election, recommendation or approval was the result of an actual or threatened election contest of the type contemplated by Regulation 14a-11 under the Exchange Act or any successor provision. Notwithstanding the foregoing, no Change of Control of the Company shall be deemed to have occurred for purposes of this Agreement by reason of any actions or events in which you participate in a capacity other than in your capacity as an executive or director of the Company.

Termination Upon a Change of Control. (a) In If, during the event period commencing on the 120th day immediately prior to a Change of Control (as defined below) occurs, and within 24 months ending on the 90th day immediately after such a Change of Control: (i) your , the Executive’s employment with the Company is terminated by you pursuant to a Termination for Good Reason (as defined below); or (ii) your employment with the Company is shall have been terminated by the Company for any reason (other than for death, disability Total Disability or Cause) or by the Executive for Cause Good Reason, the Executive shall receive, in cash, within 10 days of the date of such termination or resignation of employment, an amount equal to three (3) times the total W-2 compensation received by the Executive pursuant to Sections 9(a)4.1, (b) or (c); or (iii) this Agreement is not renewed due to a Termination Notice given by the Company4.3, as provided in Section 1(a), (the events under clauses (i), (ii) 4.4 and (iii) herein collectively called a "Change of Control Termination"), you shall be entitled to receive the payments and benefits set forth in Section 10(e) and (f) below, which payments and benefits shall be in substitution for, and not in addition to, the payments and benefits otherwise payable under Section 2(a) or 2(b) 4.7 of this Employment Agreement in the event of termination. Your right to receive such payments and benefits, other than the Accrued Obligations, shall be in consideration of your agreements under this Agreement, including but not limited to your agreement not to compete with the Company for two years after a Change of Control pursuant to Section 6, and shall be conditioned upon your execution of a Release. Such Release shall be substantially in the form of Exhibit A but may be modified by the Company as it deems appropriate to reflect changes in law or circumstances arising after the date of this Agreement; provided that no such modification shall increase any of your obligations to the Company over those contemplated by this Agreement, including Exhibit A hereto. (b) For purposes of the Agreement, a "Change of Control" shall be deemed to have occurred if: (i) any person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and as used in Sections 13(d) and 14(d) thereof)), excluding the Company, any subsidiary and any employee benefit plan sponsored or maintained by the Company or any subsidiary (including any trustee of any such plan acting in his capacity as trustee), but including a "group" as defined in Section 13(d)(3) of the Exchange Act, becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of shares of the Company having at least 30% of the total number of votes that may be cast for the election of directors of the Company; (ii) the shareholders of the Company shall approve any merger or other business combination of the Company, sale of all or substantially all of the Company's assets or combination of the foregoing transactions (a "Transaction"), other than a Transaction involving only the Company and one or more of its subsidiaries, or a Transaction immediately following which the shareholders of the Company immediately prior to the Transaction continue to have a majority of the voting power in the resulting entity (excluding for this purpose any shareholder of the Company owning directly or indirectly more than 10% of the shares of the other company involved in the Transaction) and no person is the beneficial owner of at least 30% of the shares of the resulting entity as contemplated by Section 10(b)(i) above; or (iii) within any 24preceding 12-month period beginning ending on or after the date hereoflast previous December 31, the persons who were directors except that, in lieu of the Company immediately before the beginning of actual Base Salary component received during such period (under Section 4.1 of this Employment Agreement, there shall be substituted the "Incumbent Directors") shall cease (for any reason other than death) annual Base Salary to constitute at least a majority of which the Board of Directors of the Company or the board of directors of any successor to the Company, provided that any director who Executive was not a director entitled as of the date hereof of such termination or resignation of employment. In the event that any payment (or portion thereof) to the Executive under this Section 5.5(a) is determined to constitute an “excess parachute payment” under Sections 280G and 4999 of the Internal Revenue Code of 1986, as amended, the following calculations shall be deemed to be an Incumbent Director if such director was elected made: (i) The after-tax value to the Board by, or on the recommendation of or with the approval of, at least two-thirds Executive of the directors who then qualified as Incumbent Directors either actually or by prior operation of payments under this Section 10(b)(iii), unless such election, recommendation or approval was 5.5(a) without any reduction; and (ii) The after-tax value to the result of an actual or threatened election contest Executive of the type contemplated by Regulation 14a-11 payments under this Section 5.5(a) as reduced to the Exchange Act or maximum amount (the “Maximum Amount”) which may be paid to the Executive without any successor provision. Notwithstanding the foregoing, no Change of Control portion of the Company payments constituting an “excess parachute payment.” If after applying the agreed upon calculations set forth above, it is determined that the after-tax value determined under clause (ii) above is greater than the after-tax value determined under clause (i) above, the payments to the Executive under Section 5.5(a) shall be deemed reduced to have occurred for purposes of this Agreement by reason of any actions or events in which you participate in a capacity other than in your capacity as an executive or director of the CompanyMaximum Amount.”

Termination Upon a Change of Control. If (ax) In the event Company terminates Executive’s employment hereunder without Cause, (y) Executive terminates Executive’s employment for Good Reason or (z) the Company delivers a notice of nonrenewal pursuant to Section 1, in each case during the period that begins ninety (90) days prior to the occurrence of the Change of Control and that ends on the second (2nd) anniversary of the occurrence of a Change of Control (as defined below) occurs, and within 24 months after such Change of Control: (i) your employment with the Company is terminated by you pursuant to a Termination for Good Reason (as defined below); or (ii) your employment with the Company is terminated by the Company for any reason other than death, disability or for Cause pursuant to Sections 9(a), (b) or (c); or (iii) this Agreement is not renewed due to a Termination Notice given by the Company, as provided in Section 1(a), (the events under clauses (i), (ii) and (iii) herein collectively called a "“Change of Control Termination"Period”), you Executive shall be entitled to receive the payments and benefits set forth in provided for by Section 10(e) and (f) below, which payments and benefits shall be in substitution for, and not in addition to, the payments and benefits otherwise payable under Section 2(a) or 2(b) 5(d). For purposes of this Agreement in the event of termination. Your right to receive such payments and benefits, other than the Accrued Obligations, shall be in consideration of your agreements under this Agreement, including but not limited to your agreement not to compete with the Company for two years after a Change of Control pursuant to Section 6, and shall be conditioned upon your execution of a Release. Such Release shall be substantially in the form of Exhibit A but may be modified by the Company as it deems appropriate to reflect changes in law or circumstances arising after the date of this Agreement; provided that no such modification shall increase any of your obligations to the Company over those contemplated by this Agreement, including Exhibit A hereto. (b) For purposes of the Agreement, a "“Change of Control" ” shall be conclusively deemed to have occurred if: if any of the following shall have taken place: (i) the consummation of a transaction or a series of related transactions pursuant to which any person “person” (as defined such term is used in Section 3(a)(9Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended 1934 (the "“Exchange Act") and as used in Sections 13(d) and 14(d) thereof)”), excluding the Companyother than Executive, any subsidiary and any employee benefit plan sponsored Executive’s designee(s) or maintained by the Company or any subsidiary “affiliate(s)” (including any trustee of any such plan acting in his capacity as trustee), but including a "group" as defined in Section 13(d)(3) of Rule 12b-2 under the Exchange Act), or a Permitted Holder, is or becomes the “beneficial owner owner” (as defined in Rule 13d-3 under the Exchange Act) ), directly or indirectly, of shares securities of the Company having at least 30% representing forty percent (40%) or more of the total number of votes that may be cast for the election of directors combined voting power of the Company’s then outstanding securities; or (ii) the shareholders stockholders of the Company shall approve any a merger or other business combination consolidation of the CompanyCompany with any other entity other than a Permitted