Common use of Certain Tax Matters Clause in Contracts

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists of an unfunded and unsecured promise by the Company to deliver Shares in the future, subject to the terms hereof, it is not possible to make a so-called “83(b) election” with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5.

Certain Tax Matters. The Participant expressly acknowledges (a) If any of the payments provided to you pursuant to Section 5 hereof (the "Contract Payments") or any other portion of the Total Payments (as defined below) becomes subject at any time to the tax (the "Excise Tax") imposed by section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), AKS shall pay to you at the time specified in section 6(b) below, an additional amount (the "Gross-Up Payment") such that because the net amount retained by you, after deduction of the Excise Tax on any Contract Payments and/or other Total Payments, any federal and state and local income tax and Excise Tax upon the payment(s) provided for by this Award consists paragraph, and any interest, penalties or additions to tax payable by you with respect thereto, shall be equal to the present value of an unfunded the Contract Payments and unsecured promise by such other Total Payments. For purposes of determining whether any of the Company to deliver Shares in the future, foregoing payments will be subject to the terms hereofExcise Tax and the amount of such Excise Tax, it is not possible to make a so-called “83(b(i) election” with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right any other payments or benefits received or to be issued Shares upon received by you in connection with a Change In Control or the vesting and settlement termination of this Award your employment (whether such payments are Contract Payments or are payable pursuant to the terms of any other plan, arrangement or agreement with AKS, Holding or any portion thereofof their respective Affiliates or successors, any person whose actions result in a Change In Control or any corporation which, as a result of the completion of the transactions causing a Change In Control, will become affiliated with AKS or Holding within the meaning of section 1504 of the Code (such other payments, together with the Contract Payments, the "Total Payments")) shall be treated as "parachute payments" within the meaning of section 28OG(b)(2) of the Code, are and all "excess parachute payments" within the meaning of section 28OG(b)(1) shall be treated as subject to the Participant’s promptly payingExcise Tax, except to the extent that, in the opinion of tax counsel selected by AKS' independent auditors and acceptable to you ("Tax Counsel"), the Total Payments (in whole or in part) do not constitute parachute payments, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings excess parachute payments are due, otherwise not subject to the Company in cash Excise Tax, (or by such other means ii) the amount of the Total Payments that shall be treated as may be acceptable subject to the Committee in its discretionExcise Tax shall be equal to the lesser of (1) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum total amount of such tax obligations by the Total Payments or (2) the amount of excess parachute payments within the meaning of sections 28OG(b)(1) (after applying clause (i) authorizing hereof), and (iii) the Company to withhold a number value of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (any noncash benefits or any portion thereofdeferred payment or benefit shall be determined by AKS' independent auditors in accordance with the principles of sections 28OG(d)(3) unless and until (4) of the Participant or Code. For purposes of determining the person then holding this Award has remitted to amount of the Company an amount in cash sufficient to satisfy any federalGross-Up Payment(s), state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant you shall be deemed to have committedpay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment(s) is (are) to pay be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in cash all effect in the state and locality of your residence in the calendar year in which the Gross-Up Payment(s) is (are) to be made, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, you shall repay to AKS at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax withholdings required imposed on the Gross-Up Payment being repaid by you if such repayment results in a federal and state and local income tax deduction), plus interest on the amount of such repayment at the applicable federal rate (as defined in section 1274(d) of the Code). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any later payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), AKS shall make an additional gross-up payment in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee excess (plus any interest payable with respect to such excess) at the payment time that the amount of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5excess is finally determined.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists of an unfunded and unsecured promise by the Company to deliver Shares in the future, subject to the terms hereof, it is not possible to make a so-called “83(b) election” with respect to this the Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this the Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect of any later requirement of withholding, withholding being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee Administrator in its discretion, including, without limitation, if permitted by applicable law and Company policy and if approved by the Compensation Committee of the Company, withholding of Shares from the Shares otherwise deliverable to the Participant, up to the greatest number of whole Shares with an aggregate fair market value not exceeding the minimum required withholding applicable to the amount so vesting) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be required to be transferred in satisfaction pursuant to the vesting and settlement of this the Award (or any portion thereof) unless and until the Participant or the person then holding this the Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such sharesShares, or has made other arrangements satisfactory to the Committee Administrator with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates subsidiaries to withhold such amounts from any amounts otherwise payable owed to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5Section.

Certain Tax Matters. The Participant expressly acknowledges that because During the period from the date of this Award consists of an unfunded and unsecured promise by Agreement to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to deliver Shares (A) timely file all material tax returns (taking into account any applicable extensions) required to be filed by or on behalf of each such entity; (B) timely pay all material taxes due and payable; (C) accrue a reserve in the futurebooks and records and financial statements of any such entity in accordance with past practice for all taxes payable but not yet due; (D) promptly notify Parent of any material suit, subject to the terms hereofclaim, it is not possible to make a so-called action, investigation, audit or similar proceeding (collectively, “83(bActions”) election” pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement amount of withholdingtax and not settle or compromise any tax liability in excess of $10 million for individual claims, being liable promptly or $50 million in the aggregate, without Parent’s prior written consent, which shall not be unreasonably withheld; (E) not make any material tax election, other than with Parent’s prior written consent or other than in the ordinary course of business consistent with past practice; and (F) cause all existing tax sharing agreements, tax indemnity agreements and similar agreements, arrangements or practices to pay at such time as such withholdings are due, to which the Company in cash (or any of its Subsidiaries is or may be a party or by such other means as which the Company or any of its Subsidiaries is or may otherwise be acceptable to the Committee in its discretion) all taxes required bound to be withheld, if any, in respect terminated as of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of Closing Date so that after such tax obligations by (i) authorizing date neither the Company to withhold a number nor any of Shares its Subsidiaries shall have any further rights or (iiliabilities thereunder. Any tax returns described in this Section 4.01(d) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay complete and correct in cash all tax withholdings required at any later time in respect material respects and shall be prepared on a basis consistent with the past practice of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to in a manner that does not distort taxable income, including by deferring income or accelerating deductions. The Company shall notify Parent upon the Participant, but nothing in this sentence shall be construed as relieving the Participant filing of any liability for satisfying his or her obligations under the preceding provisions of this Section 5such material tax return and shall make such tax returns available to Parent.

Certain Tax Matters. The Participant expressly acknowledges that because During the period from the date of this Award consists of an unfunded and unsecured promise by Agreement to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, (i) timely file (without extensions) all tax returns ("Post-Signing Returns") required to deliver Shares be filed by or on behalf of each such entity; (ii) timely pay all taxes due and payable in respect of such Post-Signing Returns that are so filed; (iii) accrue a reserve in the future, subject books and records and financial statements of any such entity in accordance with past practice for all taxes payable by such entity for which no Post-Signing Return is due prior to the terms hereofEffective Time; (iv) promptly notify Parent of any suit, it is not possible to make a so-called “83(bclaim, action, investigation, proceeding or audit (collectively, "Actions") election” pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement material amount (individually or in the aggregate) of withholdingtax and not settle or compromise any such Action without Parent's consent; provided, being liable promptly to pay at such time as such withholdings are duethat Parent's consent shall not be unreasonably withheld; provided, further, that Parent must respond to the Company in cash (within ten business days following the receipt by Parent of written notice of any proposed settlement or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect compromise of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned any Action by the ParticipantCompany; (v) not make (other than in the ordinary course of business consistent with past practice), in each caseamend or revoke any material tax election or settle or compromise any material tax liability, having an aggregate Fair Market Value other than as required by applicable law or with Parent's consent; (measured vi) not execute any waiver of restrictions on the date such Shares would otherwise be delivered assessment or are transferred to the Companycollection of any tax, as applicableother than with Parent's consent; and (vii) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (cause all existing tax sharing agreements, tax indemnity obligations and similar agreements, arrangements or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements practices with respect to taxes to which the Company or any of its Subsidiaries is or may be a party or by which the Company or any of its Subsidiaries is or may otherwise be bound to be terminated as of the Closing Date so that after such date neither the Company nor any of its Subsidiaries shall have any further rights or liabilities thereunder. Any tax withholdings then due and has committed (and by holding returns described in this Award the Participant Section 4.01(d) shall be deemed to have committed) to pay complete and correct in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee material respects and shall be prepared on a basis consistent with respect to the payment of such taxespast practice. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant promptly provide Parent with copies of any liability for satisfying his or her obligations under the preceding provisions of this Section 5Post-Signing Returns, as Parent may reasonably request.

Certain Tax Matters. The Participant expressly acknowledges that because During the period from the date of this Award consists of an unfunded and unsecured promise by Agreement to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to deliver Shares (i) timely file all material Tax Returns (taking into account any applicable extensions) required to be filed by or on behalf of each such entity; (ii) timely pay all material Taxes due and payable or otherwise adequately provide for a reserve in the future, subject to the terms hereof, it is books and records and financial statements of any such entity in accordance with past practice for all Taxes payable but not possible to make a so-called “83(byet due; (iii) election” promptly notify Parent of any material Actions that become pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement amount of withholdingTax and not settle or compromise any material Tax liability without Parent’s prior written consent, being liable promptly which shall not be unreasonably withheld; and (iv) not make or change any material Tax election, change an annual accounting period, adopt or change any accounting method with respect to pay at such time as such withholdings are dueTaxes, enter into any closing agreement, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company in cash (or by such any of its Subsidiaries, or take any other means as may be acceptable similar action relating to the Committee in its discretion) all taxes required to be withheld, if any, in respect filing of this Award. The Participant shall, at his any Tax Return or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxesany Tax, other than with Parent’s prior written consent or other than in the ordinary course of business consistent with past practice. Any Tax Returns described in this Section 4.01(e) shall be complete and correct in all material respects and shall be prepared on a basis consistent with the past practice of the Company. The Participant also authorizes Company shall notify Parent upon the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant filing of any liability for satisfying his or her obligations under the preceding provisions of this Section 5such material Tax Return and shall make such Tax Returns available to Parent.

Certain Tax Matters. The Participant expressly acknowledges that because (i) During the period from the date of this Award consists of an unfunded and unsecured promise by Agreement to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to deliver Shares (A) timely file all material tax returns (taking into account any applicable extensions) required to be filed by or on behalf of each such entity ("Post-Signing Returns"); (B) timely pay all material taxes due and payable; (C) accrue a reserve in the futurebooks and records and financial statements of any such entity in accordance with past practice for all taxes payable but not yet due; (D) promptly notify Parent of any material suit, subject to the terms hereofclaim, it is not possible to make a so-called “83(baction, investigation, audit or similar proceeding (collectively, "Actions") election” pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement amount of withholdingtax and not settle or compromise any tax liability in excess of $10 million for individual claims, being liable promptly or $50 million in the aggregate, without Parent's prior written consent, which shall not be unreasonably withheld; (E) not make any material tax election, other than with Parent's prior written consent or other than in the ordinary course of business consistent with past practice; and (F) cause all existing tax sharing agreements, tax indemnity agreements and similar agreements, arrangements or practices to pay at such time as such withholdings are due, to which the Company in cash (or any of its Subsidiaries is or may be a party or by such other means as which the Company or any of its Subsidiaries is or may otherwise be acceptable to the Committee in its discretion) all taxes required bound to be withheld, if any, in respect terminated as of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of Closing Date so that after such tax obligations by (i) authorizing date neither the Company to withhold a number nor any of Shares its Subsidiaries shall have any further rights or (iiliabilities thereunder. Any tax returns described in this Section 4.01(d) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay complete and correct in cash all tax withholdings required at any later time in respect material respects and shall be prepared on a basis consistent with the past practice of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to in a manner that does not distort taxable income, including by deferring income or accelerating deductions. The Company shall notify Parent upon the Participant, but nothing in this sentence shall be construed as relieving the Participant filing of any liability for satisfying his or her obligations under the preceding provisions of this Section 5such material tax return and shall make such tax returns available to Parent.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists At or after the Closing, all ad valorem, property or other Taxes imposed on a periodic basis pertaining to the Purchased Assets shall be prorated on the basis of an unfunded and unsecured promise the number of days of the relevant Tax year or period which have elapsed through the Closing Date, determined without reference to any change of ownership occasioned by the Company to deliver Shares in consummation of the future, subject transactions contemplated by this Agreement. The Seller shall be responsible for that portion of such amounts relating to the terms hereofperiod on or prior to the Closing Date and the Buyer shall be responsible for that portion of such amounts relating to the period after the Closing Date. The Buyer and the Seller shall cooperate, it is not possible as and to make a so-called “83(b) election” the extent reasonably requested by either party, in connection with the filing of any Tax Returns, and Action with respect to this AwardTaxes, relating to the Purchased Assets or the operation of the Business. The Participant expressly acknowledges Such cooperation shall include the retention and agrees that (upon a party’s reasonable request) the Participant’s rights provision of records and information which are reasonably relevant to any such Tax Return, or Action, making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, including the right to be issued Shares upon the vesting and settlement timely notification of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect receipt of any later requirement notice of withholding, being liable promptly an Action or notice of deficiency relating to pay at such time as such withholdings are due, to the Company in cash (any Tax or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements Tax Return with respect to tax withholdings then due and has committed (and by holding which the non-recipient may have liability hereunder. Notwithstanding anything in this Award Agreement to the Participant contrary, any claim against the Seller pursuant to this paragraph shall be deemed to made by the Buyer no later than six (6) months after Closing; the Seller shall have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any no liability for satisfying his or her obligations under the preceding provisions Taxes after expiration of this Section 5six (6) months from Closing.

Certain Tax Matters. The Participant expressly acknowledges that because During the period from the date of this Award consists of an unfunded and unsecured promise by Agreement to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, (i) timely file all tax returns ("Post-Signing Returns") required to deliver Shares be filed by or on behalf of each such entity; (ii) timely pay all taxes due and payable in respect of such Post-Signing Returns that are so filed; (iii) accrue a reserve in the future, subject books and records and financial statements of any such entity in accordance with past practice for all taxes payable by such entity for which no Post-Signing Return is due prior to the terms hereofEffective Time; (iv) promptly notify Parent of any suit, it is not possible to make a so-called “83(bclaim, action, investigation, proceeding or audit (collectively, "Actions") election” pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement material amount of withholding, being liable promptly to pay at tax and not settle or compromise any such time as such withholdings are due, to the Company in cash Action without Parent's consent; (or by such other means as may be acceptable to the Committee in its discretionv) all taxes required not make any material tax election (including any election which would cause Microsphere Technology LLC to be withheldtreated as an entity other than a disregarded entity for Federal tax purposes) or settle or compromise any material tax liability, if anyother than with Parent's consent or other than in the ordinary course of business; and (vi) cause all existing tax sharing agreements, in respect of this Award. The Participant shalltax indemnity obligations and similar agreements, at his arrangements or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements practices with respect to taxes to which the Company or any of its Subsidiaries is or may be a party or by which the Company or any of its Subsidiaries is or may otherwise be bound to be terminated as of the Closing Date so that after such date neither the Company nor any of its Subsidiaries shall have any further rights or liabilities thereunder. Any tax withholdings then due and has committed (and by holding returns described in this Award the Participant Section 4.01(d) shall be deemed to have committed) to pay complete and correct in cash all tax withholdings required at any later time in respect material respects and shall be prepared on a basis consistent with the past practice of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his a manner that does not distort taxable income (e.g. by deferring income or her obligations under the preceding provisions of this Section 5accelerating deductions).

Certain Tax Matters. The Participant expressly acknowledges During the period from the date of this Agreement to the Effective Time, (i) the Company and each of its Subsidiaries shall timely file all tax returns (“Post-Signing Returns”) required to be filed by or on behalf of each such entity before the Closing (after taking into account any extensions), and all Post-Signing Returns shall be complete and correct and shall be prepared on a basis consistent with the past practices of the Company and its Subsidiaries and in a manner that because this Award consists does not distort taxable income (e.g., by deferring income or accelerating deductions); provided that no Post-Signing Returns shall be filed with any taxing authority without Parent’s prior written consent (which consent shall not be unreasonably delayed or withheld); (ii) the Company and each of an unfunded its Subsidiaries shall timely pay all taxes due and unsecured promise payable owed by each such entity other than any taxes being contested in good faith through appropriate proceedings and for which adequate reserves in accordance with GAAP have been established on the Company’s books and records; (iii) the Company will accrue a reserve in its books and records and financial statements in accordance with GAAP and past practice for all taxes payable by the Company to deliver Shares in the future, subject or any of its Subsidiaries for which no Post-Signing Return is due prior to the terms hereofEffective Time; (iv) the Company shall promptly notify Parent of any suit, it is not possible to make a so-called claim, action, assessment, investigation, proceeding or audit (collectively, “83(btax actions”) election” pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement tax and will not settle or compromise any such tax action without Parent’s prior written consent (which consent shall not be unreasonably delayed or withheld); (v) none of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereofof its Subsidiaries will make, revoke or change any material tax election without Parent’s prior written consent (which consent shall not be unreasonably delayed or withheld); and (vi) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and each of its Affiliates to withhold such amounts from any amounts otherwise payable to Subsidiaries will retain all books, documents and records necessary for the Participant, but nothing in this sentence shall be construed as relieving the Participant preparation of any liability for satisfying his or her obligations under the preceding provisions of this Section 5tax returns and reports and tax audits.

Certain Tax Matters. The Participant expressly acknowledges that because (i) During the period from the date of this Award consists of an unfunded and unsecured promise by Agreement to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, (A) timely file all tax returns (“Post-Signing Returns”) required to deliver Shares be filed by or on behalf of each such entity; (B) timely pay all taxes due and payable; (C) accrue a reserve in the future, subject books and records and financial statements of any such entity in accordance with past practice for all taxes payable by such entity for which no Post-Signing Return is due prior to the terms hereofEffective Time; (D) promptly notify Parent of any suit, it claim, action, investigation, proceeding or audit (collectively, “Actions”) that is not possible to make a so-called “83(b) election” or becomes pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum material amount of tax and not settle or compromise any such Action without Parent’s consent; (E) not make any material tax election or settle or compromise any material tax liability, other than with Parent’s consent or other than in the ordinary course of business; and (F) cause all existing tax sharing agreements, tax indemnity obligations by (i) authorizing the Company to withhold a number of Shares and similar agreements, arrangements or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements practices with respect to taxes to which the Company or any of its Subsidiaries is or may be a party or by which the Company or any of its Subsidiaries is or may otherwise be bound to be terminated as of the Closing Date so that after such date neither the Company nor any of its Subsidiaries shall have any further rights or liabilities thereunder. Any tax withholdings then due and has committed (and by holding returns described in this Award the Participant Section 4.01(d) shall be deemed to have committed) to pay complete and accurate in cash all tax withholdings required at any later time in respect material respects and shall be prepared on a basis consistent with the past practice of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participantin a manner that does not distort taxable income (e.g., but nothing in this sentence by deferring income or accelerating deductions); provided that no Post-Signing Returns shall be construed as relieving the Participant of filed with any liability for satisfying his or her obligations under the preceding provisions of this Section 5taxing authority without Parent’s prior written consent.

