Common use of Termination Upon Change of Control Clause in Contracts

Termination Upon Change of Control. (i) In the event of a Change in Control (as defined below) of the Employer and the termination of the Executive's employment by Executive or by the Employer under either 1 or 2 below, the Executive shall be entitled to a Lump Sum Payment equal to the sum of: (w) his monthly Base Salary then payable, multiplied by the lesser of the number of full months the Executive has theretofore been employed by the Employer or twenty-four (24); plus (x) two (2) times the average of the two (2) most recent annual Performance Bonuses that the Executive received; provided, however, that if the Executive has been employed by the Employer for fewer than two (2) years, then the amount set forth in (x) above shall be equal to two (2) times the average of the annual Performance Bonuses that the Executive has theretofore received from the Employer. The Employer shall also: (y) notwithstanding the vesting schedule otherwise applicable, fully vest all of Executive's options outstanding under any Option Plan and allow a period of eighteen (18) months following the termination of employment of the Executive for the Executive's exercise of such options; and (z) continue for the Executive (provided that such items are not available to him by virtue of other employment secured after termination) all of the perquisites, plans and benefits provided under paragraph (c) of Section z, for the lesser of the number of full months the Executive has been employed by the Employer or twenty-four (24) months following such termination. The payments and benefits provided under (w), (x), (y) and (z) above by the Employer shall not be offset against or diminish any other compensation or benefits accrued as of the date of termination. The following shall constitute termination under this paragraph: 1. The Executive terminates his employment under this Agreement pursuant to a written notice to that effect delivered to the Board within six (6) months after the occurrence of the Change in Control. 2. Executive's employment is terminated, including Constructively Discharged, by the Employer or its successor either in contemplation of or after Change in Control, other than on a for-cause basis. (ii) For Purposes of this paragraph, the term "Change in Control" shall mean the following occurring after the date of this Agreement:

Termination Upon Change of Control. (i) In the event of a Change in Control (as defined below) of the Employer and the termination of the Executive's employment by Executive or by the Employer under either 1 or 2 below, the Executive shall be entitled to a Lump Sum Termination Payment equal to the sum of: (w) his monthly three (3) times the rate of annualized Base Salary then payablepayable to the Executive, multiplied by the lesser of the number of full months the Executive has theretofore been employed by the Employer or twenty-four (24); plus (x) two three (23) times the average of the two three (23) most recent annual Performance Bonuses that the Executive received. The Employer shall also continue for the Executive the Post-Termination Perquisites and Benefits for the same period and to the same extent as provided in paragraph (c) of this Section 4; provided, however, that if the Executive has been employed by the Employer for fewer than two (2) years, then the amount set forth in (x) above shall be equal to two (2) times the average of the annual Performance Bonuses that the Executive has theretofore received from the Employer. The Employer shall also: (y) notwithstanding the vesting schedule otherwise applicable, immediately following a Change in Control (whether or not the Executive's employment is terminated), the Executive shall be fully vest vested in all of Executive's options and restricted shares outstanding under any Option Stock Plan or similar program and allow shall be allowed a period of eighteen (18) months following the termination of employment of the Executive for the Executive's exercise of such options; and (z) continue for the Executive (provided that such items are not available to him by virtue of other employment secured after termination) all of the perquisites, plans and benefits provided under paragraph (c) of Section z, for the lesser of the number of full months the Executive has been employed by the Employer or twenty-four (24) months following such termination. The payments and benefits provided under (w), (x), (y) and (z) above by the Employer shall not be offset against or diminish any other compensation or benefits accrued as of the date of termination. The following shall constitute termination under this paragraph: 1. The Executive terminates his employment under this Agreement pursuant to a written notice to that effect delivered to the Board within six (6) months after the occurrence of the Change in Control. 2. Executive's employment is terminated, including Constructively Discharged, by the Employer or its successor either in contemplation of or after Change in Control, other than on a for-cause basis. (ii) For Purposes purposes of this paragraph, the term "Change in Control" shall mean the following occurring after the date of this Agreement: 1. The consummation of the acquisition by any person, (as such term is defined in Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the "1934 Act") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the 0000 Xxx) of fifty percent (50%) or more of the combined voting power embodied in the then outstanding voting securities of COPT or the Employer; or 2. Approval by the stockholders of COPT or the Employer of: (1) a merger or consolidation of COPT or the Employer, if the stockholders of COPT or the Employer immediately before such merger or consolidation do not, as a result of such merger or consolidation, own, directly or indirectly, more than fifty percent (50%) of the combined voting power of the then outstanding voting securities of the entity resulting from such merger or consolidation in substantially the same proportion as was represented by their ownership of the combined voting power of the voting securities of COPT or the Employer outstanding immediately before such merger or consolidation; or (2) a complete or substantial liquidation or dissolution, or an agreement for the sale or other disposition, of all or substantially all of the assets of COPT or the Employer. Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because fifty percent (50%) or more of the combined voting then outstanding securities is acquired by: (1) a trustee or other fiduciary holding securities under one or more employee benefit plans maintained for employees of the entity; or (2) any corporation or other entity which, immediately prior to such acquisition, is owned directly or indirectly by the stockholders of COPT or the Employer in the same proportion as their ownership of stock in COPT or the Employer immediately prior to such acquisition. (iii) If it is determined, in the opinion of the Employer's independent accountants, in consultation with the Employer's independent counsel, that any amount payable to the Executive by the Employer under this Agreement, or any other plan or agreement under which the Executive participates or is a party, would constitute an "Excess Parachute Payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), the Employer shall pay to the Executive a "grossing-up" amount equal to the amount of such Excise Tax and all federal and state income or other taxes with respect to payment of the amount of such Excise Tax, including all such taxes with respect to any such grossing-up amount. If at a later date, the Internal Revenue Service assesses a deficiency against the Executive for the Excise Tax which is greater than that which was determined at the time such amounts were paid, the Employer shall pay to the Executive the amount of such unreimbursed Excise Tax plus any interest, penalties and professional fees or expenses, incurred by the Executive as a result of such assessment, including all such taxes with respect to any such additional amount. The highest marginal tax rate applicable to individuals at the time of payment of such amounts will be used for purposes of determining the federal and state income and other taxes with respect thereto. The Employer shall withhold from any amounts paid under this Agreement the amount of any Excise Tax or other federal, state or local taxes then required to be withheld. Computations of the amount of any grossing-up supplemental compensation paid under this subparagraph shall be made by the Employer's independent accountants, in consultation with the Employer's independent legal counsel. The Employer shall pay all accountant and legal counsel fees and expenses.

Termination Upon Change of Control. (i) In the event of a Change in Control (as defined below) of the Employer and the termination of the Executive's employment by Executive or by the Employer under either 1 or 2 below, the Executive shall shall, be entitled to a Lump Sum Payment equal to the sum of: (w) his monthly Base Salary then payable, multiplied by the lesser of the number of full months the Executive has theretofore been employed by the Employer or twenty-four (24); plus (x) two (2) times the average of the two (2) most recent annual Performance Bonuses that the Executive received; provided, however, that if the Executive has been employed by the Employer for fewer than two (2) years, then the amount set forth in (x) above shall be equal to two (2) times the average of the annual Performance Bonuses that the Executive has theretofore received from the Employer. The Employer shall also: (y) notwithstanding the vesting schedule otherwise applicable, fully vest all of Executive's options outstanding under any Option Plan and allow a period of eighteen (18) months following the termination of employment of the Executive for the Executive's exercise of such options; and (z) continue for the Executive (provided that such items are not available to him by virtue of other employment secured after termination) all of the perquisites, plans and benefits provided under paragraph (c) of Section z2, for the lesser of the number of full months the Executive has been employed by the Employer or twenty-four (24) 18 months following such termination. The payments and benefits provided under (w), (x), (y) and (z) above by the Employer shall not be offset against or diminish any other compensation or benefits accrued as of the date of termination. The following shall constitute termination under this paragraph: 1. The Executive terminates his employment under this Agreement pursuant to a written notice to that effect delivered to the Board within six (6) months after the occurrence of the Change in Control. 2. Executive's employment is terminated, including Constructively Discharged, by the Employer or its successor either in contemplation of or after Change in Control, other than on a for-cause basis. (ii) For Purposes purposes of this paragraph, the term "Change in Control" shall mean the following occurring after the date of this Agreement:

Termination Upon Change of Control. (i) In the event of a Change in Control (as defined below) of the Employer and the termination of the Executive's employment by Executive or by the Employer under either 1 or 2 below, the Executive shall be entitled to a Lump Sum Termination Payment equal to the sum of: (w) his monthly three (3) times the rate of annualized Base Salary then payablepayable to the Executive, multiplied by the lesser of the number of full months the Executive has theretofore been employed by the Employer or twenty-four (24); plus (x) two three (23) times the average of the two three (23) most recent annual Performance Bonuses that the Executive received; provided, however, that if the Executive has been employed by the Employer for fewer than two three (23) years, then the amount set forth in (x) above ), above, shall be equal to two three (23) times the average of the annual Performance Bonuses that the Executive has theretofore received from the Employer. The Employer shall also: also continue for the Executive the Post-Termination Perquisites and Benefits for the same period and to the same extent as provided in paragraph (yb) of this Section 4; provided, however, that notwithstanding the vesting schedule otherwise applicable, immediately following a Change in Control (whether or not the Executive's employment is terminated), the Executive shall be fully vest vested in all of Executive's options and restricted shares outstanding under any Option Stock Plan or similar program and allow shall be allowed a period of eighteen (18) months following the termination of employment of the Executive for the Executive's exercise of such options; and (z) continue for the Executive (provided that such items are not available to him by virtue of other employment secured after termination) all of the perquisites, plans and benefits provided under paragraph (c) of Section z, for the lesser of the number of full months the Executive has been employed by the Employer or twenty-four (24) months following such termination. The payments and benefits provided under (w), (x), (y) and (z) above by the Employer shall not be offset against or diminish any other compensation or benefits accrued as of the date of termination. The following shall constitute termination under this paragraph: 11 . The Executive terminates his employment under this Agreement pursuant to a written notice to that effect delivered to the Board within six (6) months after the occurrence of the Change in Control. 2. Executive's employment is terminated, including Constructively Discharged, by the Employer or its successor either in contemplation of or after Change in Control, other than on a for-cause basis. (ii) For Purposes of this paragraph, the term "Change in Control" shall mean the following occurring after the date of this Agreement:

Termination Upon Change of Control. (i) In the event of a Change in Control (as defined below) of the Employer and the termination of the Executive's employment by Executive or by the Employer under either 1 or 2 below, the Executive shall shall, be entitled to a Lump Sum Payment equal to the sum of: (w) his monthly Base Salary then payable, multiplied by the lesser of the number of full months the Executive has theretofore been employed by the Employer or twentythirty-four six (2436); plus (x) two three (23) times the average of the two three (23) most recent annual Performance Bonuses that the Executive received; provided, however, that if the Executive has been employed by the Employer for fewer than two three (23) years, then the amount set forth in (x) above shall be equal to two three (23) times the average of the annual Performance Bonuses that the Executive has theretofore received from the Employer. The Employer shall also: (y) notwithstanding the vesting schedule otherwise applicable, fully vest all of Executive's options outstanding under any Option Plan and allow a period of eighteen (18) months following the termination of employment of the Executive for the Executive's exercise of such options; and (z) continue for the Executive (provided that such items are not available to him by virtue of other employment secured after termination) all of the perquisites, plans and benefits provided under paragraph (c) of Section z2, for the lesser of the number of full months the Executive has been employed by the Employer or twenty-four (24) 18 months following such termination. The payments and benefits provided under (w), (x), (y) and (z) above by the Employer shall not be offset against or diminish any other compensation or benefits accrued as of the date of termination. The following shall constitute termination under this paragraph: 1. The Executive terminates his employment under this Agreement pursuant to a written notice to that effect delivered to the Board within six (6) months after the occurrence of the Change in Control. 2. Executive's employment is terminated, including Constructively Discharged, by the Employer or its successor either in contemplation of or after Change in Control, other than on a for-cause basis. (ii) For Purposes purposes of this paragraph, the term "Change in Control" shall mean the following occurring after the date of this Agreement:

Termination Upon Change of Control. (i) In the event of a Change in Control during the term of this agreement (as defined below) of the Employer and the termination of the Executive's employment by Executive or by the Employer under either 1 or 2 below, the Executive shall shall, be entitled to a Lump Sum Payment equal to the sum of: (w) his monthly Base Salary then payable, multiplied by the lesser of the number of full months the Executive has theretofore been employed by the Employer or twenty-twenty four (24); plus (x) two (2) times the average of the two (2) most recent annual Performance Bonuses that the Executive received; provided, however, that if the Executive has been employed by the Employer for fewer than two (2) years, then the amount set forth in (x) above shall be equal to two (2two(2) times the average of the annual Performance Bonuses Bonus that the Executive has theretofore received from the Employer. The Employer shall also: (y) notwithstanding the vesting schedule otherwise applicable, fully vest all of Executive's options outstanding under any Option Plan and allow a period of eighteen (18) months following the termination of employment of the Executive for the Executive's exercise of such options; and (z) continue for the Executive (provided that such items are not available to him by virtue of other employment secured after termination) all of the perquisites, plans and benefits provided under paragraph (c) of Section z2, for the lesser of the number of full months the Executive has been employed by the Employer or twenty-four (24) months following such termination. The payments and benefits provided under (w), (x), (y) and (z) above by the Employer shall not be offset against or diminish any other compensation or benefits accrued as of the date of termination. The following shall constitute termination under this paragraph: 1. The Executive terminates his employment under this Agreement pursuant to a written notice to that effect delivered to the Board within six three (63) months after the occurrence of the Change in Control. 2. Executive's employment is terminated, including Constructively Discharged, by the Employer or its successor either in contemplation of or after Change in Control, other than on a for-cause basis. (ii) For Purposes purposes of this paragraph, the term "Change in Control" shall mean the following occurring after the date of this Agreement:

Termination Upon Change of Control. (ia) In the event of a Change in Control (as defined below) of the Employer and the termination of the Executive's employment under either (i) or (ii) below, the Employer shall pay to the Executive an amount equal to (1) all salary, expenses and other amounts accrued and payable to the Executive through the effective date of such termination, plus (2) an amount equal to three (3) times the sum of (x) an amount equal to the Executive's then-current annual base salary, plus (y) the sum of the amounts of the most recent annual bonus (pursuant to Section 2.2 above) and incentive payments (under the Incentive Plan) paid by Executive the Employer to the Executive, and plus (z) the amount of the most recent annual contributions made or credited by the Employer under either 1 or 2 belowall employee retirement plans for the benefit of the Executive. In addition, for a period of three (3) years following such termination, the Executive Employer shall be entitled also continue to a Lump Sum Payment equal to the sum of: (w) his monthly Base Salary then payable, multiplied by the lesser of the number of full months provide coverage for the Executive has theretofore been employed under the health, long term disability and life insurance programs maintained by the Employer or twenty-four (24); plus (x) two (2) times the average of the two (2) most recent annual Performance Bonuses that the Executive received; provided, however, that if the Executive has been employed by the Employer for fewer than two (2) years, then the amount set forth in (x) above shall be equal to two (2) times the average of the annual Performance Bonuses that the Executive has theretofore received from the Employer. The Employer shall also: (y) notwithstanding the vesting schedule otherwise applicable, fully vest all of Executive's options outstanding under any Option Plan and allow a period of eighteen (18) months following the termination of employment of pay to the Executive for the Executive's exercise amounts set forth in this Section 4.7 in a lump sum within thirty (30) days after the later to occur of (I) the effective date of any such termination or (II) the announcement of such options; Change in Control, and (z) continue for the Executive (provided that such items are not available to him by virtue of other employment secured after termination) all of the perquisites, plans and benefits provided under paragraph (c) of Section z, for the lesser of the number of full months the Executive has been employed by the Employer or twenty-four (24) months following such termination. The payments and benefits provided under (w), (x), (y) and (z) above by the Employer payment shall not be offset against or diminish any reduced in the event the Executive obtains other compensation or benefits accrued as of the date of employment following such termination. The following shall constitute termination under this paragraph:. 1. (i) The Executive terminates his employment under this Agreement pursuant to by a written notice to that effect delivered to the Board within six one (61) months year after the occurrence of the Change in Control. 