Holder, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than eighty percent (80%) of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; or (iii) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale of or disposition by the Company of, or the Company sells or disposes of, all or substantially all of the Company's ’s assets or combination of other than to a Permitted Holder; (iv) subsequent to the foregoing transactions Plan Covenant Termination Date (a "Transaction"as defined in the Plan), other than a Transaction involving only the Company and one or more of its subsidiaries, or a Transaction immediately following which the shareholders of the Company immediately prior individuals cease for any reason to the Transaction continue to have constitute a majority of the voting power in number of directors then serving on the resulting entity (excluding Board: individuals who, on the day immediately preceding the Effective Date, constitute the Board and any new director whose appointment or election by the Board or nomination for this purpose any shareholder election by the Company’s stockholders was approved or recommended by a vote of the Company owning directly or indirectly more than 10% of the shares of the other company involved in the Transaction) and no person is the beneficial owner of at least 30% of the shares of the resulting entity as contemplated by Section 10(b)(i) above; or (iii) within any 24-month period beginning on or after the date hereof, the persons who were directors of the Company immediately before the beginning of such period (the "Incumbent Directors") shall cease (for any reason other than death) to constitute at least a majority of the Board of Directors of directors then still in office who either were directors on the Company day immediately preceding the Effective Date or the board of directors of any successor to the Companywhose appointment, provided that election or nomination for election was previously so approved or recommended, but excluding (i) any director who was not a director as whose initial assumption of the date hereof shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of or office is in connection with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either actually or by prior operation of this Section 10(b)(iii), unless such election, recommendation or approval was the result of an actual or threatened election contest (including, but not limited to, a consent or proxy solicitation, relating to the election of the type contemplated by Regulation 14a-11 under the Exchange Act or any successor provision. Notwithstanding the foregoing, no Change of Control directors of the Company shall be deemed to have occurred for purposes by or on behalf of this Agreement by reason of any actions or events in which you participate in a capacity person (as defined above) other than the Board) and (ii) any director whose initial assumption of office is in your capacity connection with the Plan; (v) the PharmAthene Allowed Claim (as an executive or director such term is defined in the Plan) is treated under Section 4.3(b)(i)(C) of the CompanyPlan; or (vi) the Board is reconstituted as provided in Section 6.6(d) of the Plan.

Termination Upon a Change of Control. (a) In the event of a Change in Control (as hereinafter defined), Officer shall have the right to request at any time during the 30 day period following the consummation of such Change of Control that the surviving corporation or organization in such Change of Control (the “Surviving Entity”) acknowledge and confirm in writing to Officer that the Surviving Entity has assumed all of Employer’s rights and obligations hereunder in connection with such Change of Control (the “Employment Confirmation”). If the Surviving Entity in a Change of Control (as defined below) occursshall fail to provide Officer with an Employment Confirmation confirming continued employment within 30 days of Officer’s written request for same, then Officer shall be entitled to terminate his employment hereunder during the period commencing 31 days after Officer’s written request for an Employment Confirmation and within 24 months terminating 61 days after such Change Officer’s written request for an Employment Confirmation. In the event Officer terminates his employment hereunder pursuant to the immediately preceding sentence of Controlthis Section 9(f), then Officer shall be entitled to: (i) your employment with those payments and rights provided under Section 9(d) as though the Company is terminated termination has been initiated by you Employer without cause pursuant to a Termination for Good Reason (as defined belowSection 9(c); or and (ii) your employment with a Gross-Up Payment (as hereinafter defined), to the Company is terminated extent provided by the Company for any reason other than death, disability or for Cause pursuant to Sections 9(a), (b) or (c); or (iii) this Agreement is not renewed due to a Termination Notice given by the Company, as provided in Section 1(a), (the events under clauses (i), (ii) and (iii) herein collectively called a "Change of Control Termination"), you shall be entitled to receive the payments and benefits set forth in Section 10(e) and (f) below, which payments and benefits shall be in substitution for, and not in addition to, the payments and benefits otherwise payable under Section 2(a) or 2(b) second paragraph of this Agreement in the event of terminationSection 9(f). Your right to receive such payments and benefitsFor purposes hereof, other than the Accrued Obligations, shall be in consideration of your agreements under this Agreement, including but not limited to your agreement not to compete with the Company for two years after a Change of Control pursuant to Section 6, and shall be conditioned deemed to have taken place upon your execution the occurrence of a Release. Such Release shall be substantially in any of the form of Exhibit A but may be modified by following events: (a) the Company as it deems appropriate to reflect changes in law or circumstances arising acquisition after the date of this Agreement; provided that no such modification shall increase any , in one or more transactions, of your obligations to beneficial ownership (within the Company over those contemplated by this Agreement, including Exhibit A hereto. (bmeaning of Rule 13d-3(a)(1) For purposes of the Agreement, a "Change of Control" shall be deemed to have occurred if: (i) any person (as defined in Section 3(a)(9) of under the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”)) and as used in Sections 13(dby any person or entity (other than Officer) and 14(dor group of persons or entities (other than Officer) thereof)), excluding who constitute a group (within the Company, any subsidiary and any employee benefit plan sponsored or maintained by the Company or any subsidiary (including any trustee meaning of any such plan acting in his capacity as trustee), but including a "group" as defined in Section 13(d)(3) of the Exchange Act, becomes ) of any securities of Employer such that as a result of such acquisition such person or entity or group beneficially owns (within the beneficial owner (as defined in meaning of Rule 13d-3 13d-3(a)(1) under the Exchange Act) more than 50% of shares Employer’s then outstanding voting securities entitled to vote on a regular basis for a majority of the Company having at least 30% of the total number of votes that may be cast for the election of directors of the CompanyBoard; or (iib) the shareholders of the Company shall approve any merger or other business combination of the Company, sale of all or substantially all of the Company's assets of Employer (including, without limitation, by way of merger, consolidation, lease or combination transfer) in a transaction where Employer or the holders of the foregoing transactions common stock of Employer do not receive (a "Transaction"), other than a Transaction involving only the Company and one or more of its subsidiaries, or a Transaction immediately following which the shareholders of the Company immediately prior to the Transaction continue to have i) voting securities representing a majority of the voting power in the resulting entity (excluding entitled to vote on a regular basis for this purpose any shareholder of the Company owning directly or indirectly more than 10% of the shares of the other company involved in the Transaction) and no person is the beneficial owner of at least 30% of the shares of the resulting entity as contemplated by Section 10(b)(i) above; or (iii) within any 24-month period beginning on or after the date hereof, the persons who were directors of the Company immediately before the beginning of such period (the "Incumbent Directors") shall cease (for any reason other than death) to constitute at least a majority of the Board of Directors of the Company acquiring entity or of an affiliate that controls the acquiring entity or (ii) securities representing a majority of the equity interests in the acquiring entity or of an affiliate that controls the acquiring entity. A Gross-Up Payment (as hereinafter defined) shall be payable upon termination of employment pursuant to this Section 9(f) on and subject to the following terms and conditions: (i) If Employer determines that any payment, option vesting or other benefit (a “Termination Payment”) to Officer under this Section 9(f) is or will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or an Excise Tax is properly assessed against Officer based on a Termination Payment, Employer shall pay to Officer, at the time the applicable Termination Payment is made or the board of directors Excise Tax is assessed, an additional amount (the “Gross-Up Payment”) such that the net amount retained by Officer, after the payment in full of any successor Excise Tax on such Termination Payment and any