Certain Tax Matters. The Participant expressly acknowledges that because (i) During the period from the date of this Award consists of an unfunded and unsecured promise by Agreement to the Effective Time, the Company to deliver Shares in the futureshall, subject to the terms hereofand shall cause each of its Subsidiaries to, it is not possible to make a so(A) timely file all tax returns (“Post-called “83(bSigning Returns”) election” with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right required to be issued Shares upon the vesting filed by or on behalf of each such entity and settlement of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or timely pay all taxes due and payable in respect of such Post-Signing Returns that are so filed; (B) submit any later requirement Post-Signing Returns that are to be filed after the date of withholdingthis Agreement to Parent for review prior to filing; provided, being liable promptly to pay however, that any such review shall not delay the filing of such returns; (C) not take any position on such Post-Signing Returns that is inconsistent with past custom and practice unless required by GAAP or applicable law; (D) accrue a reserve in the books and records and financial statements of any such entity at such time times and in such amounts as are in accordance with past practice for all taxes payable by such withholdings are due, entity for which no Post-Signing Return is due prior to the Company in cash Effective Time; (E) promptly notify Parent of any tax-related suit, claim, action, investigation, proceeding or by such other means as may be acceptable to the Committee in its discretionaudit (collectively, “Actions”) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his that is or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares becomes pending against or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment Company or any of its Subsidiaries and not settle or compromise any such Action without Parent’s consent (which consent shall not be unreasonably withheld or delayed); (F) not make, change or rescind any tax election or settle or compromise any material tax liability, other than with Parent’s consent (which consent shall not be unreasonably withheld or delayed); (G) not, with respect to the Company and each of its Subsidiaries, without the prior written consent of Parent, change any tax accounting period or method, file any amended tax return; (H) not surrender any right to claim a refund of taxes. The Participant also authorizes , nor consent to any extension or waiver of the limitations period for the assessment of taxes; (I) not take any action outside the ordinary course of business if taking such action would affect the tax of either the Company or any of its Subsidiaries after the Closing Date, other than with Parent’s consent (which consent shall not be unreasonably withheld or delayed); (J) not change the tax residency of the Company or any of its Subsidiaries; and (K) except with respect to those agreements listed under Section 4.01(n)(ix) of the Company Disclosure Letter, cause all existing tax sharing agreements, tax indemnity obligations and similar agreements, arrangements or practices (“Tax-Related Agreements”) with respect to taxes to which the Company or any of its Subsidiaries is or may be a party or by which the Company or any of its Subsidiaries is or may otherwise be bound (other than Tax-Related Agreements between or among the Company and its Affiliates Subsidiaries) to withhold be terminated as of the Closing Date so that after such amounts from date neither the Company nor any amounts otherwise payable to the Participant, but nothing in this sentence of its Subsidiaries shall be construed as relieving the Participant of have any liability for satisfying his further rights or her obligations under the preceding provisions of this Section 5liabilities thereunder.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists (i) Within 60 days following to the Closing, the Buyer shall allocate the Purchase Price in accordance with Section 1060 of an unfunded and unsecured promise by the Code (the “Allocation”) among the assets of the Company to deliver Shares in the future, subject to the terms hereof, it and any of its Subsidiaries that is not possible to make characterized as a so-called disregarded entity for U.S. federal income Tax purposes (“83(b) election” with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (or any portion thereofDisregarded Subsidiaries”), are subject to and shall deliver the Participant’s promptly paying, or in respect Allocation (along with a copy of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheldappraisals, if any, in respect of this Awardon which the Allocation is based) to the Seller. The Participant shallBuyer and the Seller agree to consult in good faith with regard to the Allocation, at his or her electionprovided that the Seller shall accept the Buyer’s final determination of the Allocation to the extent that the Proposed Allocation is reasonable and consistent with applicable law. The parties acknowledge that the fair market value of the inventory and tangible property, be permitted plant and equipment of the Company and its Disregarded Subsidiaries is approximately equal to satisfy the statutory minimum net book value of such items. Accordingly, Buyer will not allocate an amount of such tax obligations by (i) authorizing the Purchase Price in excess of 110% of the net book value of inventory and tangible property, plant and equipment of the Company and its Disregarded Subsidiaries without the prior written consent of the Seller, which consent shall not be unreasonably withheld (provided, however that the parties acknowledge and agree that the Seller’s failure to withhold consent shall not be deemed unreasonable if such failure is supported by a number third-party appraisal of Shares or (ii) transferring the inventory and/or the tangible property, plant and equipment of the Company and its Disregarded Subsidiaries). For purposes of the Allocation, the Purchase Price shall mean an amount equal to the Purchase Price plus any liabilities of the Company shares of Common Stock owned or the Disregarded Subsidiaries that are treated as assumed liabilities for U.S. federal income Tax purposes. The Seller and the Buyer agree to prepare and file an IRS Form 8594 for or such other form or statement as may be required by the Participantapplicable law, rule or regulation, and any comparable state or local income tax form, in each case, having an aggregate Fair Market Value (measured on a manner consistent with the date such Shares would otherwise be delivered or are transferred Allocation. The Seller and the Buyer shall adhere to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy Allocation for all Tax-related purposes including any federal, foreign, state, county or local requirements with respect to tax withholdings then due income and has committed (and franchise Tax Return filed by holding this Award them after the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect Closing Date, including the determination by the Seller of taxable gain or loss on the sale of the transfer Company and its Subsidiaries and the determination by the Buyer of such shares, or has made other arrangements satisfactory to the Committee its tax basis with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates Subsidiaries. Neither Buyer nor the Seller shall file any Tax Returns or, in a judicial or administrative proceeding, assert or maintain any Tax reporting position that is inconsistent with this Agreement or the Allocation agreed to withhold such amounts from any amounts otherwise payable in accordance with this Agreement, unless required to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5do so by applicable law.

Certain Tax Matters. The Participant expressly acknowledges that because During the period from the date of this Award consists of an unfunded and unsecured promise by Agreement to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, (i) timely file all tax returns ("Post-Signing Returns") required to deliver Shares be filed by or on behalf of each such entity; (ii) timely pay all taxes due and payable in respect of such Post-Signing Returns that are so filed; (iii) accrue a reserve in the future, subject books and records and financial statements of any such entity in accordance with past practice for all taxes payable by such entity for which no Post-Signing Return is due prior to the terms hereofEffective Time; (iv) promptly notify Parent of any suit, it is not possible to make a so-called “83(bclaim, action, investigation, proceeding or audit (collectively, "Actions") election” pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum material amount of tax and not settle or compromise any such Action without Parent's consent; (v) not make any material tax election or settle or compromise any material tax liability, other than with Parent's consent or other than in the ordinary course of business; and (vi) cause all existing tax sharing agreements, tax indemnity obligations by (i) authorizing the Company to withhold a number of Shares and similar agreements, arrangements or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements practices with respect to taxes to which the Company or any of its Subsidiaries is or may be a party or by which the Company or any of its Subsidiaries is or may otherwise be bound to be terminated as of the Closing Date so that after such date neither the Company nor any of its Subsidiaries shall have any further rights or liabilities thereunder. Any tax withholdings then due and has committed (and by holding returns described in this Award the Participant Section 4.01(d) shall be deemed to have committed) to pay complete and correct in cash all tax withholdings required at any later time in respect material respects and shall be prepared on a basis consistent with the past practice of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participantin a manner that does not distort taxable income (e.g. by deferring income or accelerating deductions), but nothing in this sentence provided that no Post-Signing Returns shall be construed as relieving the Participant of filed with any liability for satisfying his or her obligations under the preceding provisions of this Section 5taxing authority without Parent's prior written consent.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists (a) In the event (i) of an unfunded and unsecured promise a Final Determination (as defined below) that, due to any reason (including by the Company to deliver Shares in the future, subject to reason of any of the terms hereofof Series A Preferred Stock) other than an act or failure to act of any Noteholder (including by reason of the application of IRC Section 246(c) or IRC Section 246A) or any Noteholder being other than a corporation, it dividends paid or accrued or deemed paid or accrued on the December 2001 Preferred Stock are not eligible for the dividends received deduction provided under the Dividends Deduction Laws (the "DIVIDENDS-RECEIVED DEDUCTION"), (ii) any Dividends Deduction Law or any similar or corresponding state or local law is not possible amended to make a soreduce or eliminate or otherwise limit the Dividends-called “83(bReceived Deduction available to any Noteholder or (iii) election” any dividend with respect to this Award. The Participant expressly acknowledges and agrees the December 2001 Preferred Stock does not constitute, in whole or in part, a dividend for federal income tax purposes or such dividend is subject to Section 1059 of the IRC (in either case, an "EXCESS DISTRIBUTION"), the Company shall pay to Noteholders with respect to each such dividend payment, no later than the Payment Date (as defined below), an additional payment (the "GROSS-UP PAYMENT") such that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum net amount of such Gross-Up Payment received and retained by such Noteholder after payment by such Noteholder of any federal, state and local income tax obligations by payable with respect to such Gross-Up Payment shall equal, in the case of (i) authorizing the Company to withhold a number of Shares or (ii) transferring to above, the Company shares of Common Stock owned by difference between (x) the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or and local requirements income tax payable by such Noteholder with respect to such dividend in its taxable year in which the dividend was paid or deemed paid and (y) the federal, state, and local income tax withholdings then due which would have been payable by such Noteholder in its taxable year in which the dividend was paid or deemed paid if the events described in (i) or (ii) had not occurred and has committed in the case of (and iii) above, an amount which, when taken together with the aggregate distributions (whether treated as dividends or Excess Distributions for federal income tax purposes) paid or deemed paid to such Noteholder during any taxable year, would cause such Noteholders' net yield in dollars (after taking into effect the federal income tax consequences of treating the Excess Distributions received by holding this Award such Noteholder as capital gain received upon the Participant shall be deemed to have committedtaxable sale or exchange of the December 2001 Preferred Stock) to pay be equal to the net yield in cash all tax withholdings required at any later time in respect dollars which would have been received by such Noteholder had none of the transfer distributions paid or deemed paid to such Noteholder during such taxable year constituted Excess Distributions, in all cases together with any interest or penalties actually payable by such Noteholder to the IRS or any other applicable taxing authority by reason of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5events.

Certain Tax Matters. (a) The Participant expressly acknowledges that because this Award consists Stockholders shall be responsible, at their sole cost and expense, for the preparation and filing of an unfunded all federal and unsecured promise by state income Tax Returns of OPM for all taxable periods ending on or before the Company to deliver Shares in Closing Date (the future, subject to "Pass Through Returns") and for the terms hereof, it is not possible to make a so-called “83(b) election” payment of all Taxes shown on the Pass Through Returns or otherwise payable with respect to this Awardall such periods. The Participant expressly acknowledges Pass Through Returns shall be prepared in a manner which is consistent with past practices of OPM, except as otherwise required by Applicable Law. Income, gain, loss, deduction and agrees that credit of OPM shall be allocated between the Participant’s rights hereunder, including Pass Through Returns and any succeeding taxable period on the right to be issued Shares upon basis of a closing of the vesting and settlement books of this Award (or any portion thereof), are subject to OPM at the Participant’s promptly paying, or in respect close of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured business on the date preceding the Closing Date in accordance with Section 1362(e)(6)(D) of the Code. The Buyer shall promptly notify the Stockholders following receipt by the Buyer of any notice of audit, examination or other proceeding (a "Tax Proceeding") with respect to any Pass Through Return, and the Stockholders shall retain the sole right to control any such Shares Tax Proceeding, provided that the Buyer may participate in such Tax Proceeding at its own expense, and provided, further, that ATS may control any aspects of any such Tax Proceeding relating to any item for which ATS is or may be liable. The Stockholders shall retain the sole right to file any amended Pass Through Return. Notwithstanding the foregoing, the Stockholders may not settle or otherwise agree to the resolution of any Tax Proceeding or file any such amended Pass Through Return without in each case obtaining the prior written consent of ATS such consent will not be unreasonably conditioned or withheld, if, as a result of such settlement or resolution or the filing of any such amended Pass Through Return, OPM's tax basis in any of its assets for any period after the Closing Date would be reduced or OPM's tax position after the Closing Date would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5adversely affected.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists of an unfunded is solely responsible for satisfying and unsecured promise by paying all taxes arising from or due in connection with the Award. The Company to deliver Shares in the future, subject to the terms hereof, it is not possible to make a so-called “83(b) election” will have no liability with respect to this Awardthe foregoing. The Notwithstanding the foregoing, if the Participant expressly acknowledges and agrees that is, or at any time prior to the Participant’s rights hereunderVesting Date becomes, including the right an Employee, no Shares will be delivered pursuant to be issued Shares upon the vesting and settlement of this Award (or any portion thereof), are subject to unless and until the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, Participant shall have remitted to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company check an amount in cash sufficient to satisfy any federal, statestate or local withholding tax requirements or tax payments, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee Administrator with respect to the payment of such taxes. The Administrator may, in its sole discretion, hold back Shares from an award or permit the Participant also authorizes to tender previously owned shares of Stock in satisfaction of tax withholding or tax payment requirements (but not in excess of the Company and its Affiliates to withhold such amounts from any amounts otherwise payable applicable minimum statutory withholding rate). Notwithstanding anything to the Participant, but nothing contrary in this sentence Award, if at the time of the Participant’s termination of Service, the Participant is a “specified employee,” as defined below, any and all amounts payable under this Award on account of such separation from service that constitute deferred compensation and would (but for this provision) be payable within six (6) months following the date of termination, shall instead be paid on the next business day following the expiration of such six (6) month period or, if earlier, upon the Participant’s death; except (A) to the extent of amounts that do not constitute a deferral of compensation within the meaning of Treasury Regulation Section 1.409A-1(b) or (B) other amounts or benefits that are not subject to the requirements of Section 409A. For purposes of this Award, all references to “termination of service” and correlative phrases shall be construed to require a “separation from service” (as relieving defined in Section 1.409A-1(h) of the Participant Treasury Regulations after giving effect to the presumptions contained therein), and the term “specified employee” means an individual determined by the Company to be a specified employee under Treasury Regulation Section 1.409A-1(i). In no event shall the Company have any liability relating to the failure or alleged failure of any liability for satisfying his payment or her obligations benefit under this Agreement to comply with, or be exempt from, the preceding provisions requirements of this Section 5.409A. To the extent that discretion may be exercised by the Administrator regarding the treatment of the Award in connection with a Change of Control or Covered Transaction, it shall not be exercised if it would cause the Award to violate the terms of Section 409A.

Certain Tax Matters. The Participant expressly acknowledges During the period from the date of this Agreement to the Effective Time, (i) the Company and each of its Subsidiaries shall timely file all tax returns (“Post-Signing Returns”) required to be filed by each such entity (after taking into account any extensions), and all Post-Signing Returns shall be complete and correct in all material respects and shall be prepared on a basis consistent with the past practice of the Company and in a manner that because this Award consists does not distort taxable income (e.g., by deferring income or accelerating deductions); provided that no Post-Signing Returns shall be filed with any taxing authority without Parent’s written consent, which consent shall not be unreasonably witheld or delayed; (ii) the Company and each of an unfunded its Subsidiaries shall timely pay all taxes due and unsecured promise payable; (iii) the Company will accrue a reserve in its books and records and financial statements in accordance with GAAP and past practice for all taxes payable by the Company to deliver Shares in the future, subject or any of its Subsidiaries for which no Post-Signing Return is due prior to the terms hereofEffective Time; (iv) the Company and each of its Subsidiaries will promptly notify Parent of any suit, it is not possible to make a so-called “83(b) election” claim, action, investigation, proceeding or audit pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement material amount of withholdingtax and will not settle or compromise any such suit, being liable promptly to pay at such time as such withholdings are dueclaim, to action, investigation, proceeding or audit without Parent’s prior written consent, which consent shall not be unreasonably withheld or delayed; (v) none of the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereofof its Subsidiaries will make or change any tax election without Parent’s consent, which consent shall not be unreasonably withheld or delayed; and (vi) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and each of its Affiliates to withhold such amounts from any amounts otherwise payable to Subsidiaries will retain all books, documents and records necessary for the Participant, but nothing in this sentence shall be construed as relieving the Participant preparation of any liability for satisfying his or her obligations under the preceding provisions of this Section 5tax returns and reports and tax audits.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists of an unfunded (a) Seller will cause to be prepared and unsecured promise by the Company filed all Income Tax Returns (including any consolidated, unitary or combined Income Tax Returns) required to deliver Shares in the future, subject to the terms hereof, it is not possible to make a so-called “83(b) election” be filed with respect to this Awardany Transferred Company for any taxable period ending on or before the Closing Date (any such period, a “Pre-Closing Period”). The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right Buyer will cause to be issued Shares upon the vesting prepared and settlement of this Award filed all Tax Returns other than Income Tax Returns (or any portion thereof)such Tax Returns, are subject to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion“Non-Income Tax Returns”) all taxes required to be withheldfiled with respect to any Transferred Company for any Pre-Closing Tax Period that are due after the Closing; provided, if anyhowever, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by that (i) authorizing drafts of any such Non-Income Tax Returns shall be provided to Seller for its review and comment prior to filing and the Company parties will use all reasonable efforts to withhold a number resolve any dispute, but if such dispute cannot be resolved by the parties within fifteen (15) days after Buyer receives notice of Shares or such dispute, it shall be referred to the Selected Accountants, (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant Non-Income Tax Returns shall be deemed prepared in a manner consistent with past practice, except as otherwise required by applicable Law or change in circumstances, and (iii) Seller may assume responsibility for preparing any such Non-Income Tax Returns upon notice to have committedBuyer at least thirty (30) to pay in cash all tax withholdings required at days before any later time in respect of such Non-Income Tax Return is due. Following the transfer of such sharesClosing, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company Seller will pay, and will indemnify and hold harmless Buyer and its Affiliates to withhold such amounts from and against, on a Net After-Tax Basis, (i) any amounts otherwise payable Taxes imposed upon any Transferred Company for any Pre-Closing Period (except to the Participantextent that the liability for such Taxes was included in the calculation of Closing Working Capital) and (ii) any Taxes allocable to a Pre-Closing Period or the portion of a Straddle Period ending on the Closing Date resulting from the Restructurings or any check-the-box election made by Seller or its Affiliates for the French Transferred Company or any foreign Transferred Company; provided, but nothing in this sentence shall be construed however, that Buyer will pay, and will indemnify and hold harmless Seller and its Affiliates from and against, on a Net After-Tax Basis, any such Taxes imposed as relieving the Participant a result of any action outside the ordinary course of business after the Closing effected by Buyer or its Affiliates (including, after the Closing, the Transferred Companies) or any Tax election made by Buyer or its Affiliates (including, after the Closing, the Transferred Companies), except for any such election directed by Seller. Neither Buyer nor any of its Affiliates (including, after the Closing, the Transferred Companies) shall amend any Tax Return for a Pre-Closing Period if such amendment could reasonably be expected to affect Seller’s liability for satisfying his Taxes for any Pre-Closing Period or her obligations under the preceding provisions portion of this Section 5a Straddle Period ending on the Closing Date pursuant to Sections 9.1(a) or (b) or the Tax liability of Seller or its Affiliates (other than the Transferred Companies) for any period without Seller’s prior consent, which consent shall not be unreasonably delayed or withheld.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists (a) In the event (i) of an unfunded and unsecured promise a Final Determination (as defined below) that, due to any reason (including by the Company to deliver Shares in the future, subject to reason of any of the terms hereofof Preferred Stock) other than an act or failure to act of any Noteholder (including by reason of the application of IRC Section 246(c) or IRC Section 246A) or any Noteholder being other than a corporation, it dividends paid or accrued or deemed paid or accrued on the Preferred Stock are not eligible for the dividends received deduction provided under the Dividends Deduction Laws (the "DIVIDENDS-RECEIVED DEDUCTION"), (ii) any Dividends Deduction Law or any similar or corresponding state or local law is not possible amended to make a soreduce or eliminate or otherwise limit the Dividends-called “83(bReceived Deduction available to any Noteholder or (iii) election” any dividend with respect to this Award. The Participant expressly acknowledges and agrees the Preferred Stock does not constitute, in whole or in part, a dividend for federal income tax purposes or such dividend is subject to Section 1059 of the IRC (in either case, an "EXCESS DISTRIBUTION"), the Company shall pay to Noteholders with respect to each such dividend payment, no later than the Payment Date (as defined below), an additional payment (the "GROSS-UP PAYMENT") such that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum net amount of such Gross-Up Payment received and retained by such Noteholder after payment by such Noteholder of any federal, state and local income tax obligations by payable with respect to such Gross-Up Payment shall equal, in the case of (i) authorizing the Company to withhold a number of Shares or (ii) transferring to above, the Company shares of Common Stock owned by difference between (x) the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or state and local requirements income tax payable by such Noteholder with respect to such dividend in its taxable year in which the dividend was paid or deemed paid and (y) the federal, state and local income tax withholdings then due which would have been payable by such Noteholder in its taxable year in which the dividend was paid or deemed paid if the events described in (i) or (ii) had not occurred and has committed in the case of (and iii) above, an amount which, when taken together with the aggregate distributions (whether treated as dividends or Excess Distributions for federal income tax purposes) paid or deemed paid to such Noteholder during any taxable year, would cause such Noteholders' net yield in dollars (after taking into effect the federal income tax consequences of treating the Excess Distributions received by holding this Award such Noteholder as capital gain received upon the Participant shall be deemed to have committedtaxable sale or exchange of Preferred Stock) to pay be equal to the net yield in cash all tax withholdings required at any later time in respect dollars which would have been received by such Noteholder had none of the transfer distributions paid or deemed paid to such Noteholder during such taxable year constituted Excess Distributions, in all cases together with any interest or penalties actually payable by such Noteholder to the IRS or any other applicable taxing authority by reason of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5events.