2. Executive's employment (ii) This Agreement is terminated, including Constructively Discharged, terminated by the Employer or its successor either in contemplation of for any reason whatsoever within the six (6) months preceding or within one (1) year after the Change in Control, other than on a for-cause basis. (iib) If it is determined, in the opinion of the certified public accountants then regularly retained by the Employer in consultation with legal counsel acceptable to the Executive, that any amount payable to the Executive by the Employer under this Agreement, or any other plan or agreement under which the Executive participates or is a party, would constitute an "Excess Parachute Payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), the Employer shall pay to the Executive the amount of such Excise Tax and all federal, state and local income or other taxes with respect to the payment of the amount of such Excise Tax, including all such taxes with respect to any such additional amount. If at a later date, the Internal Revenue Service assesses a deficiency against the Executive for the Excise Tax which is greater than that which was determined at the time such amounts were paid, the Employer shall pay to the Executive the amount of such Excise Tax plus any interest, penalties and professional fees or expenses incurred by the Executive as a result of such assessment, including all such taxes with respect to any such additional amount. The highest marginal tax rate applicable to individuals at the time of payment of such amounts will be used for purposes of determining the federal, state and local income and other taxes with respect thereto. The Employer shall withhold from any amounts paid under this Agreement the amount of any Excise Tax or other federal, state or local taxes then required to be withheld. Computations of the amount of any supplemental compensation paid under this Section shall be made by the independent public accountants then regularly retained by the Employer in consultation with legal counsel acceptable to Executive. The Employer shall pay all accountant and legal counsel fees and expenses. (c) For Purposes purposes of this paragraph, the term "Change in Control" shall mean the following occurring after the date of this Agreementfollowing:

Termination Upon Change of Control. (i) In the event of a Change in Control (as defined below) of the Employer and the termination of the Executive's employment by Executive or by the Employer under either 1 or 2 below, the Executive shall be entitled to a Lump Sum Termination Payment equal to the sum of: of (w) his monthly three (3) times the rate of annualized Base Salary then payablepayable to the Executive, multiplied by the lesser of the number of full months the Executive has theretofore been employed by the Employer or twenty-four (24); plus (x) two three (23) times the average of the two three (23) most recent annual Performance Bonuses that the Executive received; provided, however, that if the Executive has been employed by the Employer for fewer than two three (23) years, then than the amount set forth in (x) ), above shall be equal to two three (23) times the average of the annual Performance Bonuses that the Executive has theretofore received from the Employer. The Employer shall also: also continue for the Executive the Post-Termination Perquisites and Benefits for the same period and to the same extent as provided in paragraph (yb) of this Section 4; provided, however, that notwithstanding the vesting schedule otherwise applicable, immediately following a Change in Control (whether or not the Executive's employment is terminated), the Executive shall be fully vest vested in all of Executive's options and restricted shares outstanding under any Option Stock Plan or similar program and allow shall be allowed a period of eighteen (18) months following the termination of employment of the Executive for the Executive's exercise of such options; and (z) continue for the Executive (provided that such items are not available to him by virtue of other employment secured after termination) all of the perquisites, plans and benefits provided under paragraph (c) of Section z, for the lesser of the number of full months the Executive has been employed by the Employer or twenty-four (24) months following such termination. The payments and benefits provided under (w), (x), (y) and (z) above by the Employer shall not be offset against or diminish any other compensation or benefits accrued as of the date of termination. The following shall constitute termination under this paragraph: 11 . The Executive terminates his employment under this Agreement pursuant to a written notice to that effect delivered to the Board within six (6) months after the occurrence of the Change in Control. 2. Executive's employment is terminated, including Constructively Discharged, by the Employer or its successor either in contemplation of or after Change in Control, other than on a for-cause basis. (ii) For Purposes of this paragraph, the term "Change in Control" shall mean the following occurring after the date of this Agreement:

Termination Upon Change of Control. (i) In the event of a Change in Control (as defined below) of the Employer and the termination of the Executive's employment by Executive or by the Employer under either 1 or 2 below, the Executive shall shall, subject to the Age-Based Adjustments described in Section 3(h) below, be entitled to a Lump Sum Payment equal to the sum of: (w) his monthly Base Salary then payable, multiplied by the lesser of the number of full months the Executive has theretofore been employed by the Employer or twentythirty-four six (2436); plus (x) two three (23) times the average of the two three (23) most recent annual Performance Bonuses that the Executive received; provided, however, that if the Executive has been employed by the Employer for fewer than two three (23) years, then the amount set forth in (x) above shall be equal to two three (23) times the average of the annual Performance Bonuses that the Executive has theretofore received from the Employer. The Employer shall also: (y) notwithstanding the vesting schedule otherwise applicable, fully vest all of Executive's options outstanding under the "SIP Options," as well as any Option Plan awards outstanding under the "DIP Awards," and allow a period