federal, state and local income tax and Excise Tax on the Gross-Up Payment and any related interest and penalties, shall be not less than the amount or value of such Termination Payment. For purposes of determining whether any such Termination Payment will be subject to the CompanyExcise Tax, provided that Employer shall take into account any director who was not other payments, option vesting or benefits received or to be received by Officer in connection with an event giving rise to a director as Termination Payment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with Employer, with any person whose actions result in the Change of Control or with any person affiliated with Employer or such person) in accordance with Section 280G of the date hereof Code and any related regulations (whether temporary, proposed or final) and Internal Revenue Service Rulings and applicable case law. (ii) For purposes of determining the amount of any Gross-Up Payment, Officer shall be deemed to be an Incumbent Director if such director was elected to pay federal income taxes at the Board byhighest marginal rate of federal income taxation in the calendar year in which the applicable Termination Payment or Gross-Up Payment is made, or on the recommendation of or with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either actually or by prior operation of this Section 10(b)(iii), unless such election, recommendation or approval was the result of an actual or threatened election contest of the type contemplated by Regulation 14a-11 under the Exchange Act or any successor provision. Notwithstanding the foregoing, no Change of Control of the Company and shall be deemed to have occurred for purposes pay state and local income taxes at the highest marginal rates of this Agreement taxation in the state and locality of Officer’s residence on the date the applicable Termination Payment or Gross-Up Payment is made, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes. (iii) If the Excise Tax or income tax payable with respect to a Gross-Up Payment as finally determined exceeds the amount taken into account or paid to Officer at the time the applicable Termination Payment or Gross-Up Payment is made (including by reason of any actions payment the existence or events in amount of which you participate in a capacity other than in your capacity as an executive or director cannot be determined at the time of the Companyapplicable Gross-Up Payment), Employer shall make an additional Gross-Up Payment in respect of such excess at the time that the amount of such excess is finally determined. (iv) If a Gross-Up Payment is made as a result of the assessment of an Excise Tax, Officer at Employer’s request and expense shall take such action as reasonable and appropriate to challenge such assessment or recover (on Employer’s behalf) such Excise Tax.

Termination Upon a Change of Control. (a) In the event a Change of Control (as defined below) occurs, and within 24 months after such Change of Control: (i) your employment with the Company is terminated by you pursuant to a Termination for Good Reason (as defined below); or (ii) your employment with the Company is terminated by the Company for any reason other than death, disability or for Cause pursuant to Sections 9(a), (b) or (c); or (iii) this Agreement is not renewed due to a Termination Notice given by the Company, as provided in Section 1(a), (the events under clauses (i), (ii) and (iii) herein collectively called a "Change of Control Termination"), you shall be entitled to receive the payments and benefits set forth in Section 10(e) and (f) below, which payments and benefits shall be in substitution for, and not in addition to, the payments and benefits otherwise payable under Section 2(a) or 2(b) of this Agreement in the event of termination. Your right to receive such payments and benefits, other than the Accrued Obligations, shall be in consideration of your agreements under this Agreement, including but not limited to your agreement not to compete with the Company for two years after a Change of Control pursuant to Section 6, and shall be conditioned upon your execution of a Release. Such Release shall be substantially in the form of Exhibit A but may be modified by the Company as it deems appropriate to reflect changes in law or circumstances arising after the date of this Agreement; provided that no such modification shall increase any of your obligations to the Company over those contemplated by this Agreement, including Exhibit A hereto. (b) For purposes of the Agreement, a "Change of Control" shall be deemed to have occurred if: (i) any person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and as used in Sections 13(d) and 14(d) thereof)), excluding the Company, any subsidiary and any employee benefit plan sponsored or maintained by the Company or any subsidiary (including any trustee of any such plan acting in his capacity as trustee), but including a "group" as defined in Section 13(d)(3) of the Exchange Act, becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of shares of the Company having at least 30% of the total number of votes that may be cast for the election of directors of the Company; (ii) the shareholders of the Company shall approve any merger or other business combination of the Company, sale of all or substantially all of the Company's assets or combination of the foregoing transactions (a "Transaction"), other than a Transaction involving only the Company and one or more of its subsidiaries, or a Transaction immediately following which the shareholders of the Company immediately prior to the Transaction continue to have a majority of the voting power in the resulting entity (excluding for this purpose any shareholder of the Company owning directly or indirectly more than 10% of the shares of the other company involved in the Transaction) and no person is the beneficial owner of at least 30% of the shares of the resulting entity as contemplated by Section 10(b)(i) above; or (iii) within any 24-month period beginning on or after the date hereof, the persons who were directors of the Company immediately before the beginning of such period (the "Incumbent Directors") shall cease (for any reason other than death) to constitute at least a majority of the Board of Directors of the Company or the board of directors of any successor to the Company, provided that any director who was not a director as of the date hereof shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of or with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either actually or by prior operation of this Section 10(b)(iii), unless such election, recommendation or approval was the result of an actual or threatened election contest of the type contemplated by Regulation 14a-11 under the Exchange Act or any successor provision. Notwithstanding the foregoing, no Change of Control of the Company shall be deemed to have occurred for purposes of this Agreement by reason of any actions or events in which you participate in a capacity other than in your capacity as an executive or director of the Company.as

Termination Upon a Change of Control. (a) In the event a Change Other than termination of Control (as defined below) occursemployment for Cause or termination of employment due to Employee’s voluntary resignation, and within 24 months after such Change of Control: (i) your if Employee’s employment with the Company is terminated by you pursuant to a Termination for Good Reason (as defined below); or (ii) your employment with the Company is terminated by the Company for any reason other than death, disability (whether through actual or for Cause pursuant to Sections 9(a), Constructive Termination or as a result of death or Disability) (ba) or (c); or (iii) this Agreement is not renewed due to a Termination Notice given by the Company, as provided in Section 1(a), (the events under clauses (i), (ii) and (iii) herein collectively called a "Change of Control Termination"), you shall be entitled to receive the payments and benefits set forth in Section 10(e) and (f) below, which payments and benefits shall be in substitution for, and not in addition to, the payments and benefits otherwise payable under Section 2(a) or 2(b) of this Agreement in the event of termination. Your right to receive such payments and benefits, other than the Accrued Obligations, shall be in consideration of your agreements under this Agreement, including but not limited to your agreement not to compete with the Company for two years within 12 months after a Change of Control, or (b) prior to the date on which the Change of Control pursuant occurs (provided such Change of Control actually occurs and provided Employee is able to Section 6, and shall be conditioned upon your execution reasonably demonstrate that such termination was at the request of the acquirer or otherwise arose in connection with or anticipation of a Release. Such Release Change of Control), then Employee shall be substantially in continue to receive his Annual Salary for the form lesser of Exhibit A but may be modified by the Company as it deems appropriate to reflect changes in law or circumstances arising after (y) 12 months following the date of this Agreement; provided that no such modification shall increase any termination, or (z) whatever length of your obligations time is remaining (starting from the date of termination) until the expiration of 12 months from the date of the Change of Control. The Annual Salary payable to Employee pursuant to the Company over those contemplated previous sentence shall be payable at the same time and in the same manner as it was paid immediately prior to Employee’s termination and any such payments shall be in accordance with any requirements to withhold federal, state or local taxes; provided, however, that if the Employee is, on the date of termination, a