Certain Tax Matters. The Participant expressly acknowledges Seller shall permit Purchaser to review and comment on each Tax Return (a) of any Seller that because is filed after the date of this Award consists of an unfunded and unsecured promise by the Company to deliver Shares in the future, subject to the terms hereof, it Agreement if that Tax Return is not possible to make a so-called “83(b) election” filed with respect to any period that includes, or any event that occurs on, any date between February 2, 2005 and the Closing Date, and (b) of any Foreign Entity that is filed after the date of this AwardAgreement, regardless of the period covered by the Tax Return. The Participant expressly acknowledges Seller shall provide to Purchaser for its review and agrees that the Participant’s rights hereundercomment all income Tax Returns, including the right German federal and German trade Tax Returns and any similar returns to be issued Shares upon filed in any jurisdiction, as soon as they become available, even prior to May 15, 2007. Seller and Purchaser shall work to compile by May 15, 2007 a list of all other applicable Tax Returns which will be made available to Purchaser; provided, however, that Purchaser shall make the vesting and settlement of this Award (or any portion thereof), are subject final determination as to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, which Tax Returns it shall be permitted to satisfy the statutory minimum amount review and comment on. Purchaser shall review such Tax Returns promptly such that they can be timely filed, and Seller shall make such revisions to such Tax Returns as are reasonably requested by Purchaser. Seller shall promptly give written notice to Purchaser of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participantany inquiry, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, stateaudit, or local requirements other proceeding by any Taxing authority of (x) any Seller if such inquiry, audit, or other proceeding is with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such sharesperiod that includes, or has made other arrangements satisfactory any event that occurs on, any date between February 2, 2005 and the Closing Date or (y) any Foreign Entity for any period. Seller and Purchaser shall cooperate fully, as and to the Committee extent reasonably requested by the other Party, in connection with any such inquiry, audit, or other proceeding, and Purchaser shall have the sole right to direct the response to the inquiry, audit, or other proceeding if the Tax at issue is a Working Capital Obligation or is with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5Foreign Entity.

Certain Tax Matters. The Participant expressly acknowledges that because (i) During the period from the date of this Award consists of an unfunded and unsecured promise by Agreement to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, (A) timely file all tax returns ("Post-Signing Returns") required to deliver Shares be filed by or on behalf of each such entity; (B) timely pay all taxes due and payable; (C) accrue a reserve in the futurebooks and records and financial statements of any such entity in accordance with past practice for all taxes payable but not yet due; (D) promptly notify Parent of any suit, subject to the terms hereofclaim, it is not possible to make a so-called “83(baction, investigation, proceeding or audit (collectively, "Actions") election” pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement material amount of withholding, being liable promptly to pay at tax and not settle or compromise any such time as Action without Parent's consent (such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required consent not to be unreasonably withheld, if anydelayed or conditioned); (E) not make or change any material tax election or settle or compromise any material tax liability, other than with Parent's consent (such consent not to be unreasonably withheld, delayed or conditioned) or other than in respect the ordinary course of this Award. The Participant shallbusiness; and (F) cause all existing tax sharing agreements, at his tax indemnity obligations and similar agreements, arrangements or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements practices with respect to taxes to which the Company or any of its Subsidiaries is or may be a party or by which the Company or any of its Subsidiaries is or may otherwise be bound to be terminated as of the Closing Date so that after such date neither the Company nor any of its Subsidiaries shall have any further rights or liabilities thereunder. Any tax withholdings then due and has committed (and by holding returns described in this Award the Participant Section 4.01(d) shall be deemed to have committed) to pay complete and correct in cash all tax withholdings required at any later time in respect material respects and shall be prepared on a basis consistent with the past practice of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5Company.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists of an unfunded and unsecured promise by the Company to deliver Shares in the future, subject to the terms hereof, it is not possible to make a so-called “83(b) election” with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect of any later requirement of withholding, withholding being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 56.

Certain Tax Matters. The Participant expressly acknowledges that because (i) During the period from the date of this Award consists of an unfunded and unsecured promise by Agreement to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, (A) timely file all tax returns ("Post-Signing Returns") required to deliver Shares be filed by or on behalf of each such entity; (B) timely pay all taxes due and payable in respect of such Post-Signing Returns that are so filed; (C) accrue a reserve in the future, subject books and records and financial statements of any such entity in accordance with past practice for all taxes payable by such entity for which no Post-Signing Return is due prior to the terms hereofEffective Time; (D) promptly notify Parent of any suit, it is not possible to make a so-called “83(bclaim, action, investigation, proceeding or audit (collectively, "Actions") election” pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement material amount of withholdingtax and not settle or compromise any such Action without Parent's consent; (E) not make any material tax election or settle or compromise any material tax liability, being liable promptly other than with Parent's consent or other than in the ordinary course of business; and (F) cause all existing tax sharing agreements, tax indemnity obligations and similar agreements, arrangements or practices with respect to pay at such time as such withholdings are due, taxes to which the Company in cash (or any of its Subsidiaries is or may be a party or by such other means as which the Company or any of its Subsidiaries is or may otherwise be acceptable to the Committee in its discretion) all taxes required bound to be withheld, if any, in respect terminated as of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of Closing Date so that after such tax obligations by (i) authorizing date neither the Company to withhold nor any of its Subsidiaries shall have any further rights or liabilities thereunder. Any tax returns described in this Section 4.01(d) shall be complete and correct in all material respects and shall be prepared on a number basis consistent with the past practice of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant provided that no Post-Signing Returns shall be deemed to have committed) to pay in cash all tax withholdings required at filed with any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5taxing authority without Parent's prior written consent.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists (a) Except as set forth in Schedule 3.14: (i) giving effect to all extensions obtained, each of an unfunded Holdings, Allright and unsecured promise the Subsidiaries has timely filed (or there has been timely filed on its behalf) all Tax Returns (as defined below) required to be filed by it, and all such Tax Returns are complete in all material respects, has paid (or there has been paid on its behalf) all Taxes shown thereon to be due, other than such Taxes as are being contested in good faith, and has established reserves in accordance with generally accepted accounting principles for the Company to deliver Shares in the future, subject payment of all Taxes for periods subsequent to the terms hereofperiods covered by such Tax Returns; (ii) no material deficiency, it is assessment or other formal claim for any material Taxes has been asserted by a Tax authority against Holdings, Allright or any of the Subsidiaries that has not possible to make a so-called “83(bbeen fully paid, accrued or finally settled; (iii) election” none of Holdings, Allright or any of the Subsidiaries has been notified that any Tax Returns are currently the subject of any audit or other administrative proceeding or court proceeding ("Audit") by any Tax authority; (iv) no extension, waiver or comparable consent regarding the application of the statute of limitations with respect to this Awardany Taxes or Tax Returns has been given by or on behalf of Holdings, Allright or any of the Subsidiaries and is currently in effect; and (v) the income Tax Returns of Holdings, Allright and the Subsidiaries for the taxable periods ending on or before June 30, 1992 have been examined by the appropriate Tax authority (or the applicable statute of limitations for the assessment of Taxes for such periods has expired) and a list of Audits commenced and not yet completed with respect to Holdings, Allright and the Subsidiaries is set forth on Schedule 3.14. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement (b) For purposes of this Award (or any portion thereof)Agreement, are subject to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing "Taxes" (including, with correlative meaning, the Company to withhold a number of Shares term "Tax") shall mean all taxes, charges, fees, levies, penalties or (ii) transferring to the Company shares of Common Stock owned other assessments imposed by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, local or local requirements foreign governmental authority, including, but not limited to, income, gross receipts, commercial rent and occupancy, excise, property, sales, transfer, franchise, payroll, withholding, social security or other taxes, including any interest, penalties or additions attributable thereto and (ii) "Tax Return" shall mean any return, report, information return or other document (including any related or supporting information) with respect to tax withholdings then due Taxes. (c) To the knowledge of Holdings, the Indemnification Agreement, dated as of October 31, 1996, by and has committed (among Nedinco Delaware Incorporated, Hang Lung Development Company Ltd., Allright Holdings LLC and Allright, and the Letter of Credit, made by HSBC Trade Services on October 29, 1996 related thereto, are each valid and binding agreements, enforceable against each party thereto in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency or other similar laws relating to or affecting creditors' rights generally and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxesgeneral equity principles. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5.3.15

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists of an unfunded and unsecured promise by If the Company Selected Dealers, among themselves or with the Underwriters, are deemed to deliver Shares in the futureconstitute a partnership for Federal income tax purposes, subject to the terms hereof, it is not possible to make a so-called “83(b) election” with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right then we elect to be issued Shares upon excluded from the vesting application of Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986, as amended, and settlement agree not to take any position inconsistent with that election. You are hereby authorized, in your discretion, to execute and file on our behalf such evidence of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means election as may be acceptable to required by the Committee in its discretion) all taxes required to Internal Revenue Service. In connection with the Offering, we shall be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum liable for your proportionate amount of any tax, claim, demand or liability that may be asserted against us alone or against one or more Selected Dealers participating in such tax obligations by (i) authorizing Offering, or against you or the Company to withhold a number Underwriters, based upon the claim that the Selected Dealers, or any of Shares them, constitute an association, an unincorporated business or (ii) transferring to the Company shares of Common Stock owned by the Participantother entity, including, in each case, having our proportionate amount of any expense incurred in defending against any such tax, claim demand or liability. By signing this Agreement we confirm that our subscription to, or our acceptance of any reservation of, any Securities pursuant to an aggregate Fair Market Value Offering shall constitute (measured i) acceptance of and agreement to the terms and conditions of this Agreement (as supplemented or amended pursuant to Section 4), together with and subject to any supplementary terms and conditions contained in any Written Communication from you in connection with such Offering, all of which shall constitute a binding agreement between us and you, individually or as representative of any Underwriters, (ii) confirmation that our representations and warranties set forth in Section 3 hereof are true and correct at that time, (iii) confirmation that our agreements set forth in Sections 2 and 3 hereof have been and will be fully performed by us to the extent and at the times required thereby and (iv) acknowledgment that we have requested and received from you sufficient copies of the final prospectus with respect to such Offering in order to comply with our undertakings in Section 3(a) hereof. Very truly yours, (Name of Firm) By: Print Name Title Confirmed as of the date first above written: SANDLER X’XXXXX & PARTNERS, L.P. BY: SANDLER X’XXXXX & PARTNERS CORP., THE SOLE GENERAL PARTNER [Name] [Title] XXXXXXX X XXXX XX XXXX-XX XXXXXX , 0000 SANDLER X’XXXXX & PARTNERS, L.P. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED XXXXXXXXX & COMPANY, INC. C/O SANDLER X’XXXXX & PARTNERS, L.P. AS REPRESENTATIVE OF THE SEVERAL AGENTS 1251 Avenue of the Xxxxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Re: Proposed Public Offering by Northfield Bancorp, Inc. The undersigned understands that Sandler X’Xxxxx & Partners, L.P. (“Sandler X’Xxxxx”), as representative of the several Agents (as defined below), Xxxxxx, Xxxxxxxx & Company, Incorporated (“Xxxxxx Xxxxxxxx”) and Jefferies & Company, Inc. (“Jefferies” and together with Sandler X’Xxxxx and Xxxxxx Xxxxxxxx, the “Agents”), proposes to enter into an Agency Agreement (the “Agency Agreement”) with Northfield Bancorp, Inc., a Delaware corporation (the “Company”), Northfield Bancorp, Inc., a federally-chartered stock holding company (the “Mid-Tier”), Northfield Bancorp, MHC, a federally-chartered mutual holding company (the “MHC”) and Northfield Bank, a federally-chartered stock savings bank (the “Bank” and, together with the Company, the Mid-Tier and the MHC, the “Northfield Parties”), providing for the public offering (the “Public Offering”) by the Agents, of up to 39,100,000 shares (the “Shares”) of the Company’s common stock, par value $0.01 per share (the “Stock”). In recognition of the benefit that the Public Offering will confer upon the undersigned, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with Sandler X’Xxxxx that, during the period beginning on the date such Shares would otherwise be delivered or are transferred of the final prospectus relating to the subscription offering (the “Subscription Offering Prospectus”) and ending 90 days after the Closing Date of the Public Offering (the “Restricted Period”), the undersigned will not, without the prior written consent of Sandler X’Xxxxx, directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, or otherwise dispose of or transfer any shares of the Company’s Stock, the common stock of Mid-Tier (“Mid-Tier Stock”) or any securities convertible into or exchangeable or exercisable for Stock or Mid-Tier Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition, or file any registration statement under the Securities Act of 1933, as applicableamended, with respect to any of the foregoing, (ii) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (enter into any swap or any portion thereofother agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Stock or Mid-Tier Stock, whether any such swap or transaction is to be settled by delivery of Stock, Mid-Tier Stock or other securities, in cash or otherwise or (iii) unless publicly announce an intention to do any of the foregoing. If either (i) during the period that begins on the date that is 15 calendar days plus three (3) business days before the last day of the Restricted Period and until ends on the Participant last day of the Restricted Period, the Company issues an earnings release or the person then holding this Award has remitted material news or a material event relating to the Company an amount in cash sufficient to satisfy any federal, stateoccurs, or local requirements with respect (ii) prior to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect expiration of the transfer Restricted Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of such sharesthe Restricted Period, the restrictions set forth herein will continue to apply until the expiration of the date that is 15 calendar days plus three (3) business days after the date on which the earnings release is issued or has made other arrangements satisfactory the material news or event related to the Committee with respect to the payment of such taxesCompany occurs. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant promptly notify Sandler X’Xxxxx of any liability for satisfying his earnings releases, news or her obligations under events that may give rise to an extension of the preceding provisions of this Section 5Restricted Period.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists of an unfunded and unsecured promise by Notwithstanding anything herein to the contrary, the Company shall have the right to deliver Shares in the futurededuct and withhold from any payment, subject to the terms hereof, it is not possible to make a so-called “83(b) election” dividend or distribution made with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including Preferred Shares (or upon the right redemption of the Preferred Shares or Alternative Preference Shares or the issuance of Class A Shares or Alternative Preference Shares upon conversion of the Preferred Shares) such amounts as are required to be issued Shares upon deducted or withheld with respect to the vesting making of such payment or distribution (or issuance) under any applicable Tax law; provided that, prior to making any such deduction or withholding the Company shall provide notice to Purchaser of its intent to withhold and settlement shall provide Purchaser with a reasonable opportunity to eliminate, reduce or otherwise mitigate any such deduction or withholding requirement and shall cooperate with the Purchaser in obtaining any available treaty relief. To the extent that any amounts are so deducted or withheld, such deducted or withheld amounts shall be treated for all purposes of this Award (or any portion thereof), are subject Agreement as having been paid to the Participant’s promptly paying, person in respect of which such deduction or withholding was made. In the event the Company previously remitted any amounts to a Governmental Entity on account of Taxes required to be deducted or withheld in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash payment or distribution (or by such other means as may be acceptable to the Committee in its discretiondeemed distribution) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his on any shares without making a corresponding deduction or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time withholding from amounts distributable in respect of the transfer of such applicable shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates shall be entitled to withhold offset any such amounts from against any amounts otherwise payable in respect of such shares (or the issuance of Class A Shares or Alternative Preference Shares upon conversion of the Preferred Shares). Notwithstanding anything herein or in the Articles of Amendment to the Participantcontrary, but nothing the Company has no intent under applicable law (including publicly available administrative statements) in this sentence shall be construed as relieving effect on the Participant date hereof to make any deduction or withholding for Taxes in respect of a conversion of the Preferred Shares into Class A Shares pursuant to Sections 5(a) and 5(c) of the Series 4 Articles of Amendment. The Company further agrees to cooperate with the Purchaser with regard to any liability for satisfying his other tax reporting or her obligations under compliance matters reasonably requested by the preceding provisions of this Section 5Purchaser in connection with the investment contemplated hereby.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists of (a) In consideration for the Purchase Price and the Assumed Liabilities, within sixty (60) days after the Purchase Price is finally determined pursuant to Section 2.05, Purchaser shall prepare and deliver to Sellers an unfunded allocation statement (the “Allocation”) allocating the Purchase Price (and unsecured promise by the Company to deliver Shares in the future, subject Assumed Liabilities to the terms hereofextent properly taken into account under the Code) among the Purchased Assets in accordance with Section 1060 of the Code and the Treasury Regulations promulgated thereunder (and any similar provision of state, it is not possible local or foreign Law, as appropriate). Sellers shall provide the Allocation to make NRG for review and comment and shall send Purchaser a so-called “83(bwritten notice of any objections to the Allocation within a commercially reasonable period of time following Purchaser’s delivery of the Allocation. Sellers, NRG and Purchaser shall work in good faith to resolve any disputes relating to the Allocation. If Sellers, NRG and Purchaser are unable to resolve any such dispute within twenty (20) election” with respect days after Purchaser’s receipt of objections by Sellers and/or NRG, any remaining disputes shall be submitted to this Awarda nationally recognized independent public accounting firm as mutually agreed to by Sellers, NRG and Purchaser. The Participant expressly acknowledges and agrees that the Participant’s rights Allocation, as finally determined hereunder, including the right shall be adjusted to be issued Shares upon the vesting and settlement of this Award (or reflect any portion thereof), are subject adjustment to the Participant’s promptly payingPurchase Price provided under this Agreement as mutually agreed by Purchaser and Sellers (and agreed to by NRG). Purchaser and Sellers shall file all Tax Returns (including, but not limited to, Internal Revenue Service Form 8594) consistent with the Allocation, as finally determined hereunder (as adjusted in accordance with this Section 7.03(a)). Neither Purchaser nor Sellers shall take any Tax position inconsistent with such Allocation (as adjusted in accordance with this Section 7.03(a)) except as required, after using good faith efforts to support the Allocation in any applicable challenge by a Governmental or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are dueRegulatory Authority, to the Company in cash (settle a dispute with a Governmental or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee Regulatory Authority with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5Allocation.