of eighteen (18) months following the termination of employment of the Executive for the Executive's exercise of such optionsthe SIP Options; and (z) continue for the Executive (provided that such items are not available to him by virtue of other employment secured after termination) all of the perquisites, plans and benefits provided under paragraph (c) of Section z2, as well as non-exclusive secretarial assistance, office space and accouterments, for the lesser of the number of full months the Executive has been employed by the Employer or twenty-four thirty six (2436) months following such termination. The payments and benefits provided under (w), (x), (y) and (z) above by the Employer shall not be offset against or diminish any other compensation or benefits accrued as of the date of termination. The following shall constitute termination under this paragraph: 1. The Executive terminates his employment under this Agreement pursuant to a written notice to that effect delivered to the Board within six (6) months after the occurrence of the Change in Control. 2. Executive's employment is terminated, including Constructively Discharged, by the Employer or its successor either in contemplation of or within two (2) years after the Change in Control, other than on a for-cause basis. (ii) For Purposes purposes of this paragraph, the term "Change in Control" shall mean the following occurring after the date of this Agreementfollowing:

Termination Upon Change of Control. (ia) In the event of a Change in Control (as defined below) of the Employer and the termination of the Executive's employment under either (i) or (ii) below, the Employer shall pay to the executive an amount equal to (1) all salary, expenses and other amounts accrued and payable to the Executive through the effective date of such termination, plus (2) an amount equal to the sum of (x) an amount equal to the Executive's then-current annual base salary, plus (y) the sum of the amounts of the amount of the most recent annual bonus (pursuant to Section 2.2 above) and incentive payments (under the Incentive Plan) paid by Executive the Employer to the Executive, and plus (z) the amount of the most recent annual contributions made or credited by the Employer under either 1 or 2 belowall employee retirement plans for the benefit of the Executive. In addition, for a period of one (1) year following such termination, the Executive Employer shall be entitled also continue to a Lump Sum Payment equal to the sum of: (w) his monthly Base Salary then payable, multiplied by the lesser of the number of full months provide coverage for the Executive has theretofore been employed under the health, long term disability, and life insurance programs maintained by the Employer or twenty-four (24); plus (x) two (2) times the average of the two (2) most recent annual Performance Bonuses that the Executive received; provided, however, that if the Executive has been employed by the Employer for fewer than two (2) years, then the amount set forth in (x) above shall be equal to two (2) times the average of the annual Performance Bonuses that the Executive has theretofore received from the Employer. The Employer shall also: pay to the Executive the amounts set forth in this Section 4.6 in a lump sum within thirty (y30) notwithstanding days after the vesting schedule otherwise applicable, fully vest all later to occur of Executive's options outstanding under (I) the effective date of any Option Plan and allow a period of eighteen such termination or (18II) months following the termination of employment announcement of the Executive for the Executive's exercise of Change in Control, and such options; and (z) continue for the Executive (provided that such items are not available to him by virtue of other employment secured after termination) all of the perquisites, plans and benefits provided under paragraph (c) of Section z, for the lesser of the number of full months the Executive has been employed by the Employer or twenty-four (24) months following such termination. The payments and benefits provided under (w), (x), (y) and (z) above by the Employer payment shall not be offset against or diminish any reduced in the event the Executive obtains other compensation or benefits accrued as of the date of employment following such termination. The following shall constitute termination under this paragraph:. 1. (i) The Executive terminates his employment under this Agreement pursuant to by a written notice to that effect delivered to the Board within six (6) months after the occurrence of Change in Control. (ii) This Agreement is terminated by the Employer or its successor for any reason whatsoever within the six (6) months preceding or within six (6) months after the Change in Control. 2. Executive's employment (b) If it is terminateddetermined, including Constructively Discharged, in the opinion of the certified public accountants then regularly retained by the Employer in consultation with legal counsel acceptable to the Executive, that any amount payable to the Executive by the Employer under this Agreement, or its successor either any other plan or agreement under which the Executive participates or is a party, would constitute an "Excess Parachute Payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), the Employer shall pay to the Executive the amount of such Excise Tax and all federal, state and local income or other taxes with respect to the payment of the amount of such Excise Tax, including all such taxes with respect to any such additional amount. If at a later date, the Internal Revenue Service assesses a deficiency against the Executive for the Excise