specified employee (within the meaning of Internal Revenue Code Section 409A), then, notwithstanding any other provision herein to the contrary, all payments under this Agreement shall, to the extent required by such Section 409A, be delayed for the period and in the manner required by such Section 409A. Notwithstanding any other provision of this Agreement, including Exhibit A hereto. (b) For purposes if the payments to or for the benefit of the Agreement, a "Change of Control" shall be deemed to have occurred if: (i) any person Employee under this Section 3 equals or exceeds three times the “base amount” (as defined in Internal Revenue Code Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and as used in Sections 13(d) and 14(d) thereof)280G), excluding the Company, any subsidiary and any employee benefit plan sponsored or maintained by such that a deduction would not be allowed to the Company under that Section for all or any subsidiary (including any trustee part of any such plan acting in his capacity as trustee)payments, but including a "group" as defined in or if the payments made hereunder would cause the Employee to be liable for tax under Internal Revenue Code Section 13(d)(3) of 4999, then the Exchange Act, becomes payments under this Section 3 shall be reduced so that the beneficial owner aggregate “present value” (as defined in Rule 13d-3 under the Exchange ActInternal Revenue Code Section 280G(d)(4)) of shares such payments shall total $100.00 less than three times the base amount. The purpose of such reduction is to ensure that the Company having at least 30% of the total number of votes that may be cast for the election of directors of the Company; (ii) the shareholders of the Company shall approve any merger or other business combination of the Company, sale of all or substantially all of the Company's assets or combination of the foregoing transactions (a "Transaction"), other than a Transaction involving only the Company and one or more of its subsidiaries, or a Transaction immediately following which the shareholders of the Company immediately prior payments to the Transaction continue to have Employee will not constitute a majority parachute payment within the meaning of the voting power in the resulting entity (excluding for this purpose any shareholder of the Company owning directly or indirectly more than 10% of the shares of the other company involved in the TransactionInternal Revenue Code Section 280G(b)(2) and no person is that the beneficial owner of at least 30% of the shares of the resulting entity as contemplated by Employee will not be subject to tax under Internal Revenue Code Section 10(b)(i) above; or (iii) within any 24-month period beginning on or after the date hereof, the persons who were directors of the Company immediately before the beginning of such period (the "Incumbent Directors") shall cease (for any reason other than death) to constitute at least a majority of the Board of Directors of the Company or the board of directors of any successor to the Company, provided that any director who was not a director as of the date hereof shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of or with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either actually or by prior operation of this Section 10(b)(iii), unless such election, recommendation or approval was the result of an actual or threatened election contest of the type contemplated by Regulation 14a-11 under the Exchange Act or any successor provision. Notwithstanding the foregoing, no Change of Control of the Company shall be deemed to have occurred for purposes of this Agreement by reason of any actions or events in which you participate in a capacity other than in your capacity as an executive or director of the Company4999.

Termination Upon a Change of Control. (a) In the event of a Change of Control (as defined below) occurs), and within 24 months after Officer shall have the right to request at any time during the 30 day period following the consummation of such Change of ControlControl that the surviving corporation or organization in such Change of Control (the "Surviving Entity") acknowledge and confirm in writing to Officer that the Surviving Entity has assumed all of Employer's rights and obligations in this Agreement in connection with such Change of Control (the "Employment Confirmation"). If the Surviving Entity in a Change of Control shall fail to provide Officer with an Employment Confirmation within 30 days of Officer's written request for same, then Officer shall be entitled to terminate his employment during the period commencing 31 days after Officer's written request for an Employment Confirmation and terminating 61 days after Officer's written request for an Employment Confirmation. In the event Officer terminates his employment pursuant to the immediately preceding sentence of this Section 9(f), then Officer shall be entitled to: (i) your employment with those payments and rights provided under Section 9(d) as though the Company is terminated termination has been initiated by you Employer without cause pursuant to a Termination for Good Reason (as defined belowSection 9(c); or and (ii) your employment with a Gross-Up Payment to the Company is terminated extent provided by the Company for any reason other than death, disability or for Cause pursuant to Sections 9(asecond paragraph of this Section 9(f), (b) or (c); or (iii) this Agreement is not renewed due to a Termination Notice given by the Company, as provided in Section 1(a), (the events under clauses (i), (ii) and (iii) herein collectively called a ". A Change of Control Termination"), you shall be entitled deemed to receive have taken place upon the payments and benefits set forth in Section 10(eoccurrence of any of the following events: (a) and (f) below, which payments and benefits shall be in substitution for, and not in addition to, the payments and benefits otherwise payable under Section 2(a) or 2(b) of this Agreement in the event of termination. Your right to receive such payments and benefits, other than the Accrued Obligations, shall be in consideration of your agreements under this Agreement, including but not limited to your agreement not to compete with the Company for two years after a Change of Control pursuant to Section 6, and shall be conditioned upon your execution of a Release. Such Release shall be substantially in the form of Exhibit A but may be modified by the Company as it deems appropriate to reflect changes in law or circumstances arising acquisition after the date of this Agreement; provided that no such modification shall increase any , in one or more transactions, of your obligations to beneficial ownership (within the Company over those contemplated by this Agreement, including Exhibit A hereto. (bmeaning of Rule 13d-3(a)(1) For purposes of the Agreement, a "Change of Control" shall be deemed to have occurred if: (i) any person (as defined in Section 3(a)(9) of under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) and as used in Sections 13(dby any person or entity (other than Officer) and 14(dor group of persons or entities (other than Officer) thereof)), excluding who constitute a group (within the Company, any subsidiary and any employee benefit plan sponsored or maintained by the Company or any subsidiary (including any trustee meaning of any such plan acting in his capacity as trustee), but including a "group" as defined in Section 13(d)(3) of the Exchange Act, becomes ) of any securities of Employer such that as a result of such acquisition such person or entity or group beneficially owns (within the beneficial owner (as defined in meaning of Rule 13d-3 13d-3(a)(1) under the Exchange Act) more than 50% of shares Employer's then outstanding voting securities entitled to vote on a regular basis for a majority of the Company having at least 30% of the total number of votes that may be cast for the election of directors of the CompanyBoard; or (iib) the shareholders of the Company shall approve any merger or other business combination of the Company, sale of all or substantially all of the Company's assets of Employer (including, without limitation, by way of merger, consolidation, lease or combination transfer) in a transaction where Employer or the holders of the foregoing transactions common stock of Employer do not receive (a "Transaction"), other than a Transaction involving only the Company and one or more of its subsidiaries, or a Transaction immediately following which the shareholders of the Company immediately prior to the Transaction continue to have i) voting securities representing a majority of the voting power in the resulting entity (excluding entitled to vote on a regular basis for this purpose any shareholder of the Company owning directly or indirectly more than 10% of the shares of the other company involved in the Transaction) and no person is the beneficial owner of at least 30% of the shares of the resulting entity as contemplated by Section 10(b)(i) above; or (iii) within any 24-month period beginning on or after the date hereof, the persons who were directors of the Company immediately before the beginning of such period (the "Incumbent Directors") shall cease (for any reason other than death) to constitute at least a majority of the Board of Directors of the Company acquiring entity or of an affiliate that controls the acquiring entity or (ii) securities representing a majority of the equity interests in the acquiring entity or of an affiliate that controls the acquiring entity. A Gross-Up Payment shall be payable upon termination of employment pursuant to this Section 9(f) on and subject to the following terms and conditions: (i) If Employer determines that any payment, option vesting or other benefit (a "Termination Payment") to Officer under this Section 9(f) is or will be subject