Certain Tax Matters. The Participant expressly acknowledges During the period from the date of this Agreement to the Effective Time, (i) the Company and each of its Subsidiaries shall timely file all tax returns required to be filed before the Closing (after taking into account 47 any extensions) by or on behalf of each such entity (“Post-Signing Returns”), and all Post-Signing Returns shall be complete and correct and shall be prepared on a basis consistent with the past practices of the Company and its Subsidiaries and in a manner that because this Award consists does not distort taxable income (e.g., by deferring income or accelerating deductions); provided that no Post-Signing Returns shall be filed with any taxing authority without Parent’s written consent, which shall not be unreasonably withheld, conditioned or delayed; (ii) the Company and each of an unfunded its Subsidiaries shall timely pay all taxes due and unsecured promise payable in respect of such Post-Signing Returns that are so filed or otherwise owed by each such entity; (iii) the Company will accrue a reserve in its books and records and financial statements in accordance with GAAP and past practice for all taxes payable by the Company to deliver Shares in the future, subject or any of its Subsidiaries for which no Post-Signing Return is due prior to the terms hereofEffective Time; (iv) the Company shall promptly notify Parent of any suit, it is not possible to make a so-called claim, action, assessment, investigation, proceeding or audit (collectively, “83(btax actions”) election” pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement tax and will not settle or compromise any such tax action without Parent’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed; (v) none of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may any of its Subsidiaries will make, revoke or change any material tax election without Parent’s prior written consent, which shall not be acceptable to the Committee in its discretion) all taxes required to be unreasonably withheld, if any, in respect of this Award. The Participant shall, at his conditioned or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by delayed; and (ivi) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and each of its Affiliates to withhold such amounts from any amounts otherwise payable to Subsidiaries will retain all books, documents and records necessary for the Participant, but nothing in this sentence shall be construed as relieving the Participant preparation of any liability for satisfying his or her obligations under the preceding provisions of this Section 5tax returns and reports and tax audits.

Certain Tax Matters. The Participant expressly acknowledges that because (i) During the period from the date of this Award consists of an unfunded and unsecured promise by Agreement to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to deliver Shares (A) timely file all material tax returns (taking into account any applicable extensions) required to be filed by or on behalf of each such entity (“Post-Signing Returns”); (B) timely pay all material taxes due and payable; (C) accrue a reserve in the futurebooks and records and financial statements of any such entity in accordance with past practice for all taxes payable but not yet due; (D) promptly notify Parent of any material suit, subject to the terms hereofclaim, it is not possible to make a so-called action, investigation, audit or similar proceeding (collectively, “83(bActions”) election” pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement amount of withholdingtax and not settle or compromise any tax liability in excess of $10 million for individual claims, being liable promptly or $50 million in the aggregate, without Parent’s prior written consent, which shall not be unreasonably withheld; (E) not make any material tax election, other than with Parent’s prior written consent or other than in the ordinary course of business consistent with past practice; and (F) cause all existing tax sharing agreements, tax indemnity agreements and similar agreements, arrangements or practices to pay at such time as such withholdings are due, to which the Company in cash (or any of its Subsidiaries is or may be a party or by such other means as which the Company or any of its Subsidiaries is or may otherwise be acceptable to the Committee in its discretion) all taxes required bound to be withheld, if any, in respect terminated as of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of Closing Date so that after such tax obligations by (i) authorizing date neither the Company to withhold a number nor any of Shares its Subsidiaries shall have any further rights or (iiliabilities thereunder. Any tax returns described in this Section 4.01(d) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay complete and correct in cash all tax withholdings required at any later time in respect material respects and shall be prepared on a basis consistent with the past practice of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to in a manner that does not distort taxable income, including by deferring income or accelerating deductions. The Company shall notify Parent upon the Participant, but nothing in this sentence shall be construed as relieving the Participant filing of any liability for satisfying his or her obligations under the preceding provisions of this Section 5such material tax return and shall make such tax returns available to Parent.

Certain Tax Matters. The Participant expressly acknowledges parties intend that because all payments required by this Award consists Separation Agreement will be exempt from or comply with Section 409A of an unfunded the Internal Revenue Code of 1986 (“Section 409A”), and unsecured promise by this Separation Agreement shall be interpreted and administered accordingly. Each installment of the Company payments provided under this Separation Agreement shall be a separate payment for the purposes of Section 409A. Because the Executive is a “specified Executive” for purposes of Section 409A, any payment under this Separation Agreement that is subject to deliver Shares Section 409A shall not be made earlier than six months after the Separation Date, at which time the Executive shall receive a catch-up payment of the amounts that otherwise would have been paid in the futureabsence of such six-month delay (provided, subject if Executive dies after the Separation Date but before any payment has been made, such remaining payments that were or could have been delayed will be paid to the terms hereof, it is not possible Executive’s estate without regard to make a sosuch six-called “83(b) election” month delay). The preceding sentence will apply notwithstanding any other provisions in the Separation Agreement that permit or require payment at an earlier time. If the Executive reasonably determines that the Executive will incur additional tax or interest expense under Section 409A with respect to this Award. The Participant expressly acknowledges and agrees any previously unpaid amount or benefit that the Participant’s rights hereunder, including the right is required to be issued Shares upon paid or provided in accordance with this Agreement, and that such additional tax and interest expense can be avoided by an amendment of the vesting and settlement provisions of this Award (or any portion thereof)Separation Agreement that apply to such previously unpaid amounts and benefits, are subject to the Participant’s promptly paying, or in respect Executive may furnish the proposed text of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, amendment to the Company for its consideration. If the Company determines that the amendment proposed by the Executive will have the effects contemplated by the Executive and would have no adverse effect (economically or otherwise) on the Company (or, if the Company is reimbursed by the Executive for any such adverse effect in cash (an amount reasonable determined by the Company), then the Company will either agree to such amendment in the form proposed by the Executive or by agree to negotiate in good faith with the Executive on changes to the language of such proposed amendment. Notwithstanding anything to the contrary contained herein, the Executive will be solely responsible for his own tax liabilities, including without limitation, income, employment, social security, or other means as taxes, penalties or interest that may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations incurred by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements him with respect to tax withholdings then due the payments and has committed (benefits he receives or is entitled to receive pursuant to this Separation Agreement, including, without limitation, taxes and by holding this Award other amounts that may be payable under Section 409A, and the Participant Company makes no representations and shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, no responsibility or has made other arrangements satisfactory to the Committee liability with respect to the payment of any such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5amounts.

Certain Tax Matters. The Participant expressly acknowledges that because Payments and benefits under this Award consists Agreement shall be made and provided without regard to whether the deductibility of such payments (or any other payments or benefits to or for your benefit) would be limited or precluded by Section 280G ("Section 280G") of the U.S. Internal Revenue Code of 1986, as amended (the "Code") and without regard to whether such payments (or any other payments or benefits) would subject you to the federal excise tax applicable to certain "excess parachute payments" under Section 4999 of the Code (the "Excise Tax"). If any portion of the payments or benefits to or for your benefit (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an unfunded and unsecured promise by "excess parachute payment" within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the "Excess Parachute Payments"), the Company shall promptly pay to deliver Shares in you an additional amount (the future, subject "gross-up payment") that after reduction for all taxes (including but not limited to the terms hereof, it is not possible to make a so-called “83(bExcise Tax) election” with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided that to the extent any gross-up payment would be considered "deferred compensation" for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this AwardAgreement, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the "Section 409A penalties"); and further provided that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The Participant expressly acknowledges determination as to whether your payments and agrees that benefits include Excess Parachute Payments and, if so, the Participant’s rights hereunderamount of such payments, including the right to be issued Shares upon the vesting and settlement of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect amount of any later requirement Excise Tax owed with respect thereto, and the amount of withholding, being liable promptly to pay any gross-up payment shall be made at such time as such withholdings are due, to the Company in cash (Company's expense by Xxxxx & Young or by such other means certified public accounting firm as the Company’s Board of Directors may be acceptable designate (the "accounting firm"). Notwithstanding the foregoing, if the U.S. Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability. The payments provided under this Agreement are intended to fall within either the separation pay exception or the short-term deferral exception to the Committee in its discretion) all taxes required application of Section 409A of the Code and the applicable guidance issued thereunder. To the extent the benefits provided under the Agreement become subject to Code Section 409A and applicable guidance issued thereunder, the Agreement and Release shall be withheldconstrued, if anyand benefits paid hereunder, in respect of this Awardas necessary to comply with Code Section 409A and such guidance. The Participant shallNotwithstanding the foregoing, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participantextent any payments hereunder are not made in compliance with Code Section 409A or an exception thereto, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee liability and penalties resulting from non-compliance with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence Code Section 409A shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5remain your sole responsibility.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists (a) Each of an unfunded the Company and unsecured promise each Purchaser agrees to treat the Notes as not a “section 871(m) transaction” within the meaning of Treasury Regulations Section 1.871-15(a)(12) and agrees not to take any position contrary thereto in any tax return or tax proceeding unless required by a determination within the meaning of Section 1313(a) of the Code. Notwithstanding anything herein to the contrary, the Company shall have the right to deduct and withhold (i) from any payment or distribution made with respect to the Notes (or the issuance of shares of Company Common Stock upon conversion or repurchase by the Company to deliver Shares in of the future, subject to the terms hereof, it is not possible to make a so-called “83(bNotes) election” with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring in connection with any adjustment to the Company shares conversion rate of Common Stock owned by the ParticipantNotes, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise amounts as are required to be delivered deducted or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements withheld with respect to tax withholdings then due such payment, distribution, issuance, or adjustment under any applicable Tax law; provided that the Company shall notify the affected Purchaser(s) at least five (5) days prior to any such deduction or withholding and has committed shall use commercially reasonable efforts to cooperate with such Purchaser(s) in seeking to reduce or eliminate any such deduction or withholding. If the Company is required to withhold or otherwise remit any Taxes with respect to a Purchaser in connection with an adjustment to the conversion rate of the Notes or other deemed distribution, it may deduct and withhold the required amount from actual payments of interest or any other amount payable on the Notes (and by holding including payments of PIK Interest or any payment of Common Stock in connection with a conversion of the Notes) or pursuant to this Award Agreement with respect to such Purchaser. To the Participant extent that any amounts are so deducted or withheld as described in this Section 4.10, such deducted or withheld amounts shall be deemed treated for all purposes of this Agreement as having been paid to have committed) to pay in cash all tax withholdings required at any later time the person in respect of which such deduction or withholding was made. In the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes event the Company and its Affiliates previously remitted any amounts to withhold a Governmental Entity on account of Taxes required to be deducted or withheld in respect of any payment or distribution (or deemed distribution) on any Notes, the Company shall be entitled to effect any such amounts from against any amounts otherwise payable to in respect of such Notes (or the Participant, but nothing in this sentence shall be construed as relieving issuance of shares of Company Common Stock upon conversion or repurchase by the Participant Company of any liability for satisfying his or her obligations under the preceding provisions of this Section 5Notes).

Certain Tax Matters. The Participant expressly acknowledges During the period from the date of this Agreement to the Effective Time, (i) the Company, each of its Subsidiaries and each Company Affiliated Group shall timely file all material tax returns (“Post-Signing Returns”) required to be filed by each such entity or group (after taking into account any extensions), and all Post-Signing Returns shall be complete and correct in all material respects and shall be prepared on a basis consistent with the past practice of the Company and in a manner that because this Award consists does not distort taxable income (e.g., by deferring income or accelerating deductions); provided that no Post-Signing Returns shall be filed with any taxing authority without Parent’s written consent, which consent shall not be unreasonably withheld or delayed; provided further that the Company shall file the Federal tax return for Cognos Corporation for fiscal year 2007 due November 15, 2007, and all related State tax returns without the consent of an unfunded Parent; (ii) the Company and unsecured promise each of its Subsidiaries shall timely withhold, collect, remit and pay all taxes which are required by applicable Laws to be withheld, collected, remitted or paid to the extent due and payable; (iii) the Company will accrue a reserve in its books and records and financial statements in accordance with GAAP and past practice for all taxes payable by the Company to deliver Shares in the future, subject or any of its Subsidiaries for which no Post-Signing Return is due prior to the terms hereofEffective Time; (iv) the Company and each of its Subsidiaries will promptly notify Parent of any suit, it is not possible to make a so-called “83(b) election” claim, action, investigation, proceeding or audit pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement material tax and will not settle or compromise any such suit, claim, action, investigation, proceeding or audit relating to taxes without Parent’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; (v) none of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in any of its discretion) all taxes required to be withheldSubsidiaries will amend any material tax return or make, if any, in respect of this Award. The Participant shall, at his rescind or her election, be permitted to satisfy the statutory minimum amount of such change any material tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, election in each casecase without Parent’s consent, having an aggregate Fair Market Value which consent shall not be unreasonably withheld or delayed; and (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicablevi) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and each of its Affiliates to withhold such amounts from any amounts otherwise payable to Subsidiaries will retain all books, documents and records necessary for the Participant, but nothing in this sentence shall be construed as relieving the Participant preparation of any liability for satisfying his or her obligations under the preceding provisions of this Section 5tax returns and reports and tax audits.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists of an unfunded and unsecured promise by If the Company Selected Dealers, among themselves or with the Underwriters, are deemed to deliver Shares in the futureconstitute a partnership for Federal income tax purposes, subject to the terms hereof, it is not possible to make a so-called “83(b) election” with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right then we elect to be issued Shares upon excluded from the vesting application of Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986, as amended, and settlement agree not to take any position inconsistent with that election. You are hereby authorized, in your discretion, to execute and file on our behalf such evidence of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means election as may be acceptable to required by the Committee in its discretion) all taxes required to Internal Revenue Service. In connection with the Offering, we shall be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum liable for your proportionate amount of any tax, claim, demand or liability that may be asserted against us alone or against one or more Selected Dealers participating in such tax obligations by (i) authorizing Offering, or against you or the Company to withhold a number Underwriters, based upon the claim that the Selected Dealers, or any of Shares them, constitute an association, an unincorporated business or (ii) transferring to the Company shares of Common Stock owned by the Participantother entity, including, in each case, having our proportionate amount of any expense incurred in defending against any such tax, claim demand or liability. By signing this Agreement we confirm that our subscription to, or our acceptance of any reservation of, any Securities pursuant to an aggregate Fair Market Value Offering shall constitute (measured on the date such Shares would otherwise be delivered or are transferred i) acceptance of and agreement to the Companyterms and conditions of this Agreement (as supplemented or amended pursuant to Section 4), together with and subject to any supplementary terms and conditions contained in any Written Communication from you in connection with such Offering, all of which shall constitute a binding agreement between us and you, individually or as applicablerepresentative of any Underwriters, (ii) sufficient to satisfy such obligations. No Shares confirmation that our representations and warranties set forth in Section 3 hereof are true and correct at that time, (iii) confirmation that our agreements set forth in Sections 2 and 3 hereof have been and will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted fully performed by us to the Company an amount in cash extent and at the times required thereby and (iv) acknowledgment that we have requested and received from you sufficient to satisfy any federal, state, or local requirements copies of the final prospectus with respect to tax withholdings then due and has committed such Offering in order to comply with our undertakings in Section 3(a) hereof. Very truly yours, (and by holding this Award the Participant shall be deemed to have committedName of Firm) to pay in cash all tax withholdings required at any later time in respect By: Print Name Title Confirmed as of the transfer date first above written: SANDLER O’XXXXX & PARTNERS, L.P. BY: SANDLER O’XXXXX & PARTNERS CORP., THE SOLE GENERAL PARTNER [Name] [Title] Exhibit B Form of such sharesOpinion of Ober, or has made other arrangements satisfactory to Kaler, Gxxxxx & Sxxxxxx, P.C. At the Committee with respect to Closing Date, Agent shall have received: The favorable opinion, dated as of the payment Closing Date, of such taxes. The Participant also authorizes Ober, Kaler, Gxxxxx & Sxxxxxx, P.C., counsel for the Company and its Affiliates the Bank acceptable to withhold such amounts from any amounts otherwise payable Agent in form and substance satisfactory to counsel for Agent to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5.effect that:

Certain Tax Matters. The Participant expressly acknowledges that because During the period from the date of this Award consists Agreement to the earlier to occur of an unfunded the termination of this Agreement, the Effective Time and unsecured promise by the Control Date, the Company shall, and shall cause each of its Subsidiaries to, (i) prepare in a manner consistent with past practice and timely file all tax returns (“Post-Signing Returns”) required to deliver Shares be filed by each such entity; (ii) timely pay all taxes due and payable in respect of such Post-Signing Returns that are so filed; (iii) accrue a reserve in the future, subject books and records and financial statements of any such entity in accordance with past practice for all taxes payable by such entity for which no Post-Signing Return is due prior to the terms hereofEffective Time; (iv) promptly notify Parent of any suit, it is not possible to make a so-called claim, action, investigation, proceeding or audit (collectively, “83(bActions”) election” pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement tax and not settle or compromise any such Action without Parent’s consent (which consent shall not be unreasonably withheld, delayed or conditioned), provided that Parent’s consent shall not be required if the amount of withholding, being liable promptly to pay at such time as such withholdings are due, to the settlement or compromise does not exceed in any material respect the amount specifically reserved by the Company in cash respect of such Action in the books and records and financial statements of the Company or any of its Subsidiaries; (or by such v) not make any material tax election, other means as may than those consistent with past practices, without Parent’s consent (which consent shall not be acceptable to the Committee in its discretion) all taxes required to be unreasonably withheld, if any, in respect of this Award. The Participant shall, at his delayed or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by conditioned); and (ivi) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment fees and expenses paid or payable by Company to brokers, investment bankers, accountants, financial advisors, legal counsel or other Persons retained by Company in connection with this Agreement, request such Persons to use commercially reasonable efforts to identify the portion of such taxes. The Participant also authorizes those fees paid or incurred to facilitate the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to transaction within the Participant, but nothing in this sentence shall be construed as relieving meaning of Section 1.263(a)-5 of the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5Treasury Regulations.