Tax which is greater than that which was determined at the time such amounts were paid, the Employer shall pay to the Executive the amount of such Excise Tax plus any interest, penalties and professional fees or expenses incurred by the Executive as a result of such assessment, including all such taxes with respect to any such additional amount. The highest marginal tax rate applicable to individuals at the time of payment of such amounts will be used for purposes of determining the federal, state and local income and other taxes with respect thereto. The Employer shall withhold from any amounts paid under this Agreement the amount of any Excise Tax or other federal, state or local taxes then required to be withheld. Computations of the amount of any supplemental compensation paid under this Section shall be made by the independent public accountants then regularly retained by the Employer in contemplation of or after Change in Control, other than on a for-cause basisconsultation with legal counsel acceptable to Executive. The Employer shall pay all accountant and legal counsel fees and expenses. (iic) For Purposes purposes of this paragraph, the term "Change in Control" shall mean the following occurring after the date of this Agreementfollowing:

Termination Upon Change of Control. (ia) In the event of If a Change in of Control (as defined below) of the Employer and the termination of occurs without the Executive's employment by Executive or by the Employer under either 1 or 2 belowprior written consent, the Executive shall have the right to terminate this Agreement. At least ten (10) days prior to any such proposed Change of Control, the Company shall notify Executive of its intention to effect such Change of Control, and the Executive shall thereupon have five (5) days from the actual receipt of such notice to give notice of his intention to terminate this Agreement in the event of the Change of Control. If, notwithstanding such notice by the Executive, the Company proceeds with such Change of Control, this Agreement shall be entitled deemed terminated as of the effective date of the event constituting the Change of Control and the Executive shall receive in cash, within ten (10) days of termination, (i) any compensation accrued and unpaid pursuant to a Lump Sum Payment Section 4 of this Agreement, (ii) an amount equal to the sum of: balance of Executive's salary that would have been paid by the Company pursuant to Section 4.1 hereof over the full Term of this Agreement as if the Agreement had not been terminated, (wiii) his monthly Base Salary then payablean amount equal to Executive's bonus, if any, for the preceding 12-month period ended December 31, multiplied by the lesser of the number of full months the Executive has theretofore been employed by the Employer or twenty-four remaining years (24); plus (xincluding any fractional years) two (2) times the average of the two (2) most recent annual Performance Bonuses that the Executive received; provided, however, that if the Executive has been employed by the Employer for fewer than two (2) years, then the amount set forth in (x) above shall be equal to two (2) times the average of the annual Performance Bonuses that the Executive has theretofore received from the Employer. The Employer shall also: (y) notwithstanding the vesting schedule otherwise applicable, fully vest all of Executive's options outstanding under any Option Plan and allow a period of eighteen (18) months following the termination of employment of the Executive for the Executive's exercise of such options; and (z) continue for the Executive (provided that such items are not available to him by virtue of other employment secured after termination) all of the perquisites, plans and benefits provided under paragraph (c) of Section z, for the lesser of the number of full months the Executive has been employed by the Employer or twenty-four (24) months following such termination. The payments and benefits provided under (w), (x), (y) and (z) above by the Employer shall not be offset against or diminish any other compensation or benefits accrued as of the date of termination. The following shall constitute termination under this paragraph: 1. The Executive terminates his employment left under this Agreement pursuant since the date such bonus was determined by the Board of Directors plus (iv) an amount equal to a written notice to $200,000 as severance under this Agreement. In the event that effect delivered any payment (or portion thereof) to the Board within six (6) months after the occurrence Executive under this Section 5.5 is determined to constitute an "excess parachute payment," under Sections 28OG and 4999 of the Change in Control.Internal Revenue Code of 1986, as amended, the following calculations shall be made: 2. Executive's employment is terminated, including Constructively Discharged, by (i) The after-tax value to the Employer or its successor either in contemplation Executive of or after Change in Control, other than on a for-cause basis.the payments under this Section 5.5 without any reduction; and (ii) For Purposes The after-tax value to the Executive of the payments under this paragraphSection 5.5 as reduced to the maximum amount (the "Maximum Amount") which may be paid to the Executive without a portion of the 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 term "payments to Executive under this Section 5.5 shall be reduced to the Maximum Amount. (b) If a Change in of Control occurs, regardless of whether the Executive has consented to such Change of Control" , Executive shall mean have the following occurring after the date of this Agreement:right to resign.