to the tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or an Excise Tax is properly assessed against Officer based on a Termination Payment, Employer shall pay to Officer, at the time the applicable Termination Payment is made or the board of directors Excise Tax is assessed, an additional amount (the "Gross-Up Payment") such that the net amount retained by Officer, after the payment in full of any successor Excise Tax on such Termination Payment and any federal, state and local income tax and Excise Tax on the Gross-Up Payment and any related interest and penalties, shall be not less than the amount or value of such Termination Payment. For purposes of determining whether any such Termination Payment will be subject to the CompanyExcise Tax, provided that Employer shall take into account any director who was not other payments, option vesting or benefits received or to be received by Officer in connection with an event giving rise to a director as Termination Payment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with Employer, with any person whose actions result in the Change of Control or with any person affiliated with Employer or such person) in accordance with Section 280G of the date hereof Code and any related regulations (whether temporary, proposed or final) and Internal Revenue Service Rulings and applicable case law. (ii) For purposes of determining the amount of any Gross-Up Payment, Officer shall be deemed to be an Incumbent Director if such director was elected to pay federal income taxes at the Board byhighest marginal rate of federal income taxation in the calendar year in which the applicable Termination Payment or Gross-Up Payment is made, or on the recommendation of or with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either actually or by prior operation of this Section 10(b)(iii), unless such election, recommendation or approval was the result of an actual or threatened election contest of the type contemplated by Regulation 14a-11 under the Exchange Act or any successor provision. Notwithstanding the foregoing, no Change of Control of the Company and shall be deemed to have occurred for purposes pay state and local income taxes at the highest marginal rates of this Agreement taxation in the state and locality of Officer's residence on the date the applicable Termination Payment or Gross-Up Payment is made, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes. (iii) If the Excise Tax or income tax payable with respect to a Gross-Up Payment as finally determined exceeds the amount taken into account or paid to Officer at the time the applicable Termination Payment or Gross-Up Payment is made (including by reason of any actions payment the existence or events in amount of which you participate in a capacity other than in your capacity as an executive or director cannot be determined at the time of the Companyapplicable Gross-Up Payment), Employer shall make an additional Gross-Up Payment in respect of such excess at the time that the amount of such excess is finally determined. (iv) If a Gross-Up Payment is made as a result of the assessment of an Excise Tax, Officer at Employer's request and expense shall take such action as reasonable and appropriate to challenge such assessment or recover (on Employer's behalf) such Excise Tax.

Termination Upon a Change of Control. (a) In the event a Change Other than termination of Control (as defined below) occursemployment for Cause or termination of employment due to Employee’s voluntary resignation, and within 24 months after such Change of Control: (i) your if Employee’s employment with the Company is terminated by you pursuant to a Termination for Good Reason (as defined below); or (ii) your employment with the Company is terminated by the Company for any reason other than death, disability (whether through actual or for Cause pursuant to Sections 9(a), Constructive Termination or as a result of death or Disability) (ba) or (c); or (iii) this Agreement is not renewed due to a Termination Notice given by the Company, as provided in Section 1(a), (the events under clauses (i), (ii) and (iii) herein collectively called a "Change of Control Termination"), you shall be entitled to receive the payments and benefits set forth in Section 10(e) and (f) below, which payments and benefits shall be in substitution for, and not in addition to, the payments and benefits otherwise payable under Section 2(a) or 2(b) of this Agreement in the event of termination. Your right to receive such payments and benefits, other than the Accrued Obligations, shall be in consideration of your agreements under this Agreement, including but not limited to your agreement not to compete with the Company for two years within 12 months after a Change of Control, or (b) prior to the date on which the Change of Control pursuant occurs (provided such Change of Control actually occurs and provided Employee is able to Section 6, and shall be conditioned upon your execution reasonably demonstrate that such termination was at the request of the acquirer or otherwise arose in connection with or anticipation of a Release. Such Release Change of Control), then Employee shall be substantially in continue to receive his or her Annual Salary for the form lesser of Exhibit A but may be modified by the Company as it deems appropriate to reflect changes in law or circumstances arising after (y) 12 months following the date of this Agreement; provided that no such modification shall increase any termination, or (z) whatever length of your obligations time is remaining (starting from the date of termination) until the expiration of 12 months from the date of the Change of Control. The Annual Salary payable to Employee pursuant to the Company over those contemplated previous sentence shall be payable at the same time and in the same manner as it was paid immediately prior to Employee’s termination and any such payments shall be in accordance with any requirements to withhold federal, state or local taxes; provided, however, that if the Employee is, on the date of termination, a specified employee (within the meaning of Internal Revenue Code Section 409A), then, notwithstanding any other provision herein to the contrary, all payments under this Agreement shall, to the extent required by such Section 409A, be delayed for the period and in the manner required by such Section 409A. Notwithstanding any other provision of this Agreement, including Exhibit A hereto. (b) For purposes if the payments to or for the benefit of the Agreement, a "Change of Control" shall be deemed to have occurred if: (i) any person Employee under this Section 3 equals or exceeds three times the “base amount” (as defined in Internal Revenue Code Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and as used in Sections 13(d) and 14(d) thereof)280G), excluding the Company, any subsidiary and any employee benefit plan sponsored or maintained by such that a deduction would not be allowed to the Company under that Section for all or any subsidiary (including any trustee part of any such plan acting in his capacity as trustee)payments, but including a "group" as defined in or if the payments made hereunder would cause the Employee to be liable for tax under Internal Revenue Code Section 13(d)(3) of 4999, then the Exchange Act, becomes payments under this Section 3 shall be reduced so that the beneficial owner aggregate “present value” (as defined in Rule 13d-3 under the Exchange ActInternal Revenue Code Section 280G(d)(4)) of shares such payments shall total $100.00 less than three times the base amount. The purpose of such reduction is to ensure that the Company having at least 30% of the total number of votes that may be cast for the election of directors of the Company; (ii) the shareholders of the Company shall approve any merger or other business combination of the Company, sale of all or substantially all of the Company's assets or combination of the foregoing transactions (a "Transaction"), other than a Transaction involving only the Company and one or more of its subsidiaries, or a Transaction immediately following which the shareholders of the Company immediately prior payments to the Transaction continue to have Employee will not constitute a majority parachute payment within the meaning of the voting power in the resulting entity (excluding for this purpose any shareholder of the Company owning directly or indirectly more than 10% of the shares of the other company involved in the TransactionInternal Revenue Code Section 280G(b)(2) and no person is that the beneficial owner of at least 30% of the shares of the resulting entity as contemplated by Employee will not be subject to tax under Internal Revenue Code Section 10(b)(i) above; or (iii) within any 24-month period beginning on or after the date hereof, the persons who were directors of the Company immediately before the beginning of such period (the "Incumbent Directors") shall cease (for any reason other than death) to constitute at least a majority of the Board of Directors of the Company or the board of directors of any successor to the Company, provided that any director who was not a director as of the date hereof shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of or with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either actually or by prior operation of this Section 10(b)(iii), unless such election, recommendation or approval was the result of an actual or threatened election contest of the type contemplated by Regulation 14a-11 under the Exchange Act or any successor provision. Notwithstanding the foregoing, no Change of Control of the Company shall be deemed to have occurred for purposes of this Agreement by reason of any actions or events in which you participate in a capacity other than in your capacity as an executive or director of the Company4999.