Certain Tax Matters. The Participant expressly acknowledges that because During the period from the date of this Award consists of an unfunded and unsecured promise by Agreement to the Effective Time, the Company to deliver Shares shall, and shall cause each of its subsidiaries to, (i) prepare in the futureaccordance with Applicable Laws and, subject to the terms hereofextent not inconsistent with Applicable Laws, the Company's past practice in preparing its tax returns, and timely file, all material tax returns ("COMPANY POST-SIGNING RETURNS") required to be filed by it, (ii) timely pay all taxes due and payable in respect of such Company Post-Signing Returns that are so filed and any other material amount of taxes that accrue before the Effective Time, (iii) accrue a reserve in its books and records and financial statements in accordance with GAAP and the Company's past practice for all taxes payable by it for which no Company Post-Signing Return is not possible due prior to make a so-called “83(bthe Effective Time, (iv) election” promptly notify Parent of any suit, claim, action, investigation, proceeding or audit (collectively, "ACTIONS") pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its subsidiaries in respect of any later requirement of withholdingtax and not settle or compromise any such Action without Parent's prior written consent, being liable promptly to pay at such time as such withholdings are duewhich consent shall not be unreasonably withheld or delayed, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretionv) not make any material tax election without Parent's consent, and (vi) cause any and all taxes required to be withheldexisting tax sharing agreements, if anytax indemnity obligations and similar agreements, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless arrangements and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements practices with respect to tax withholdings then due and has committed (and taxes to which the Company or any of its subsidiaries is a party or by holding this Award which the Participant shall Company or any of its subsidiaries is otherwise bound to be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect terminated as of the transfer of Closing Date so that after such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes date neither the Company and nor any of its Affiliates to withhold such amounts from subsidiaries shall have any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his further rights or her obligations under the preceding provisions of this Section 5liabilities thereunder.

Certain Tax Matters. The Participant expressly acknowledges that because During the period from the date of this Award consists of an unfunded and unsecured promise by Agreement to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to deliver Shares (A) timely file all material tax returns (taking into account any applicable extensions) required to be filed by or on behalf of each such entity; (B) timely pay all material taxes due and payable; (C) accrue a reserve in the futurebooks and records and financial statements of any such entity in accordance with past practice for all taxes payable but not yet due; (D) promptly notify Parent of any material suit, subject to the terms hereofclaim, it is not possible to make a so-called “83(baction, investigation, audit or similar proceeding (collectively, "Actions") election” pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement amount of withholdingtax and not settle or compromise any tax liability in excess of $10 million for individual claims, being liable promptly or $50 million in the aggregate, without Parent's prior written consent, which shall not be unreasonably withheld; (E) not make any material tax election, other than with Parent's prior written consent or other than in the ordinary course of business consistent with past practice; and (F) cause all existing tax sharing agreements, tax indemnity agreements and similar agreements, arrangements or practices to pay at such time as such withholdings are due, to which the Company in cash (or any of its Subsidiaries is or may be a party or by such other means as which the Company or any of its Subsidiaries is or may otherwise be acceptable to the Committee in its discretion) all taxes required bound to be withheld, if any, in respect terminated as of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of Closing Date so that after such tax obligations by (i) authorizing date neither the Company to withhold a number nor any of Shares its Subsidiaries shall have any further rights or (iiliabilities thereunder. Any tax returns described in this Section 4.01(d) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay complete and correct in cash all tax withholdings required at any later time in respect material respects and shall be prepared on a basis consistent with the past practice of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to in a manner that does not distort taxable income, including by deferring income or accelerating deductions. The Company shall notify Parent upon the Participant, but nothing in this sentence shall be construed as relieving the Participant filing of any liability for satisfying his or her obligations under the preceding provisions of this Section 5such material tax return and shall make such tax returns available to Parent.

Certain Tax Matters. The Participant expressly acknowledges During the period from the date of this Agreement to the Effective Time, (i) the Company and each of the Subsidiaries shall timely file all material Tax Returns ("Post-Signing Returns") required to be filed by each such entity during such period (after taking into account any extensions) and all Post-Signing Returns shall be complete and accurate in all material respects; (ii) the Company and each of the Subsidiaries will timely pay all Taxes that because this Award consists of an unfunded are due and unsecured promise payable prior to the Effective Time; (iii) the Company will accrue a reserve in its books and records and financial statements in accordance with GAAP and past practice for all Taxes payable by the Company to deliver Shares in or any of the future, subject Subsidiaries for which no Post-Signing Return or payment is due prior to the terms hereofEffective Time; (iv) the Company will promptly notify Parent of any material suit, it is not possible to make a so-called “83(b) election” claim, action, investigation, proceeding or audit pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to of the Participant’s promptly paying, or Subsidiaries in respect of any later requirement Tax and will not settle or compromise any such suit, claim, action, investigation, proceeding or audit without Parent's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; (v) none of withholdingthe Company or any of the Subsidiaries will make or change any material Tax election without Parent's consent, being liable promptly which consent shall not be unreasonably withheld, conditioned or delayed; and (vi) the Company and each of the Subsidiaries will retain all books, documents and records necessary for the preparation of Tax Returns and Tax audits. The Company shall deliver to pay Parent at such time as such withholdings are due, or prior to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if anyClosing a certificate, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless form and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements substance satisfactory to the Committee with respect to Parent, duly executed and acknowledged, certifying that the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable Merger Consideration pursuant to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions terms of this Section 5Agreement is exempt from withholding pursuant to the Foreign Investment in Real Property Tax Act.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists of an unfunded and unsecured promise by If the Company Selected Dealers, among themselves or with the Underwriters, are deemed to deliver Shares in the futureconstitute a partnership for Federal income tax purposes, subject to the terms hereof, it is not possible to make a so-called “83(b) election” with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right then we elect to be issued Shares upon excluded from the vesting application of Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986, as amended, and settlement agree not to take any position inconsistent with that election. You are hereby authorized, in your discretion, to execute and file on our behalf such evidence of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means election as may be acceptable to required by the Committee in its discretion) all taxes required to Internal Revenue Service. In connection with the Offering, we shall be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum liable for your proportionate amount of any tax, claim, demand or liability that may be asserted against us alone or against one or more Selected Dealers participating in such tax obligations by (i) authorizing Offering, or against you or the Company to withhold a number Underwriters, based upon the claim that the Selected Dealers, or any of Shares them, constitute an association, an unincorporated business or (ii) transferring to the Company shares of Common Stock owned by the Participantother entity, including, in each case, having our proportionate amount of any expense incurred in defending against any such tax, claim demand or liability. By signing this Agreement we confirm that our subscription to, or our acceptance of any reservation of, any Securities pursuant to an aggregate Fair Market Value Offering shall constitute (measured i) acceptance of and agreement to the terms and conditions of this Agreement (as supplemented or amended pursuant to Section 4), together with and subject to any supplementary terms and conditions contained in any Written Communication from you in connection with such Offering, all of which shall constitute a binding agreement between us and you, individually or as representative of any Underwriters, (ii) confirmation that our representations and warranties set forth in Section 3 hereof are true and correct at that time, (iii) confirmation that our agreements set forth in Sections 2 and 3 hereof have been and will be fully performed by us to the extent and at the times required thereby and (iv) acknowledgment that we have requested and received from you sufficient copies of the final prospectus with respect to such Offering in order to comply with our undertakings in Section 3(a) hereof. Very truly yours, (Name of Firm) By: Print Name Title Confirmed as of the date first above written: SANDLER O’XXXXX & PARTNERS, L.P. BY: SANDLER O’XXXXX & PARTNERS CORP., THE SOLE GENERAL PARTNER [Name] [Title] EXHIBIT D FORM OF LOCK-UP LETTER __________________, 2013 Sandler O’Xxxxx & Partners, L.P. 1251 Avenue of the Axxxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Re: Proposed Public Offering by Prudential Bancorp, Inc. The undersigned understands that Sandler O’Xxxxx & Partners, L.P. (“Sandler O’Xxxxx”), proposes to enter into an Agency Agreement (the “Agency Agreement”) with Prudential Bancorp, Inc., a Pennsylvania corporation (the “Company”), Prudential Bancorp, Inc., of Pennsylvania, a Pennsylvania-chartered stock holding company (the “Mid-Tier”), Prudential Mutual Holding Company, a Pennsylvania -chartered mutual holding company (the “MHC”) and Prudential Savings Bank, a Pennsylvania-chartered stock savings bank (the “Bank” and, together with the Company, the Mid-Tier and the MHC, the “Prudential Parties”), providing for the public offering (the “Public Offering”) of up to 6,756,210 shares (the “Shares”) of the Company’s common stock, par value $0.01 per share (the “Stock”). In recognition of the benefit that the Public Offering will confer upon the undersigned, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with Sandler O’Xxxxx that, during the period beginning on the date such Shares would otherwise be delivered or are transferred of the final prospectus relating to the subscription offering (the “Subscription Offering Prospectus”) and ending 90 days after the Closing Date of the Public Offering (the “Restricted Period”), the undersigned will not, without the prior written consent of Sandler O’Xxxxx, directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, or otherwise dispose of or transfer any shares of the Company’s Stock, the common stock of Mid-Tier (“Mid-Tier Stock”) or any securities convertible into or exchangeable or exercisable for Stock or Mid-Tier Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition, or file any registration statement under the Securities Act of 1933, as applicableamended, with respect to any of the foregoing, (ii) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (enter into any swap or any portion thereofother agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Stock or Mid-Tier Stock, whether any such swap or transaction is to be settled by delivery of Stock, Mid-Tier Stock or other securities, in cash or otherwise or (iii) unless publicly announce an intention to do any of the foregoing. If either (i) during the period that begins on the date that is 15 calendar days plus three (3) business days before the last day of the Restricted Period and until ends on the Participant last day of the Restricted Period, the Company issues an earnings release or the person then holding this Award has remitted material news or a material event relating to the Company an amount in cash sufficient to satisfy any federal, stateoccurs, or local requirements with respect (ii) prior to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect expiration of the transfer of such sharesRestricted Period, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates announces that it will release earnings results during the 16-day period beginning on the last day of the Restricted Period, the restrictions set forth herein will continue to withhold such amounts from any amounts otherwise payable apply until the expiration of the date that is 15 calendar days plus three (3) business days after the date on which the earnings release is issued or the material news or event related to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5.the

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists Shareholders shall file, or cause to be ------------------- filed, all tax returns of an unfunded and unsecured promise by the Company required to deliver Shares in the future, subject to the terms hereof, it is not possible to make a so-called “83(b) election” be filed with respect to this Awardany periods ending on or before the Effective Time (and the Surviving Corporation shall designate a Shareholder as an authorized person of the Surviving Corporation for purposes of signing and filing the returns). The Participant expressly acknowledges and agrees that Shareholders shall make available for review, by the Participant’s rights hereunderParent, including the right to be issued Shares upon the vesting and settlement 20 business days before filing, all returns of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheldfiled with respect to any periods ending on or before the Effective Time. Parent shall prepare and file any and all tax returns of the Company or the Surviving Corporation which are required to be filed with respect to any periods ending after the Effective Time. Parent, if anyMerger Sub, Surviving Corporation, and the Shareholders shall cooperate fully, as and to the extent reasonably requested by the other party, in connection with the preparation of any tax return, any audit, litigation or other proceeding with respect to taxes. Such cooperation shall include particularly the preparation and timely filing of this Awardthe final Subchapter S corporate tax return for the taxable period ending as of the Effective Time and the retention and (upon the other party's request) the provision of records and information which includes but is not limited to hardcopy and microfiche copy of financial statements, general ledger detail, accounts payable records (including any expense invoices located on premises or at third party storage locations), customer sales invoices, payroll records, book and tax fixed asset records, and state apportionment records (which includes sales, payroll, property, inventory and rent expense by location), which are reasonably relevant to any such audit, litigation or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by parties agree (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless retain all books and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements records with respect to tax withholdings then due matters pertinent to the Company relating to any taxable period beginning before the Effective Time until the expiration of the statute of limitations (and, to the extent notified by the other party, any extensions thereof) of the respective taxable periods, and has committed to abide by all record retention agreements, entered into with any taxing authority, and (ii) to give the other party reasonable written notice prior to transferring, destroying or discarding any such books and by holding this Award records and, if the Participant other party so requests, it shall be deemed allowed to take possession of such books and records. Each Shareholder agrees that he shall not, without Parent's prior written consent, make any retroactive tax election or other amendment or supplement to any of the Company's or the Shareholders' tax returns with any local, state, Federal or foreign governmental authority following the Merger that could reasonably be expected to have committed) an adverse financial impact on Parent or the Surviving Corporation following the Effective Time. Parent agrees that it shall not, without the Shareholders' prior written consent, make any retroactive tax election or other amendment or supplement to pay in cash all tax withholdings required at any later time in respect of the transfer Surviving Corporation's tax returns with any local, state, Federal or foreign governmental authority following the Merger that could reasonably be expected to have an adverse financial impact on the Shareholders following the Effective Time. Parent shall (i) promptly notify the Shareholders of such shares, or has made other arrangements satisfactory to the Committee commencement of any examination with respect to the payment tax liability of the Company for any taxable year that includes any period prior to the Effective Time, (ii) promptly provide the Shareholders with copies of all correspondence with any taxing authority with respect to that tax liability, (iii) solely at the Shareholders' expense, permit the Shareholders to control the defense with respect to such examination and any administrative and court proceedings resulting therefrom to the extent such proceedings affect the tax liability of the Shareholders or the tax liability of the Company with respect to which the Shareholders may be liable to indemnify Parent; provided, if Parent reasonably determines that such examination or proceedings could have an adverse effect on Parent or the Surviving Corporation, Parent shall have the right to control the defense of such taxes. The Participant also authorizes examination or proceeding and the Shareholders shall be permitted to participate therein at their own expense, and (iv) not enter into any settlement of tax liability of the Shareholders or the tax liability of the Company and its Affiliates with respect to withhold which the Shareholders may be liable to indemnify Parent without the written approval of the Shareholders (which approval shall not be unreasonably withheld). If the Shareholders are controlling the defense of any such amounts from any amounts otherwise payable examination or proceeding pursuant to the Participantforegoing sentence, but nothing in this sentence the Shareholders shall not enter into any settlement of tax liability of the Company without Parent's prior written approval (which approval shall not be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5unreasonably withheld).

Certain Tax Matters. The Participant expressly acknowledges that because During the period from the date of this Award consists of an unfunded and unsecured promise by Agreement to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, (i) timely file (without extensions) all tax returns (“Post-Signing Returns”) required to deliver Shares be filed by or on behalf of each such entity; (ii) timely pay all taxes due and payable in respect of such Post-Signing Returns that are so filed; (iii) accrue a reserve in the future, subject books and records and financial statements of any such entity in accordance with past practice for all taxes payable by such entity for which no Post-Signing Return is due prior to the terms hereofEffective Time; (iv) promptly notify Parent of any suit, it is not possible to make a so-called claim, action, investigation, proceeding or audit (collectively, “83(bActions”) election” pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement material amount (individually or in the aggregate) of withholdingtax and not settle or compromise any such Action without Parent’s consent; provided, being liable promptly to pay at such time as such withholdings are duethat Parent’s consent shall not be unreasonably withheld; provided, further, that Parent must respond to the Company in cash (within ten business days following the receipt by Parent of written notice of any proposed settlement or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect compromise of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned any Action by the ParticipantCompany; (v) not make (other than in the ordinary course of business consistent with past practice), in each caseamend or revoke any material tax election or settle or compromise any material tax liability, having an aggregate Fair Market Value other than as required by applicable law or with Parent’s consent; (measured vi) not execute any waiver of restrictions on the date such Shares would otherwise be delivered assessment or are transferred to the Companycollection of any tax, as applicableother than with Parent’s consent; and (vii) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (cause all existing tax sharing agreements, tax indemnity obligations and similar agreements, arrangements or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements practices with respect to taxes to which the Company or any of its Subsidiaries is or may be a party or by which the Company or any of its Subsidiaries is or may otherwise be bound to be terminated as of the Closing Date so that after such date neither the Company nor any of its Subsidiaries shall have any further rights or liabilities thereunder. Any tax withholdings then due and has committed (and by holding returns described in this Award the Participant Section 4.01(d) shall be deemed to have committed) to pay complete and correct in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee material respects and shall be prepared on a basis consistent with respect to the payment of such taxespast practice. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant promptly provide Parent with copies of any liability for satisfying his or her obligations under the preceding provisions of this Section 5Post-Signing Returns, as Parent may reasonably request.