Termination Upon a Change of Control. (a) In the event of a Change in ------------------------------------ Control (as hereinafter defined), Officer shall have the right to request at any time during the 30 day period following the consummation of such Change of Control that the surviving corporation or organization in such Change of Control (the "Surviving Entity") acknowledge and confirm in writing to Officer that the Surviving Entity has assumed all of Employer's rights and obligations hereunder in connection with such Change of Control (the "Employment Confirmation"). If the Surviving Entity in a Change of Control (as defined below) occursshall fail to provide Officer with an Employment Confirmation confirming continued employment within 30 days of Officer's written request for same, then Officer shall be entitled to terminate his employment hereunder during the period commencing 31 days after Officer's written request for an Employment Confirmation and within 24 months terminating 61 days after such Change Officer's written request for an Employment Confirmation. In the event Officer terminates his employment hereunder pursuant to the immediately preceding sentence of Controlthis Section 9(f), then Officer shall be entitled to: (i) your employment with those payments and rights provided under Section 9(d) as though the Company is terminated termination has been initiated by you Employer without cause pursuant to a Termination for Good Reason (as defined belowSection 9(c); or and (ii) your employment with a Gross-Up Payment (as hereinafter defined), to the Company is terminated extent provided by the Company for any reason other than death, disability or for Cause pursuant to Sections 9(a), (b) or (c); or (iii) this Agreement is not renewed due to a Termination Notice given by the Company, as provided in Section 1(a), (the events under clauses (i), (ii) and (iii) herein collectively called a "Change of Control Termination"), you shall be entitled to receive the payments and benefits set forth in Section 10(e) and (f) below, which payments and benefits shall be in substitution for, and not in addition to, the payments and benefits otherwise payable under Section 2(a) or 2(b) second paragraph of this Agreement in the event of terminationSection 9(f). Your right to receive such payments and benefitsFor purposes hereof, other than the Accrued Obligations, shall be in consideration of your agreements under this Agreement, including but not limited to your agreement not to compete with the Company for two years after a Change of Control pursuant to Section 6, and shall be conditioned deemed to have taken place upon your execution the occurrence of a Release. Such Release shall be substantially in any of the form of Exhibit A but may be modified by following events: (a) the Company as it deems appropriate to reflect changes in law or circumstances arising acquisition after the date of this Agreement; provided that no such modification shall increase any , in one or more transactions, of your obligations to beneficial ownership (within the Company over those contemplated by this Agreement, including Exhibit A hereto. (bmeaning of Rule 13d-3(a)(1) For purposes of the Agreement, a "Change of Control" shall be deemed to have occurred if: (i) any person (as defined in Section 3(a)(9) of under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) and as used in Sections 13(dby any person or entity (other than Officer) and 14(dor group of persons or entities (other than Officer) thereof)), excluding who constitute a group (within the Company, any subsidiary and any employee benefit plan sponsored or maintained by the Company or any subsidiary (including any trustee meaning of any such plan acting in his capacity as trustee), but including a "group" as defined in Section 13(d)(3) of the Exchange Act, becomes ) of any securities of Employer such that as a result of such acquisition such person or entity or group beneficially owns (within the beneficial owner (as defined in meaning of Rule 13d-3 13d-3(a)(1) under the Exchange Act) more than 50% of shares Employer's then outstanding voting securities entitled to vote on a regular basis for a majority of the Company having at least 30% of the total number of votes that may be cast for the election of directors of the CompanyBoard; or (iib) the shareholders of the Company shall approve any merger or other business combination of the Company, sale of all or substantially all of the Company's assets of Employer (including, without limitation, by way of merger, consolidation, lease or combination transfer) in a transaction where Employer or the holders of the foregoing transactions common stock of Employer do not receive (a "Transaction"), other than a Transaction involving only the Company and one or more of its subsidiaries, or a Transaction immediately following which the shareholders of the Company immediately prior to the Transaction continue to have i) voting securities representing a majority of the voting power in the resulting entity (excluding entitled to vote on a regular basis for this purpose any shareholder of the Company owning directly or indirectly more than 10% of the shares of the other company involved in the Transaction) and no person is the beneficial owner of at least 30% of the shares of the resulting entity as contemplated by Section 10(b)(i) above; or (iii) within any 24-month period beginning on or after the date hereof, the persons who were directors of the Company immediately before the beginning of such period (the "Incumbent Directors") shall cease (for any reason other than death) to constitute at least a majority of the Board of Directors of the Company acquiring entity or of an affiliate that controls the board acquiring entity or (ii) securities representing a majority of directors the equity interests in the acquiring entity or of an affiliate that controls the acquiring entity. A Gross-Up Payment (as hereinafter defined) shall be payable upon termination of employment pursuant to this Section 9(f) on and subject to the following terms and conditions: (i) If Employer determines that any payment, option vesting or other benefit (a "Termination Payment") to Officer under this Section 9(f) is or will be subject to the tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or an Excise Tax is properly assessed against Officer based on a Termination Payment, Employer shall pay to Officer, at (ii) For purposes of determining the amount of any successor to the CompanyGross-Up Payment, provided that any director who was not a director as of the date hereof Officer shall be deemed to be an Incumbent Director if such director was elected to pay federal income taxes at the Board byhighest marginal rate of federal income taxation in the calendar year in which the applicable Termination Payment or Gross-Up Payment is made, or on the recommendation of or with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either actually or by prior operation of this Section 10(b)(iii), unless such election, recommendation or approval was the result of an actual or threatened election contest of the type contemplated by Regulation 14a-11 under the Exchange Act or any successor provision. Notwithstanding the foregoing, no Change of Control of the Company and shall be deemed to have occurred for purposes pay state and local income taxes at the highest marginal rates of this Agreement taxation in the state and locality of Officer's residence on the date the applicable Termination Payment or Gross-Up Payment is made, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes. (iii) If the Excise Tax or income tax payable with respect to a Gross-Up Payment as finally determined exceeds the amount taken into account or paid to Officer at the time the applicable Termination Payment or Gross-Up Payment is made (including by reason of any actions payment the existence or events in amount of which you participate in a capacity other than in your capacity as an executive or director cannot be determined at the time of the Companyapplicable Gross-Up Payment), Employer shall make an additional Gross-Up Payment in respect of such excess at the time that the amount of such excess is finally determined. (iv) If a Gross-Up Payment is made as a result of the assessment of an Excise Tax, Officer at Employer's request and expense shall take such action as reasonable and appropriate to challenge such assessment or recover (on Employer's behalf) such Excise Tax.

Termination Upon a Change of Control. (a) In the event a Change of Control (as defined below) occurs, and within 24 months after such Change of Control: (i) your employment with the Company is terminated by you pursuant to a Termination for Good Reason (as defined below); or (ii) your employment with the Company is terminated by the Company for any reason other than death, disability or for Cause pursuant to Sections 9(a), (b) or (c); or (iii) this Agreement is not renewed due to a Termination Notice given by the Company, as provided in Section 1(a), (the events under clauses (i), (ii) and (iii) herein collectively called a "Change of Control Termination"), you shall be entitled to receive the payments and benefits set forth in Section 10(e) and (f) below, which payments and benefits shall be in substitution for, and not in addition to, the payments and benefits otherwise payable under Section 2(a) or 2(b) of this Agreement in the event of termination. Your right to receive such payments and benefits, other than the Accrued Obligations, shall be in consideration of your agreements under this Agreement, including but not limited to your agreement not to compete with the Company for two years after a Change of Control pursuant to Section 6, and shall be conditioned upon your execution execution of a Release. Such Release shall be substantially in the form of Exhibit A but may be modified by the Company as it deems appropriate to reflect changes in law or circumstances arising after the date of this Agreement; provided that no such modification shall increase any of your obligations to the Company over those contemplated by this Agreement, including Exhibit A hereto. (b) For purposes of the Agreement, a "Change of Control" shall be deemed to have occurred if: (i) any person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and as used in Sections 13(d) and 14(d) thereof)), excluding the Company, any subsidiary and any employee benefit plan sponsored or maintained by the Company or any subsidiary (including any trustee of any such plan acting in his capacity as trustee), but including a "group" as defined in Section 13(d)(3) of the Exchange Act, becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of shares of the Company having at least 30% of the total number of votes that may be cast for the election of directors of the Company; (ii) the shareholders of the Company shall approve any merger or other business combination of the Company, sale of all or substantially all of the Company's assets or combination of the foregoing transactions (a "Transaction"), other than a Transaction involving only the Company and one or more of its subsidiaries, or a Transaction immediately following which the shareholders of the Company immediately prior to the Transaction continue to have a majority of the voting power in the resulting entity (excluding for this purpose any shareholder of the Company owning directly or indirectly more than 10% of the shares of the other company involved in the Transaction) and no person is the beneficial owner of at least 30% of the shares of the resulting entity as contemplated by Section 10(b)(i) above; or (iii) within any 24-month period beginning on or after the date hereof, the persons who were directors of the Company immediately before the beginning of such period (the "Incumbent Directors") shall cease (for any reason other than death) to constitute at least a majority of the Board of Directors of the Company or the board of directors of any successor to the Company, provided that any director who was not a director as of the date hereof shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of or with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either actually or by prior operation of this Section 10(b)(iii), unless such election, recommendation or approval was the result of an actual or threatened election contest of the type contemplated by Regulation 14a-11 under the Exchange Act or any successor provision. Notwithstanding the foregoing, no Change of Control of the Company shall be deemed to have occurred for purposes of this Agreement by reason of any actions or events in which you participate in a capacity other than in your capacity as an executive or director of the Company.

Termination Upon a Change of Control. (a) In the event of a Change of Control (as defined below), NutraCea or Employee may, at their respective option, upon notice to the other, terminate Employee's employment after the effective date of the Change of Control by providing the other party with thirty (30) occursdays' written notice; provided, that if Employee elects to terminate, (x) Employee must agree to provide reasonable transition services for a period of up to six (6) months after the date of Employee’s notice of termination if requested by NutraCea, and within 24 months after (y) the compensation for such transition services shall equal Employee’s Base Salary pro rated for the period of time of such transition services. Upon termination of Employee’s employment during the twelve (12) month period following a Change of Control: , Employee shall receive (i) your employment with the Company is terminated by you pursuant to a Termination for Good Reason (as defined below); or (ii) your employment with the Company is terminated by the Company for any reason severance and other than death, disability or for Cause pursuant to Sections 9(a), (b) or (c); or (iii) this Agreement is not renewed due to a Termination Notice given by the Company, as provided in Section 1(a), (the events under clauses (i), (ii) and (iii) herein collectively called a "Change of Control Termination"), you shall be entitled to receive the payments and benefits set forth in Section 10(e) 3.2.2, and (fii) below, which payments and benefits shall be in substitution for, and not in addition to, immediate vesting of all equity awards or options held by Employee of NutraCea or its successor. For the payments and benefits otherwise payable under Section 2(a) or 2(b) purposes of this Agreement in the event of termination. Your right to receive such payments and benefits, other than the Accrued Obligations, shall be in consideration of your agreements under this Agreement, including but not limited to your agreement not to compete with the Company for two years after a Change of Control pursuant to Section 6, and shall be conditioned upon your execution of a Release. Such Release shall be substantially in the form of Exhibit A but may be modified by the Company as it deems appropriate to reflect changes in law or circumstances arising after the date of this Agreement; provided that no such modification shall increase any of your obligations to the Company over those contemplated by this Agreement, including Exhibit A hereto. (b) For purposes of the Agreement, a term "Change of Control" shall be deemed to have occurred ifmean any of the following events if they occur after the CFO Date: (ix) any person the direct or indirect beneficial ownership (as defined in Section 3(a)(9) within the meaning of 13D-G of the Securities Exchange Act of 1934, as now or hereafter amended (the "“Exchange Act"”)) and as used in Sections 13(dof fifty percent (50%) and 14(d) thereof)), excluding or more of NutraCea’s outstanding stock is acquired or becomes held by any person or group of persons (within the Company, any subsidiary and any employee benefit plan sponsored or maintained by the Company or any subsidiary (including any trustee meaning of any such plan acting in his capacity as trustee), but including a "group" as defined in Section 13(d)(3) of the Exchange Act), becomes the beneficial owner or (as defined in Rule 13d-3 under the Exchange Act) of shares of the Company having at least 30% of the total number of votes that may be cast for the election of directors of the Company; (iiy) the shareholders of the Company shall approve any merger sale, mortgage, lease or other business combination of the Company, sale of all or substantially all of the Company's assets or combination of the foregoing transactions (a "Transaction"), other than a Transaction involving only the Company and transfer in one or more transactions not in the ordinary course of its subsidiaries, or a Transaction immediately following which the shareholders NutraCea's business of assets constituting more than fifty percent (50%) of the Company immediately prior assets of NutraCea and its subsidiaries (taken as a whole) to any such person or group of persons; provided, however, that the Transaction continue reincorporation of NutraCea to have a majority of the voting power different jurisdiction in the resulting entity (excluding for this purpose any shareholder of the Company owning directly or indirectly more than 10% of the shares of the other company involved a transaction that does not result in the Transaction) and no person is the beneficial owner of at least 30% of the shares of the resulting entity as contemplated by Section 10(b)(i) above; or (iii) within any 24-month period beginning on or after the date hereof, the persons who were directors of the Company NutraCea’s shareholders immediately before the beginning such transaction holding less than fifty percent (50%) of NutraCea’s outstanding capital stock after such period (the "Incumbent Directors") transaction shall cease (for any reason other than death) to not constitute at least a majority of the Board of Directors of the Company or the board of directors of any successor to the Company, provided that any director who was not a director as of the date hereof shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of or with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either actually or by prior operation of this Section 10(b)(iii), unless such election, recommendation or approval was the result of an actual or threatened election contest of the type contemplated by Regulation 14a-11 under the Exchange Act or any successor provision. Notwithstanding the foregoing, no Change of Control of the Company shall be deemed to have occurred for purposes of this Agreement by reason of any actions or events in which you participate in a capacity other than in your capacity as an executive or director of the CompanyControl.