Certain Tax Matters. The Participant Grantee expressly acknowledges that because this the Award consists of an unfunded and unsecured promise by the Company to deliver Shares Stock in the future, subject to the terms hereof, it is not possible to make a so-called “83(b) election” with respect to this the Award. The Participant Grantee expressly acknowledges and agrees that the ParticipantGrantee’s rights hereunder, including the right to be issued Shares shares upon the vesting and settlement of this Award the Units (or any portion thereof), are subject to the ParticipantGrantee’s promptly paying, or in respect of any later requirement of withholding, withholding being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee Administrator in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, No shares will be permitted required to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring be transferred pursuant to the Company shares vesting of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award Units (or any portion thereof) unless and until the Participant Grantee or the person then holding this the Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant Grantee shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee Administrator with respect to the payment of such taxes. The Participant Administrator shall, if requested by the Grantee (or the Grantee’s estate, as applicable) in the event of the vesting of any Units following the Grantee’s termination of Employment due to death or Disability, hold back shares that would otherwise be deliverable (but not in excess of the applicable minimum statutory withholding rate). The Grantee also authorizes the Company and its Affiliates subsidiaries to withhold such amounts from any amounts otherwise payable owed to the ParticipantGrantee, but nothing in this sentence shall be construed as relieving the Participant Grantee of any liability for satisfying his or her obligations under the preceding provisions of this Section 5Section.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists Regardless of an unfunded and unsecured promise any action taken by the Company or, if different, the Related Entity employing the Grantee or to deliver Shares which the Grantee is otherwise providing services (the "Service Recipient"), the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to the Grantee's participation in the future, subject Plan and legally applicable to the terms hereofGrantee or deemed by the Company or the Service Recipient, it is not possible to make a so-called “83(b) election” with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunderin their discretion, including the right to be issued Shares upon the vesting and settlement of this Award (or any portion thereof), are subject an appropriate charge to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, Grantee even if legally applicable to the Company in cash or the Service Recipient (or by such other means as "Tax-Related Items") is and remains the Grantee's responsibility and may be acceptable to exceed the Committee in its discretion) all taxes required to be amount actually withheld, if any, in respect of this Awardby the Company or the Service Recipient. The Participant shall, at his or her election, be permitted to satisfy Grantee further acknowledges that the statutory minimum amount of such tax obligations by Company and/or the Service Recipient (i) authorizing make no representations or undertakings regarding the Company to withhold a number treatment of Shares any Tax-Related Items in connection with any aspect of the SARs, including, but not limited to, the grant, vesting or exercise of the SARs and the receipt of any cash payment in settlement of the SARs; and (ii) transferring do not commit to and are under no obligation to structure the terms of the grant or any aspect of the SARs to reduce or eliminate the Grantee's liability for Tax-Related Items or achieve any particular tax result. Further, if the Grantee is subject to Tax-Related Items in more than one jurisdiction, the Company shares of Common Stock owned by and/or the Participant, in each case, having an aggregate Fair Market Value Service Recipient (measured on the date such Shares would otherwise be delivered or are transferred to the Companyformer service recipient, as applicable) sufficient may be required to satisfy such obligationswithhold or account for Tax-Related Items in more than one jurisdiction. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted The Grantee agrees to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other make adequate arrangements satisfactory to the Committee with respect Company and/or the Service Recipient, as applicable, prior to any relevant tax withholding event, to satisfy all Tax-Related Items. In this regard, the payment of such taxes. The Participant also Grantee authorizes the Company and its Affiliates and/or the Service Recipient, or their respective agents, at their discretion, to withhold such amounts from satisfy any amounts otherwise payable applicable withholding obligations with regard to all Tax-Related Items by one or a combination of the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5.following:

Certain Tax Matters. The Participant expressly acknowledges (a) Buyer and Seller recognize and agree that because as between themselves, for purposes of federal, state and local tax laws only, (i) Seller will, if the transactions contemplated hereby are consummated, continue to be entitled to all benefits accrued and all rights vested, and shall, as between the parties to this Award consists of an unfunded and unsecured promise Agreement, remain liable for all tax obligations incurred by the Company to deliver Shares Corporation of any nature whatsoever, in the future, subject to the terms hereof, it is not possible to make a so-called “83(b) election” each case with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunderperiod ending as of the time of Closing on the Closing Date (the "Pre-Closing Period"), including without limitation rights to indemnification by Lessee for taxes relating to such Pre-Closing Period under the right Lease Transaction Documents; and (ii) if the transactions contemplated hereby are consummated, the Corporation and Buyer shall be entitled, respectively, to all benefits accrued and all rights vested and shall, as between the parties to this Agreement, be issued Shares upon liable for all tax obligations incurred by the vesting and settlement of this Award Corporation, in each case with respect to the period after the PreClosing Period (or any portion thereofthe "Post-Closing Period"), are subject to the Participant’s promptly payingand shall be entitled, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are duewithout limitation, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheldrights, if any, in respect of this Awardto indemnification for taxes relating to such Post-Closing Period under the Lease Transaction Documents. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the ParticipantBuyer and Seller agree that, in all matters relating to any such rights and obligations, each caseshall act in a manner consistent with, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Companyand not in derogation of, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction any rights of this Award (or any portion thereof) unless and until the Participant Seller, Buyer or the person then holding this Award has remitted to Corporation hereunder or under the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee Lease Transaction Documents with respect to the payment of such taxes. The Participant also authorizes Pre-Closing Period or the Company Post-Closing Period, as the case may be, and its Affiliates to withhold such amounts from any amounts otherwise payable Buyer shall, with respect to the Participantrights of Seller, but nothing cause the Corporation to act in this sentence a manner consistent with the foregoing. Any refunds, credits or other tax savings with respect to taxes properly attributed to the Pre-Closing Period shall be construed as relieving the Participant property of any liability for satisfying his the Seller and shall be paid over to the Seller by the Buyer or her obligations under the preceding provisions of this Section 5Corporation.

Certain Tax Matters. The Participant expressly acknowledges Mortgage Loan Seller shall prepare or cause to be prepared and shall file, or cause to be filed, all of the Tax Returns for calendar years 2023 and 2024 that because this Award consists it determines are required with respect to the 1516 Motor Parkway Loan REMIC and the Centene Loan REMIC, and shall cause the Trustee to execute such Tax Returns in a timely manner. The expenses of an unfunded and unsecured promise preparing such returns shall be borne by the Company Mortgage Loan Seller without any right of reimbursement therefor. The Mortgage Loan Seller agrees to deliver Shares indemnify the Depositor, the Master Servicer (including in its capacity as Companion Paying Agent, if applicable), the Special Servicer, the Certificate Administrator, the Trustee, the Operating Advisor, the Asset Representations Reviewer and the Trust and any partner, director, officer, shareholder, member, manager employee or agent thereof, and hold them harmless, from and against any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and related costs (including, without limitation, in connection with the enforcement of such indemnified party’s rights under this Agreement), judgments, and any other costs, liabilities, fees and expenses that any of them may sustain arising from or as a result of any willful misconduct, bad faith or negligence of the Mortgage Loan Seller in the futureperformance of its obligations and duties under this Section 19 or by reason of negligent disregard by the Mortgage Loan Seller of its duties and obligations under this Section 19 or by reason of breach of any representations or warranties made herein; provided that such indemnity shall not cover indirect or consequential damages. The Depositor, subject to the terms hereofMaster Servicer, it the Special Servicer, the Trustee, the Certificate Administrator, the Asset Representations Reviewer or the Operating Advisor, as the case may be, will immediately notify the Mortgage Loan Seller if a claim is not possible to make made by a so-called “83(b) election” third party with respect to this Award. The Participant expressly acknowledges Section 19, whereupon the Mortgage Loan Seller shall assume the defense of such claim (with counsel reasonably satisfactory to the Depositor, the Master Servicer (including in its capacity as Companion Paying Agent, if applicable), the Special Servicer, the Trustee, the Certificate Administrator, the Asset Representations Reviewer or the Operating Advisor) and agrees that the Participant’s rights hereunderpay all expenses in connection therewith, including the right to counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be issued Shares upon the vesting and settlement of this Award (entered against it or any portion thereof), are subject to the Participant’s promptly paying, or them in respect of such claim. Any failure to so notify the Mortgage Loan Seller shall not affect any later requirement rights any of withholdingthe foregoing Persons may have to indemnification under this Section 19 or otherwise, being liable promptly to pay at such time as such withholdings are due, to unless the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount Mortgage Loan Seller’s defense of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5claim is materially prejudiced thereby.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists Parties hereto intend for the Merger to be treated as a taxable sale of an unfunded and unsecured promise shares of the Company by the Company Holders, it being understood and agreed that neither Buyer nor Merger Sub nor any of their Affiliates, representatives or agents, make any representations or warranties to deliver Shares the Company or to any Company Holder regarding the Tax treatment of the Merger, or any of the Tax consequences to the Company or any Company Holder of this Agreement, the Merger or the other transactions or the other agreements contemplated by this Agreement. The Company acknowledges that the Company and the Company Holders are relying solely on their own Tax advisors in connection with this Agreement, the Merger and the other transactions and the other agreements contemplated by this Agreement. Notwithstanding the generality of the foregoing, the Parties hereby acknowledge and agree that, in the future, subject event that any Company Option that are “incentive stock option” as set forth on Section 3.3(b) of the Company Disclosure Schedule are exercised prior to the terms hereofClosing Date, the shares of Company Capital Stock transferred in respect of such exercise shall be the subject of a “disqualifying disposition” (within the meaning of Section 421(b) of the Code)as a result of the Merger, and it is not possible intended that the amount realized as a result of such “disqualifying disposition” attributable to make such a so-called disqualifying disposition for Tax purposes will be equal to the fair market value of such Company Capital Stock at the time of such “83(b) electiondisqualifying disposition,” which amount shall be reported on Form W-2 for the year in which such amounts are paid to the Company Holder pursuant to this Agreement; provided, however, that no amount with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Escrow Amount or any portion thereof), are subject Contingent Payments will be reported on a Form W-2 to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly such Company Holder prior to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount actual payment of such tax obligations amounts, except as otherwise expressly required by (i) authorizing a Taxing authority. Buyer, the Surviving Corporation and the applicable Company to withhold Holder shall file all Tax Returns consistently with the foregoing Tax treatment, except as otherwise expressly required by a number Taxing authority. Neither Buyer, the Surviving Corporation, nor any of Shares their Affiliates, agents or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred representatives shall have any liability to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (any Company Holder or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its their Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant a result of any liability for satisfying his or her obligations under the preceding provisions of this Section 5Taxing authority taking a contrary position.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists of an unfunded LSG shall prepare and unsecured promise by the Company to deliver Shares in the future, subject to the terms hereof, it is not possible to make a so-called “83(b) election” timely file all returns with respect to this AwardTaxes relating to the Acquired Assets for the Straddle Period. The Participant expressly acknowledges LSG shall pay and agrees that the Participant’s rights hereunder, including the right discharge all Taxes shown to be issued Shares upon due on such Tax Returns. LED shall not file an amended Tax Return or make an election with respect to periods or portions thereof ending on or before the vesting Closing Date without the written consent of LSG if the amendment or election adversely affects LSG, the Business or the Acquired Assets. LED shall turn over to LSG all originals and settlement copies of all Tax Returns, schedules, work papers, records and other documents relating to Tax matters with respect to the Business and the Acquired Assets and LSG shall retain such documents that relate to any pre-Closing Tax period until 60 days after the expiration of the applicable statute of limitations with respect to such Tax matters. LSG shall be responsible for the preparation of Tax Returns (including any documentation) with respect to all transfer, documentation, sales, use, stamp, registration, and similar Taxes incurred in connection with this Award (Agreement or any portion thereof), are subject transaction contemplated thereby and shall be responsible for the payment of such Taxes. LSG shall also file all necessary documentation and Tax Returns with respect to such Taxes. Each Party shall provide each other Party with such assistance as may reasonably be requested by any of them in connection with the Participant’s promptly paying, or in respect preparation of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash filings with any taxing authorities (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, local or local requirements otherwise) and with respect any Action relating to tax withholdings then due and has committed (and by holding this Award liability for Taxes, in either case in connection with the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect operation of the transfer Business or the Acquired Assets. Such assistance shall include making employees available on a mutually convenient basis to provide information and explanation of such sharesany material provided hereunder, or has made other arrangements satisfactory and shall include providing copies of any relevant information, data, reports, tax returns and supporting work schedules, to the Committee extent such is available. LSG, on the one hand, and LED, on the other hand, each agree to reimburse the other for its reasonable out-of-pocket expenses, such as travel costs, incurred by it, him or her, as the case may be, in connection with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her performing obligations under the preceding provisions of this Section 56.07(e), provided, however, that such reimbursable expenses shall not include any per diem or other expenses in the nature of salary replacement or overhead absorption measures.

Certain Tax Matters. The Participant expressly acknowledges Vendor and the Warrantor shall jointly and severally indemnify the Purchaser and hold it harmless from and against any loss, claim, liability, expense, or other damage attributable to (i) any and all taxes (or the non-payment thereof) of any member of the Group or Trinity or any subsidiary of Trinity for all taxable periods ending on or before the Release Date and the portion through the end of the Release Date for any taxable period that because this Award consists includes (but does not end on) the Release Date ("Pre-Release Tax Period"), (ii) all taxes of any member of an unfunded and unsecured promise by affiliated, consolidated, combined or unitary group of which any member of the Company to deliver Shares in Group (or any predecessor of any of the future, subject foregoing) is or was a member on or prior to the terms hereofRelease Date, it and (iii) any and all taxes of any person (other than any member of the Group) imposed on any member of the Group as a transferee or successor, by contract or pursuant to any law, rule, or regulation, which taxes relate to an event or transaction occurring before the Release. Payment in full of any amount due from the Vendor and/or Warrantor under this Clause 10.6 shall be made to the Purchaser in immediately available funds at least two business days before the date payment of the taxes to which such payment relates is not possible due, or, if no tax is payable, within fifteen days after written demand is made for such payment. Notwithstanding the foregoing, (i) the Purchaser seeking indemnification hereunder shall provide the Vendor and the Warrantor with reasonably prompt written notice of any proposed tax adjustment that may give rise to make a so-called “83(b) election” the Vendor and Warrantor's indemnification obligation hereunder, shall cooperate with the Vendor and Warrantor and, provided that the Vendor and/or Warrantor acknowledge in writing their liability pursuant to this Clause 10.6 for indemnification with respect to the tax adjustment at issue, permit the Vendor and/or the Warrantor to participate, at their own expense, in the audit or other proceeding. Notwithstanding the preceding sentence, in the event that Vendor and/or Warrantor want to accept a proposed settlement of a tax claim for which they have an indemnity obligation pursuant to this AwardClause 10.6 (the "TAX SETTLEMENT OPTION") and the Purchaser determines that it prefers to pursue the tax claim further, the Purchaser may pursue the tax claim without the participation of Vendor or the Warrantor PROVIDED THAT in such case the maximum amount of liability of theVendor and the Warrantor under such tax claim shall not exceed the amount for which they would have been liable if the Tax Settlement Option were accepted. The Participant expressly acknowledges In the case of any taxable period that includes (but does not end on) the Release Date (a "STRADDLE PERIOD"), the amount of any taxes based on or measured by income or receipts of the Group or any member thereof for the Pre-Release Tax Period shall be determined based on an interim closing of the books as of the close of business on the Release Date (and agrees that for such purposes the Participant’s rights hereundertaxable period of any partnership or other pass-through entity in which any member of the Group holds a beneficial interest shall be deemed to terminate at such time), including and the right amount of other taxes of the Group for a Straddle Period which relate to the Pre-Release Tax Period shall be deemed to be issued Shares upon the vesting and settlement of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations for the entire taxable period multiplied by (i) authorizing a fraction the Company to withhold a numerator of which is the number of Shares or (ii) transferring to days in the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured taxable period ending on the date Release Date and the denominator of which is the number of days in such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5Straddle Period.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists Vendors and the Covenantors shall jointly and severally indemnify XFM and hold it harmless from and against any loss, claim, liability, expense, or other damage attributable to (i) any and all taxes (or the non-payment thereof) of any member of the Group or the Company or any subsidiary of the Company for all taxable periods ending on or before the Closing Date ("PRE-CLOSING TAX PERIOD"), (ii) all taxes of any member of an unfunded and unsecured promise by affiliated, consolidated, combined or unitary group of which any member of the Company to deliver Shares in the future, subject to the terms hereof, it is not possible to make a so-called “83(b) election” with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award Group (or any portion thereofpredecessor of any of the foregoing) is or was a member on or prior to the Closing Date, and (iii) any and all taxes of any person (other than any member of the Group) imposed on any member of the Group as a transferee or successor, by contract or pursuant to any law, rule, or regulation, which taxes relate to an event or transaction occurring before the Closing. Payment in full of any amount due from the Vendors and/or Covenantors under this Clause 9.7 shall be made to XFM in immediately available funds at least two Business Days before the date payment of the taxes to which such payment relates is due, or, if no tax is payable, within fifteen days after written demand is made for such payment. Notwithstanding the foregoing, (i) XFM shall provide the Vendors and the Covenantors with reasonably prompt written notice of any proposed tax adjustment that may give rise to the Vendors and Covenantors' indemnification obligation hereunder, shall cooperate with the Vendors and Covenantors and permit the Vendors and/or the Covenantors to participate, at their own expense, in the audit or other proceeding. Notwithstanding the preceding sentence, in the event that Vendors and/or Covenantors want to accept a proposed settlement of a tax claim for which they have an indemnity obligation pursuant to this Clause 9.6 (the "TAX SETTLEMENT OPTION") and XFM determines that it prefers to pursue the tax claim further, XFM may pursue the tax claim without the participation of Vendors or the Covenantors PROVIDED THAT in such case the maximum amount of liability of the Vendors and the Covenantors under such tax claim shall not exceed the amount for which they would have been liable if the Tax Settlement Option were accepted. In the case of any taxable period that ends on or before the Closing Date (a "STRADDLE PERIOD"), are subject the amount of any taxes based on or measured by income or receipts of the Group or any member thereof for the Pre-Closing Tax Period shall be determined based on an interim closing of the books as of the close of business on the Closing Date, and the amount of other taxes of the Group for a Straddle Period which relate to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may Pre-Closing Tax Period shall be acceptable to the Committee in its discretion) all taxes required deemed to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations for the entire taxable period multiplied by (i) authorizing a fraction the Company to withhold a numerator of which is the number of Shares or (ii) transferring to days in the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured taxable period ending on the date Closing Date and the denominator of which is the number of days in such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5Straddle Period.]

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists of an unfunded and unsecured promise by If the Company Selected Dealers, among themselves or with the Underwriters, are deemed to deliver Shares in the futureconstitute a partnership for Federal income tax purposes, subject to the terms hereof, it is not possible to make a so-called “83(b) election” with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right then we elect to be issued Shares upon excluded from the vesting application of Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986, as amended, and settlement agree not to take any position inconsistent with that election. You are hereby authorized, in your discretion, to execute and file on our behalf such evidence of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means election as may be acceptable to required by the Committee in its discretion) all taxes required to Internal Revenue Service. In connection with the Offering, we shall be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum liable for your proportionate amount of any tax, claim, demand or liability that may be asserted against us alone or against one or more Selected Dealers participating in such tax obligations by (i) authorizing Offering, or against you or the Company to withhold a number Underwriters, based upon the claim that the Selected Dealers, or any of Shares them, constitute an association, an unincorporated business or (ii) transferring to the Company shares of Common Stock owned by the Participantother entity, including, in each case, having our proportionate amount of any expense incurred in defending against any such tax, claim demand or liability. By signing this Agreement we confirm that our subscription to, or our acceptance of any reservation of, any Securities pursuant to an aggregate Fair Market Value Offering shall constitute (measured i) acceptance of and agreement to the terms and conditions of this Agreement (as supplemented or amended pursuant to Section 4), together with and subject to any supplementary terms and conditions contained in any Written Communication from you in connection with such Offering, all of which shall constitute a binding agreement between us and you, individually or as representative of any Underwriters, (ii) confirmation that our representations and warranties set forth in Section 3 hereof are true and correct at that time, (iii) confirmation that our agreements set forth in Sections 2 and 3 hereof have been and will be fully performed by us to the extent and at the times required thereby and (iv) acknowledgment that we have requested and received from you sufficient copies of the final prospectus with respect to such Offering in order to comply with our undertakings in Section 3(a) hereof. Very truly yours, (Name of Firm) By: Print Name Title Confirmed as of the date first above written: SANDLER O’XXXXX & PARTNERS, L.P. BY: SANDLER O’XXXXX & PARTNERS CORP., THE SOLE GENERAL PARTNER [Name] [Title] EXHIBIT D FORM OF LOCK-UP LETTER _______________, 2013 Sandler O’Xxxxx & Partners, L.P. 1251 Avenue of the Axxxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Re: Proposed Public Offering by Waterstone Financial, Inc. The undersigned understands that Sandler O’Xxxxx & Partners, L.P. (“Sandler O’Xxxxx”), proposes to enter into an Agency Agreement (the “Agency Agreement”) with Waterstone Financial, Inc., a Maryland corporation (the “Company”), Waterstone Financial, Inc., a federally-chartered stock holding company (the “Mid-Tier”), Lamplighter Financial, MHC, a federally-chartered mutual holding company (the “MHC”) and WaterStone Bank SSB, a Wisconsin-chartered stock savings bank (the “Bank” and, together with the Company, the Mid-Tier and the MHC, the “WaterStone Parties”), providing for the public offering (the “Public Offering”) of up to 28,031,250 shares (the “Shares”) of the Company’s common stock, par value $0.01 per share (the “Stock”). In recognition of the benefit that the Public Offering will confer upon the undersigned, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with Sandler O’Xxxxx that, during the period beginning on the date such Shares would otherwise be delivered or are transferred of the final prospectus relating to the subscription offering (the “Subscription Offering Prospectus”) and ending 90 days after the Closing Date of the Public Offering (the “Restricted Period”), the undersigned will not, without the prior written consent of Sandler O’Xxxxx, directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, or otherwise dispose of or transfer any shares of the Company’s Stock, the common stock of Mid-Tier (“Mid-Tier Stock”) or any securities convertible into or exchangeable or exercisable for Stock or Mid-Tier Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition, or file any registration statement under the Securities Act of 1933, as applicableamended, with respect to any of the foregoing, (ii) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (enter into any swap or any portion thereofother agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Stock or Mid-Tier Stock, whether any such swap or transaction is to be settled by delivery of Stock, Mid-Tier Stock or other securities, in cash or otherwise or (iii) unless publicly announce an intention to do any of the foregoing. If either (i) during the period that begins on the date that is 15 calendar days plus three (3) business days before the last day of the Restricted Period and until ends on the Participant last day of the Restricted Period, the Company issues an earnings release or the person then holding this Award has remitted material news or a material event relating to the Company an amount in cash sufficient to satisfy any federal, stateoccurs, or local requirements with respect (ii) prior to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect expiration of the transfer Restricted Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of such sharesthe Restricted Period, the restrictions set forth herein will continue to apply until the expiration of the date that is 15 calendar days plus three (3) business days after the date on which the earnings release is issued or has made other arrangements satisfactory the material news or event related to the Committee with respect to the payment of such taxesCompany occurs. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant promptly notify Sandler O’Xxxxx of any liability for satisfying his earnings releases, news or her obligations under events that may give rise to an extension of the preceding provisions of this Section 5Restricted Period.

Certain Tax Matters. The Participant expressly acknowledges During the period from the date of this Agreement to the Effective Time, (i) the Company and each of its Subsidiaries shall timely file all tax returns required to be filed before the Closing (after taking into account any extensions) by or on behalf of each such entity (“Post-Signing Returns”), and all Post-Signing Returns shall be complete and correct and shall be prepared on a basis consistent with the past practices of the Company and its Subsidiaries and in a manner that because this Award consists does not distort taxable income (e.g., by deferring income or accelerating deductions); provided that no Post-Signing Returns shall be filed with any taxing authority without Parent’s written consent, which shall not be unreasonably withheld, conditioned or delayed; (ii) the Company and each of an unfunded its Subsidiaries shall timely pay all taxes due and unsecured promise payable in respect of such Post-Signing Returns that are so filed or otherwise owed by each such entity; (iii) the Company will accrue a reserve in its books and records and financial statements in accordance with GAAP and past practice for all taxes payable by the Company to deliver Shares in the future, subject or any of its Subsidiaries for which no Post-Signing Return is due prior to the terms hereofEffective Time; (iv) the Company shall promptly notify Parent of any suit, it is not possible to make a so-called claim, action, assessment, investigation, proceeding or audit (collectively, “83(btax actions”) election” pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement tax and will not settle or compromise any such tax action without Parent’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed; (v) none of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may any of its Subsidiaries will make, revoke or change any material tax election without Parent’s prior written consent, which shall not be acceptable to the Committee in its discretion) all taxes required to be unreasonably withheld, if any, in respect of this Award. The Participant shall, at his conditioned or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by delayed; and (ivi) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and each of its Affiliates to withhold such amounts from any amounts otherwise payable to Subsidiaries will retain all books, documents and records necessary for the Participant, but nothing in this sentence shall be construed as relieving the Participant preparation of any liability for satisfying his or her obligations under the preceding provisions of this Section 5tax returns and reports and tax audits.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists of (a) In consideration for the Purchase Price and the Assumed Liabilities, on or before June 30, 2022, Purchaser shall prepare and deliver to Seller an unfunded allocation statement (the “Allocation”) allocating the Purchase Price (and unsecured promise the Assumed Liabilities to the extent properly taken into account under the Code) among the Purchased Assets (and further allocated, as determined necessary by the Company to deliver Shares in the futurePurchaser, subject to the terms hereof, it is not possible to make a so-called “83(b) election” with respect to this Award. The Participant expressly acknowledges some or all of the assets of any entity of which equity interests of such entity are included in the Purchased Assets) in accordance with Section 1060 of the Code and agrees that the Participant’s rights hereunderTreasury Regulations promulgated thereunder (and any similar provision of state, including the right to be issued Shares local or foreign Law, as appropriate) as determined based upon the vesting and settlement of this Award (an independent appraisal or any portion thereof), are subject valuation performed by a qualified expert reasonably agreeable to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this AwardSeller Representative. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by Purchaser shall (i) authorizing provide to Seller an estimate of the Company to withhold a number of Shares allocation statement on or before December 31, 2021; and (ii) transferring permit the Seller Representative to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured review and provide comments on the date such Shares would otherwise be delivered or are transferred to Allocation and shall consult with the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements Seller Representative with respect to tax withholdings then due and has committed (and by holding this Award any such comments. However, the Participant Allocation shall be deemed to have committedfinal as reasonably determined by Purchaser based on the above. Purchaser and Seller shall report and file all Tax Returns (including amended Tax Returns and claims for refund) to pay in cash all tax withholdings required at respects and for all purposes in a manner consistent with the Allocation. Purchaser, Seller, and Acquired Subsidiaries shall cooperate in the filing of any later time in respect forms (including Form 8594 under Section 1060 of the transfer of such shares, or has made other arrangements satisfactory to the Committee Code) with respect to the payment of such taxesAllocation. The Participant also authorizes the Company and its Affiliates Allocation, as finally determined hereunder, shall be adjusted to withhold such amounts from reflect any amounts otherwise payable adjustment to the ParticipantPurchase Price provided under this Agreement. Neither Purchaser, but nothing Seller nor any Acquired Subsidiary shall take any Tax position inconsistent with such Allocation (as adjusted in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of accordance with this Section 58.03(a)) except as required, after using good faith efforts to support the Allocation in any applicable challenge by a Governmental Authority, to settle a dispute with a Governmental Authority with respect to the Allocation.

Certain Tax Matters. The Participant expressly acknowledges that because During the period from the date of this Award consists Agreement to the Effective Time, (i) the Company and each of an unfunded its Subsidiaries shall timely file all material Tax Returns (“Post-Signing Returns”) required to be filed by each such entity (after taking into account any extensions) and unsecured promise all Post-Signing Returns shall be complete and accurate in all material respects; (ii) the Company and each of its Subsidiaries will timely pay all Taxes due and payable in respect of such Post-Signing Returns; (iii) the Company will accrue a reserve in its books and records and financial statements in accordance with past practice for all Taxes payable by the Company to deliver Shares in the future, subject or any of its Subsidiaries for which no Post-Signing Return is due prior to the terms hereofEffective Time; (iv) the Company and each of its Subsidiaries will promptly notify Parent of any suit, it is not possible to make a so-called “83(b) election” claim, action, investigation, proceeding or audit pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement Tax and will not settle or compromise any such suit, claim, action, investigation, proceeding or audit without Parent’s prior written consent, which consent shall not be unreasonably delayed; (v) none of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereofof its Subsidiaries will make or change any material Tax election without Parent’s consent, which consent shall not be unreasonably withheld; and (vi) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and each of its Affiliates to withhold such amounts from any amounts otherwise payable to Subsidiaries will retain all books, documents and records necessary for the Participant, but nothing in this sentence shall be construed as relieving the Participant preparation of any liability for satisfying his or her obligations under the preceding provisions of this Section 5Tax Returns and Tax audits.

Certain Tax Matters. The Participant expressly acknowledges During the period from the date of this Agreement to the Effective Time, (i) the Company and each of its Subsidiaries shall timely file all tax returns ("Post-Signing Returns") required to be filed by each such entity (after taking into account any extensions), and all Post-Signing Returns shall be complete and correct in all material respects and shall be prepared on a basis consistent with the past practice of the Company and in a manner that because this Award consists does not distort taxable income (e.g., by deferring income or accelerating deductions); provided that no Post-Signing Returns shall be filed with any taxing authority without Parent's written consent, which consent shall not be unreasonably delayed; (ii) the Company and each of an unfunded its Subsidiaries shall timely pay all taxes due and unsecured promise payable other than any being contested in good faith through appropriate proceedings and for which adequate reserves in accordance with GAAP have been established on the Company's books and records and included in the Baseline Financials or in the unaudited quarterly financial statements included in the Company's Form 10-Q for the period ended August 31, 2011, filed with the SEC on October 4, 2011; (iii) the Company will accrue a reserve in its books and records and financial statements in accordance with GAAP and past practice for all taxes payable by the Company to deliver Shares in the future, subject or any of its Subsidiaries for which no Post-Signing Return is due prior to the terms hereofEffective Time; (iv) the Company and each of its Subsidiaries will promptly notify Parent of any suit, it is not possible to make a so-called “83(b) election” claim, action, investigation, proceeding or audit pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement material amounts of withholdingtax and will not settle or compromise any such suit, being liable promptly to pay at such time as such withholdings are dueclaim, to action, investigation, proceeding or audit without Parent's prior written consent; (v) none of the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereofof its Subsidiaries will make or change any material tax election without Parent's prior written consent; and (vi) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and each of its Affiliates to withhold such amounts from any amounts otherwise payable to Subsidiaries will retain all books, documents and records necessary for the Participant, but nothing in this sentence shall be construed as relieving the Participant preparation of any liability for satisfying his or her obligations under the preceding provisions of this Section 5tax returns and reports and tax audits.

Certain Tax Matters. (a) The Participant expressly acknowledges Seller and each Seller Party shall jointly and severally indemnify Buyer Indemnified Parties and hold each of them harmless from and against, any Losses attributable to (i) all Taxes (or the non-payment thereof) of Parent and Seller and Seller Parties (where applicable), (ii) all Taxes (or the non-payment thereof) of the Acquired Companies for all taxable periods ending on or before the Closing Date and the portion through the end of the Closing Date for any taxable period that because this Award consists includes (but does not end on) the Closing Date (“Pre-Closing Tax Period”), (iii) all Taxes of any member of an unfunded affiliated, consolidated, combined or unitary group of which an Acquired Company (or any predecessor thereof) is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation 1.1502-6 or any analogous or similar state, local, or non-U.S. law or regulation, (iv) any and unsecured promise all Taxes of any person (other than the Company) imposed on an Acquired Company as a transferee or successor, by Contract or pursuant to any Law which Taxes relate to an event or transaction occurring on or before the Closing Date, (v) all Taxes imposed on the Company as a result of an election made by any of Parent, Seller or the Company under §108(i) of the Code, (vi) any and all employment and payroll Taxes imposed with respect to deliver Shares in any compensatory payments hereunder (including payments pursuant to the futurerelease of any Escrow Shares), and (vii) costs and expenses associated with preparing, filing, amending and defending any Tax Return for any Pre-Closing Tax Period. The indemnification under this Section 7.3(a) shall not be subject to the terms hereofBasket, it is not possible to make a so-called “83(b) election” with respect Cap or other limitations set forth in Section 7.2 or elsewhere in this Agreement. Sellers shall reimburse Buyer for any Taxes of the Acquired Companies which are the responsibility of Seller pursuant to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right Section 7.3(a) at least three business days prior to be issued Shares upon the vesting and settlement of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxesTaxes by Buyer or the Company. The Participant also authorizes Notwithstanding the Company and its Affiliates to withhold such amounts from foregoing or any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions other provision of this Section 5Agreement, Buyer shall bear the cost of the Tax Make-up Amount without indemnification.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists of an unfunded and unsecured promise by If the Company Selected Dealers, among themselves or with the Underwriters, are deemed to deliver Shares in the futureconstitute a partnership for Federal income tax purposes, subject to the terms hereof, it is not possible to make a so-called “83(b) election” with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right then we elect to be issued Shares upon excluded from the vesting application of Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986, as amended, and settlement agree not to take any position inconsistent with that election. You are hereby authorized, in your discretion, to execute and file on our behalf such evidence of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means election as may be acceptable to required by the Committee in its discretion) all taxes required to Internal Revenue Service. In connection with the Offering, we shall be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum liable for your proportionate amount of any tax, claim, demand or liability that may be asserted against us alone or against one or more Selected Dealers participating in such tax obligations by (i) authorizing Offering, or against you or the Company to withhold a number Underwriters, based upon the claim that the Selected Dealers, or any of Shares them, constitute an association, an unincorporated business or (ii) transferring to the Company shares of Common Stock owned by the Participantother entity, including, in each case, having our proportionate amount of any expense incurred in defending against any such tax, claim demand or liability. By signing this Agreement we confirm that our subscription to, or our acceptance of any reservation of, any Securities pursuant to an aggregate Fair Market Value Offering shall constitute (measured i) acceptance of and agreement to the terms and conditions of this Agreement (as supplemented or amended pursuant to Section 4), together with and subject to any supplementary terms and conditions contained in any Written Communication from you in connection with such Offering, all of which shall constitute a binding agreement between us and you, individually or as representative of any Underwriters, (ii) confirmation that our representations and warranties set forth in Section 3 hereof are true and correct at that time, (iii) confirmation that our agreements set forth in Sections 2 and 3 hereof have been and will be fully performed by us to the extent and at the times required thereby and (iv) acknowledgment that we have requested and received from you sufficient copies of the final prospectus with respect to such Offering in order to comply with our undertakings in Section 3(a) hereof. Very truly yours, (Name of Firm) By: Print Name Title Confirmed as of the date first above written: SANDLER X’XXXXX & PARTNERS, L.P. BY: SANDLER X’XXXXX & PARTNERS CORP., THE SOLE GENERAL PARTNER [Name] [Title] EXHIBIT D FORM OF LOCK-UP LETTER , 2012 SANDLER X’XXXXX & PARTNERS, X.X. XXXXXXXXX & COMPANY, INC. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED C/O SANDLER X’XXXXX & PARTNERS, L.P. AS REPRESENTATIVE OF THE SEVERAL AGENTS 1251 Avenue of the Xxxxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Re: Proposed Public Offering by Northfield Bancorp, Inc. The undersigned understands that Sandler X’Xxxxx & Partners, L.P. (“Sandler X’Xxxxx”), as representative of the several Agents (as defined below), Xxxxxxxxx & Company, Inc. (“Jefferies”) and Xxxxxx, Xxxxxxxx & Company, Incorporated (“Xxxxxx Xxxxxxxx” and together with Sandler X’Xxxxx and Jefferies, the “Agents”), proposes to enter into an Agency Agreement (the “Agency Agreement”) with Northfield Bancorp, Inc., a Delaware corporation (the “Company”), Northfield Bancorp, Inc., a federally-chartered stock holding company (the “Mid-Tier”), Northfield Bancorp, MHC, a federally-chartered mutual holding company (the “MHC”) and Northfield Bank, a federally-chartered stock savings bank (the “Bank” and, together with the Company, the Mid-Tier and the MHC, the “Northfield Parties”), providing for the public offering (the “Public Offering”) by the Agents, of up to 41,975,000 shares (the “Shares”) of the Company’s common stock, par value $0.01 per share (the “Stock”). In recognition of the benefit that the Public Offering will confer upon the undersigned, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with Sandler X’Xxxxx that, during the period beginning on the date such Shares would otherwise be delivered or are transferred of the final prospectus relating to the subscription offering (the “Subscription Offering Prospectus”) and ending 90 days after the Closing Date of the Public Offering (the “Restricted Period”), the undersigned will not, without the prior written consent of Sandler X’Xxxxx, directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, or otherwise dispose of or transfer any shares of the Company’s Stock, the common stock of Mid-Tier (“Mid-Tier Stock”) or any securities convertible into or exchangeable or exercisable for Stock or Mid-Tier Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition, or file any registration statement under the Securities Act of 1933, as applicableamended, with respect to any of the foregoing, (ii) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (enter into any swap or any portion thereofother agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Stock or Mid-Tier Stock, whether any such swap or transaction is to be settled by delivery of Xxxxx, Xxx-Xxxx Xxxxx or other securities, in cash or otherwise or (iii) unless publicly announce an intention to do any of the foregoing. If either (i) during the period that begins on the date that is 15 calendar days plus three (3) business days before the last day of the Restricted Period and until ends on the Participant last day of the Restricted Period, the Company issues an earnings release or the person then holding this Award has remitted material news or a material event relating to the Company an amount in cash sufficient to satisfy any federal, stateoccurs, or local requirements with respect (ii) prior to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect expiration of the transfer Restricted Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of such sharesthe Restricted Period, the restrictions set forth herein will continue to apply until the expiration of the date that is 15 calendar days plus three (3) business days after the date on which the earnings release is issued or has made other arrangements satisfactory the material news or event related to the Committee with respect to the payment of such taxesCompany occurs. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant promptly notify Sandler X’Xxxxx of any liability for satisfying his earnings releases, news or her obligations under events that may give rise to an extension of the preceding provisions of this Section 5Restricted Period.