Termination Upon a Change of Control. (a) In the event of a Change of ------------------------------------ Control (as hereinafter defined), Officer shall have the right to request at any time during the 30 day period following the consummation of such Change of Control that the surviving corporation or organization in such Change of Control (the "Surviving Entity") acknowledge and confirm in writing to Officer that the Surviving Entity has assumed all of Employer's rights and obligations hereunder in connection with such Change of Control (the "Employment Confirmation"). If the Surviving Entity in a Change of Control (as defined below) occursshall fail to provide Officer with an Employment Confirmation within 30 days of Officer's written request for same, then Officer shall be entitled to terminate his employment hereunder during the period commencing 31 days after Officer's written request for an Employment Confirmation and within 24 months terminating 61 days after such Change Officer's written request for an Employment Confirmation. In the event Officer terminates his employment hereunder pursuant to the immediately preceding sentence of Controlthis Section 8(f), then Officer shall be entitled to: (i) your employment with those payments and rights provided under Section 8(d) as though the Company is terminated termination has been initiated by you Employer without cause pursuant to a Termination for Good Reason (as defined belowSection 8(c); or and (ii) your employment with a Gross-Up Payment (as hereinafter defined), to the Company is terminated extent provided by the Company for any reason other than death, disability or for Cause pursuant to Sections 9(a), (b) or (c); or (iii) this Agreement is not renewed due to a Termination Notice given by the Company, as provided in Section 1(a), (the events under clauses (i), (ii) and (iii) herein collectively called a "Change of Control Termination"), you shall be entitled to receive the payments and benefits set forth in Section 10(e) and (f) below, which payments and benefits shall be in substitution for, and not in addition to, the payments and benefits otherwise payable under Section 2(a) or 2(b) second paragraph of this Agreement in the event of terminationSection 8(f). Your right to receive such payments and benefitsFor purposes hereof, other than the Accrued Obligations, shall be in consideration of your agreements under this Agreement, including but not limited to your agreement not to compete with the Company for two years after a Change of Control pursuant to Section 6, and shall be conditioned deemed to have taken place upon your execution the occurrence of a Release. Such Release shall be substantially in any of the form of Exhibit A but may be modified by following events: (a) the Company as it deems appropriate to reflect changes in law or circumstances arising acquisition after the date of this Agreement; provided that no such modification shall increase any , in one or more transactions, of your obligations to beneficial ownership (within the Company over those contemplated by this Agreement, including Exhibit A hereto. (bmeaning of Rule 13d-3(a)(1) For purposes of the Agreement, a "Change of Control" shall be deemed to have occurred if: (i) any person (as defined in Section 3(a)(9) of under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) and as used in Sections 13(dby any person or entity (other than Officer) and 14(dor group of persons or entities (other than Officer) thereof)), excluding who constitute a group (within the Company, any subsidiary and any employee benefit plan sponsored or maintained by the Company or any subsidiary (including any trustee meaning of any such plan acting in his capacity as trustee), but including a "group" as defined in Section 13(d)(3) of the Exchange Act, becomes ) of any securities of Employer such that as a result of such acquisition such person or entity or group beneficially owns (within the beneficial owner (as defined in meaning of Rule 13d-3 13d-3(a)(1) under the Exchange Act) more than 50% of shares Employer's then outstanding voting securities entitled to vote on a regular basis for a majority of the Company having at least 30% of the total number of votes that may be cast for the election of directors of the CompanyBoard; or (iib) the shareholders of the Company shall approve any merger or other business combination of the Company, sale of all or substantially all of the Company's assets of Employer (including, without limitation, by way of merger, consolidation, lease or combination transfer) in a transaction where Employer or the holders of the foregoing transactions common stock of Employer do not receive (a "Transaction"), other than a Transaction involving only the Company and one or more of its subsidiaries, or a Transaction immediately following which the shareholders of the Company immediately prior to the Transaction continue to have i) voting securities representing a majority of the voting power in the resulting entity (excluding entitled to vote on a regular basis for this purpose any shareholder of the Company owning directly or indirectly more than 10% of the shares of the other company involved in the Transaction) and no person is the beneficial owner of at least 30% of the shares of the resulting entity as contemplated by Section 10(b)(i) above; or (iii) within any 24-month period beginning on or after the date hereof, the persons who were directors of the Company immediately before the beginning of such period (the "Incumbent Directors") shall cease (for any reason other than death) to constitute at least a majority of the Board of Directors of the Company acquiring entity or of an affiliate that controls the acquiring entity or (ii) securities representing a majority of the equity interests in the acquiring entity or of an affiliate that controls the acquiring entity. A Gross-Up Payment (as hereinafter defined) shall be payable upon termination of employment pursuant to this Section 8(f) on and subject to the following terms and conditions: (i) If Employer determines that any payment, option vesting or other benefit (a "Termination Payment") to Officer under this Section 8(f) is or will be subject to the tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or an Excise Tax is properly assessed against Officer based on a Termination Payment, Employer shall pay to Officer, at the time the applicable Termination Payment is made or the board of directors Excise Tax is assessed, an additional amount (the "Gross-Up Payment") such that the net amount retained by Officer, after the payment in full of any successor Excise Tax on such Termination Payment and any federal, state and local income tax and Excise Tax on the Gross-Up Payment and any related interest and penalties, shall be not less than the amount or value of such Termination Payment. For purposes of determining whether any such Termination Payment will be subject to the CompanyExcise Tax, provided that Employer shall take into account any director who was not other payments, option vesting or benefits received or to be received by Officer in connection with an event giving rise to a director as Termination Payment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with Employer, with any person whose actions result in the Change of Control or with any person affiliated with Employer or such person) in accordance with Section 280G of the date hereof Code and any related regulations (whether temporary, proposed or final) and Internal Revenue Service Rulings and applicable case law. (ii) For purposes of determining the amount of any Gross-Up Payment, Officer shall be deemed to be an Incumbent Director if such director was elected to pay federal income taxes at the Board byhighest marginal rate of federal income taxation in the calendar year in which the applicable Termination Payment or Gross-Up Payment is made, or on the recommendation of or with the approval of, at least two-thirds of the directors who then qualified as Incumbent Directors either actually or by prior operation of this Section 10(b)(iii), unless such election, recommendation or approval was the result of an actual or threatened election contest of the type contemplated by Regulation 14a-11 under the Exchange Act or any successor provision. Notwithstanding the foregoing, no Change of Control of the Company and shall be deemed to have occurred for purposes pay state and local income taxes at the highest marginal rates of this Agreement taxation in the state and locality of Officer's residence on the date the applicable Termination Payment or Gross-Up Payment is made, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes. (iii) If the Excise Tax or income tax payable with respect to a Gross-Up Payment as finally determined exceeds the amount taken into account or paid to Officer at the time the applicable Termination Payment or Gross-Up Payment is made (including by reason of any actions payment the existence or events in amount of which you participate in a capacity other than in your capacity as an executive or director cannot be determined at the time of the Companyapplicable Gross-Up Payment), Employer shall make an additional Gross-Up Payment in respect of such excess at the time that the amount of such excess is finally determined. (iv) If a Gross-Up Payment is made as a result of the assessment of an Excise Tax, Officer at Employer's request and expense shall take such action as reasonable and appropriate to challenge such assessment or recover (on Employer's behalf) such Excise Tax.