Certain Tax Matters. The Participant expressly acknowledges During the period from the date of this Agreement to the Effective Time, (i) the Company and each of its Subsidiaries shall timely file all tax returns (“Post-Signing Returns”) required to be filed by each such entity (after taking into account any extensions), and all Post-Signing Returns shall be complete and correct in all material respects and shall be prepared on a basis consistent with the past practice of the Company; provided that because this Award consists the Company (A) shall provide all Post-Signing Returns in respect of an unfunded income and unsecured promise similar taxes to Parent for review and comment at least 15 business days prior to the date such Post-Signing Returns are required to be filed and (B) shall consider in good faith any comments made by Parent and act reasonably and in good faith to resolve any objections raised by Parent with respect to such Post-Signing Returns; (ii) the Company and each of its Subsidiaries shall timely pay all taxes due and payable; (iii) the Company will accrue a reserve in its books and records and financial statements in accordance with GAAP and past practice for all taxes payable by the Company to deliver Shares in the future, subject or any of its Subsidiaries for which no Post-Signing Return is due prior to the terms hereofEffective Time; (iv) the Company and each of its Subsidiaries will promptly notify Parent of any suit, it is not possible to make a so-called “83(b) election” claim, action, investigation, proceeding or audit pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement material amount of withholdingtax and will not settle or compromise any such suit, being liable promptly to pay at such time as such withholdings are dueclaim, to action, investigation, proceeding or audit without Parent’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; (v) none of the Company in cash (or by such other means as may any of its Subsidiaries will make or change any tax election without Parent’s written consent, which consent shall not be acceptable to the Committee in its discretion) all taxes required to be unreasonably withheld, if any, in respect of this Award. The Participant shall, at his conditioned or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by delayed; and (ivi) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and each of its Affiliates to withhold such amounts from any amounts otherwise payable to Subsidiaries will retain (in accordance with the ParticipantCompany’s retention policy) all books, but nothing in this sentence shall be construed as relieving documents and records necessary for the Participant preparation of any liability for satisfying his or her obligations under the preceding provisions of this Section 5tax returns and reports and tax audits.

Certain Tax Matters. The Participant expressly acknowledges During the period from the date of this Agreement to the Effective Time, (i) the Company and each of its Subsidiaries shall timely file all tax returns required to be filed before the Closing (after taking into account any extensions) by or on behalf of each such entity (“Post-Signing Returns”), and all Post-Signing Returns shall be complete and correct in all material respects and shall be prepared on a basis consistent with the past practices of the Company and its Subsidiaries; provided that because this Award consists no Post-Signing Returns shall be filed with any taxing authority without Parent’s prior written consent (which shall not be unreasonably conditioned, delayed or withheld); (ii) the Company and each of an unfunded its Subsidiaries shall timely pay all taxes due and unsecured promise payable in respect of such Post-Signing Returns that are so filed or otherwise owed by each such entity; (iii) the Company will accrue a reserve in its books and records and financial statements in accordance with GAAP and past practice for all taxes payable by the Company to deliver Shares in the future, subject or any of its Subsidiaries for which no Post-Signing Return is due prior to the terms hereofEffective Time; (iv) the Company shall promptly notify Parent of any suit, it is not possible to make a so-called claim, action, assessment, investigation, proceeding or audit (collectively, “83(btax actions”) election” pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement tax and will not settle or compromise any such tax action without Parent’s prior written consent (which shall not be unreasonably conditioned, delayed or withheld); (v) none of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereofof its Subsidiaries will make, revoke or change any material tax election without Parent’s prior written consent (which shall not be unreasonably conditioned, delayed or withheld) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committedvi) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and each of its Affiliates to withhold such amounts from any amounts otherwise payable to Subsidiaries will retain all books, documents and records necessary for the Participant, but nothing in this sentence shall be construed as relieving the Participant preparation of any liability for satisfying his or her obligations under the preceding provisions of this Section 5tax returns and reports and tax audits.

Certain Tax Matters. The Participant expressly acknowledges that because (i) During the period from the date of this Award consists of an unfunded and unsecured promise by Agreement to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, (A) use commercially reasonable efforts to deliver Shares timely file all tax returns (“Post-Signing Returns”) required to be filed by or on behalf of each such entity; (B) use commercially reasonable efforts to timely pay all taxes due and payable in respect of such Post-Signing Returns that are so filed; (C) use commercially reasonable efforts to accrue a reserve in the future, subject books and records and financial statements of any such entity at such times and in such amounts as are in accordance with past practice for all taxes payable by such entity for which no Post-Signing Return is due prior to the terms hereofEffective Time; (D) promptly notify Parent of any suit, it claim, action, investigation, proceeding or audit (collectively, “Actions”) that is not possible to make a so-called “83(b) election” or becomes pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum material amount of tax and not settle or compromise any such Action without Parent’s consent (which consent shall not be unreasonably withheld or delayed); (E) not make or change any material tax election or settle or compromise any material tax liability, other than with Parent’s consent (which consent shall not be unreasonably withheld or delayed) or other than in the ordinary course of business; and (F) cause all existing tax sharing agreements, tax indemnity obligations by and similar agreements, arrangements or practices other than agreements entered into in the ordinary course of business consistent with past practice (i“Tax-Related Agreements”) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed taxes to which the Company or any of its Subsidiaries is or may be a party or by which the Company or any of its Subsidiaries is or may otherwise be bound (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, other than Tax-Related Agreements between or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes among the Company and its Affiliates Subsidiaries) to withhold be terminated as of the Closing Date so that after such amounts from date neither the Company nor any amounts otherwise payable to the Participant, but nothing in this sentence of its Subsidiaries shall be construed as relieving the Participant of have any liability for satisfying his further rights or her obligations under the preceding provisions of this Section 5liabilities thereunder.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists Vendor and the Covenantor shall jointly and severally indemnify XFM and hold it harmless from and against any loss, claim, liability, expense, or other damage attributable to (i) any and all taxes (or the non-payment thereof) of any member of the Group or the Company or any subsidiary of the Company for all taxable periods ending on or before the Closing Date ("PRE-CLOSING TAX PERIOD"), (ii) all taxes of any member of an unfunded and unsecured promise by affiliated, consolidated, combined or unitary group of which any member of the Company to deliver Shares in the future, subject to the terms hereof, it is not possible to make a so-called “83(b) election” with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award Group (or any portion thereofpredecessor of any of the foregoing) is or was a member on or prior to the Closing Date, and (iii) any and all taxes of any Person (other than any member of the Group) imposed on any member of the Group as a transferee or successor, by contract or pursuant to any law, rule, or regulation, which taxes relate to an event or transaction occurring before the Closing. Payment in full of any amount due from the Vendor and/or Covenantor under this Clause 10.7 shall be made to XFM in immediately available funds at least two Business Days before the date payment of the taxes to which such payment relates is due, or, if no tax is payable, within fifteen days after written demand is made for such payment. Notwithstanding the foregoing, (i) XFM shall provide the Vendor and the Covenantor with reasonably prompt written notice of any proposed tax adjustment that may give rise to the Vendor and Covenantor's indemnification obligation hereunder, shall cooperate with the Vendor and Covenantor and permit the Vendor and/or the Covenantor to participate, at their own expense, in the audit or other proceeding. Notwithstanding the preceding sentence, in the event that Vendor and/or Covenantor want to accept a proposed settlement of a tax claim for which they have an indemnity obligation pursuant to this Clause 10.7 (the "TAX SETTLEMENT OPTION") and XFM determines that it prefers to pursue the tax claim further, XFM may pursue the tax claim without the participation of Vendor or the Covenantor PROVIDED THAT in such case the maximum amount of liability of the Vendor and the Covenantor under such tax claim shall not exceed the amount for which they would have been liable if the Tax Settlement Option were accepted. In the case of any taxable period that ends on or before the Closing Date (a "STRADDLE PERIOD"), are subject the amount of any taxes based on or measured by income or receipts of the Group or any member thereof for the Pre-Closing Tax Period shall be determined based on an interim closing of the books as of the close of business on the Closing Date, and the amount of other taxes of the Group for a Straddle Period which relate to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may Pre-Closing Tax Period shall be acceptable to the Committee in its discretion) all taxes required deemed to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations for the entire taxable period multiplied by (i) authorizing a fraction the Company to withhold a numerator of which is the number of Shares or (ii) transferring to days in the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured taxable period ending on the date Closing Date and the denominator of which is the number of days in such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5Straddle Period.

Certain Tax Matters. The Participant expressly acknowledges that because (i) During the period from the date of this Award consists of an unfunded and unsecured promise by Agreement to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, (A) timely file all tax returns ("Post-Signing Returns") required to deliver Shares be filed by or on behalf of each such entity; (B) timely pay all taxes due and payable; (C) accrue a reserve in the futurebooks and records and financial statements of any such entity in accordance with past practice for all taxes payable but not yet due; (D) promptly notify Parent of any suit, subject to the terms hereofclaim, it action, investigation, proceeding or audit (collectively, "Actions") that is not possible to make a so-called “83(b) election” or becomes pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum material amount of tax and not settle or compromise any such Action without Parent's consent; (E) not make any material tax election or settle or compromise any material tax liability, other than with Parent's consent or other than in the ordinary course of business; and (F) cause all existing tax sharing agreements, tax indemnity obligations by (i) authorizing the Company to withhold a number of Shares and similar agreements, arrangements or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements practices with respect to taxes to which the Company or any of its Subsidiaries is or may be a party or by which the Company or any of its Subsidiaries is or may otherwise be bound to be terminated as of the Closing Date so that after such date neither the Company nor any of its Subsidiaries shall have any further rights or liabilities thereunder. Any tax withholdings then due and has committed (and by holding returns described in this Award the Participant Section 4.01(d) shall be deemed to have committed) to pay complete and correct in cash all tax withholdings required at any later time in respect material respects and shall be prepared on a basis consistent with the past practice of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participantin a manner that does not distort taxable income (e.g., but nothing in this sentence by deferring income or accelerating deductions); provided that no Post-Signing Returns shall be construed as relieving the Participant of filed with any liability for satisfying his or her obligations under the preceding provisions of this Section 5taxing authority without Parent's prior written consent.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists (a) (i) Each of an unfunded Seller and unsecured promise Waters (or Seller on behalf of Waters) has timely filed or will timely file prior to the Closing Date all Tax Returns required to be filed prior to the Closing Date; (ii) the Tax Returns of Waters which were or will be due prior to the Closing Date are, to the extent already filed, and if not yet filed, will be, accurate and complete for all taxable periods ending on or before the Closing Date and accurately set forth or will accurately set forth all items to the extent required by the Company Code or treasury regulations thereunder or by applicable state, local or foreign tax laws, regulations or rules to deliver Shares be reflected or included in such returns; (iii)(A) Seller, Waters and any affiliates of Seller (as defined in Section 1504(a) of the futureCode), subject have timely paid, will timely pay or timely accrue on the books and records of Waters prior to the terms hereofClosing Date all Taxes (other than Income Taxes) payable for all periods ending on or before the Closing Date, it (B) for all periods beginning before and ending after the Closing Date, all Taxes payable (or that will become payable) by Waters attributable to the portion of the period ending as of the Closing Date have been timely paid or will be timely paid by Seller or, other than Income Taxes, will be timely accrued on the books and records of Waters prior to the Closing, and (C) the Tax Returns of Seller and its affiliates (as defined in Section 1504(a) of the Code) which were due prior to the Closing Date are accurate and complete for all relevant taxable periods and accurately set forth all items to the extent required by the Code or treasury regulations thereunder or by applicable state, local or foreign tax laws, regulations or rules to be reflected or included in such Tax Returns; (iv) there are no liens for Taxes upon any assets of Waters; and (v) there is not possible to make a so-called “83(b) election” no action, suit, proceeding, investigation, audit or claim now proposed or pending against or with respect to this Award. The Participant expressly acknowledges Seller and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or its Affiliates in respect of any later requirement of withholdingTax for which Waters is liable, except as provided in Schedule 3.20, and any such action, suit, proceeding, investigation, audit or claim is being liable promptly to pay at such time as such withholdings are due, to the Company contested in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5good faith through appropriate proceedings.

Certain Tax Matters. The Participant expressly acknowledges that because During the period from the date of this Award consists of an unfunded and unsecured promise by Agreement to the Effective Time, the Company shall, and shall cause each Company Subsidiary to, (i) timely file all material Tax Returns ("POST-SIGNING RETURNS") required to deliver Shares be filed by each such entity; (ii) timely pay all Taxes shown as due and payable on such Post-Signing Returns that are so filed; (iii) accrue a reserve in the future, subject books and records and financial statements of any such 40 36 entity in accordance with past practice for all Taxes payable by such entity for which no Post-Signing Return is due prior to the terms hereofEffective Time; (iv) not make or change any material Tax elections; (v) promptly notify Parent of any Federal suit, it is not possible to make a so-called “83(bclaim, action, investigation, proceeding or audit, and any other material suit, claim, action, investigation, proceeding or audit (collectively, "ACTIONS") election” pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to of the Participant’s promptly paying, or Company Subsidiaries in respect of any later requirement of withholding, being liable promptly liability for Taxes and not settle or compromise any such Action without Parent's consent (which consent shall not be unreasonably withheld or delayed); and (vi) use its reasonable best efforts to pay at such time as such withholdings are due, continue to abide in all material respects by any representations made in ruling requests to the Company in cash (or by such other means as Internal Revenue Service, use its reasonable best efforts to pursue any material contractual rights that it may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, have that are in respect of this Award. The Participant shallensuring that Battery and Agriculture also continue to abide by the representations made by Battery and Agriculture therein and, at his without the consent of Parent (which consent shall not be unreasonably withheld or her electiondelayed), be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring except as otherwise required pursuant to the Company shares of Common Stock owned by the ParticipantTax sharing agreements, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered give no consents or are transferred permission to Battery or Agriculture to take any actions requiring the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and 's consent by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect virtue of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5Tax sharing agreements.

Certain Tax Matters. The Participant expressly acknowledges that because (i) During the period from the date of this Award consists of an unfunded and unsecured promise by Agreement to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, (A) timely file all tax returns (“Post-Signing Returns”) required to deliver Shares be filed by or on behalf of each such entity; (B) timely pay all taxes due and payable in respect of such Post-Signing Returns that are so filed; (C) accrue a reserve in the future, subject books and records and financial statements of any such entity in accordance with past practice for all taxes payable by such entity for which no Post-Signing Return is due prior to the terms hereofEffective Time; (D) promptly notify Parent of any suit, it is not possible to make a so-called claim, action, investigation, proceeding or audit (collectively, “83(bActions”) election” pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement material amount of withholdingtax and not settle or compromise any such Action without Parent’s consent; (E) not make any material tax election or settle or compromise any material tax liability, being liable promptly other than with Parent’s consent or other than in the ordinary course of business; and (F) cause all existing tax sharing agreements, tax indemnity obligations and similar agreements, arrangements or practices with respect to pay at such time as such withholdings are due, taxes to which the Company in cash (or any of its Subsidiaries is or may be a party or by such other means as which the Company or any of its Subsidiaries is or may otherwise be acceptable to the Committee in its discretion) all taxes required bound to be withheld, if any, in respect terminated as of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of Closing Date so that after such tax obligations by (i) authorizing date neither the Company to withhold nor any of its Subsidiaries shall have any further rights or liabilities thereunder. Any tax returns described in this Section 4.01(d) shall be complete and correct in all material respects and shall be prepared on a number basis consistent with the past practice of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant provided that no Post-Signing Returns shall be deemed to have committed) to pay in cash all tax withholdings required at filed with any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5taxing authority without Parent’s prior written consent.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists of an unfunded and unsecured promise by Notwithstanding anything herein to the contrary, the Company shall have the right to deliver Shares in the futurededuct and withhold from any payment, subject to the terms hereof, it is not possible to make a so-called “83(b) election” dividend or distribution made with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including Shares (or upon the right redemption of the Shares or Alternative Preference Shares or the issuance of Class A Shares or Alternative Preference Shares upon conversion of the Preferred Shares) such amounts as are required to be issued Shares upon deducted or withheld with respect to the vesting making of such payment or distribution (or issuance) under any applicable Tax law; provided that, prior to making any such deduction or withholding the Company shall provide notice to Purchaser of its intent to withhold and settlement shall provide Purchaser with a reasonable opportunity to eliminate, reduce or otherwise mitigate any such deduction or withholding requirement and shall cooperate with the Purchaser in obtaining any available treaty relief. To the extent that any amounts are so deducted or withheld, such deducted or withheld amounts shall be treated for all purposes of this Award (or any portion thereof), are subject Agreement as having been paid to the Participant’s promptly paying, person in respect of which such deduction or withholding was made. In the event the Company previously remitted any amounts to a Governmental Entity on account of Taxes required to be deducted or withheld in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash payment or distribution (or by such other means as may be acceptable to the Committee in its discretiondeemed distribution) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his on any shares without making a corresponding deduction or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time withholding from amounts distributable in respect of the transfer of such applicable shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates shall be entitled to withhold offset any such amounts from against any amounts otherwise payable in respect of such Shares (or the issuance of Class A Shares or Alternative Preference Shares upon conversion of the Preferred Shares). Notwithstanding anything herein or in the Articles of Amendment to the Participantcontrary, but nothing the Company has no intent under applicable law (including publicly available administrative statements) in this sentence shall be construed as relieving effect on the Participant date hereof to make any deduction or withholding for Taxes in respect of a conversion of the Preferred Shares into Class A Shares pursuant to Sections 5(a) and 5(c) of the Series 6 Articles of Amendment. The Company further agrees to cooperate with the Purchaser with regard to any liability for satisfying his other tax reporting or her obligations under compliance matters reasonably requested by the preceding provisions of this Section 5Purchaser in connection with the investment contemplated hereby.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists (a) Any and all payments by or on account of an unfunded and unsecured promise by any obligation of the Company to deliver Shares in the future, Borrower hereunder may be subject to deduction or withholding to the terms hereofextent required by applicable Law, it is not possible and to make a so-called “83(b) election” the extent any amounts are deducted or withheld from any amounts payable to or with respect to a Noteholder under this Award. The Participant expressly acknowledges Note and agrees that paid to the Participant’s rights hereunderappropriate Governmental Authority, including such deducted or withheld amounts shall be treated as if paid to such Noteholder for all purposes hereof; provided, however, that, if the right to be issued Shares upon the vesting and settlement of this Award (Borrower or any portion thereof)of its Affiliates or the Agent determines that any such deduction or withholding is required, are subject except in the case of any deduction or withholding required as a result of a Noteholder’s or a permitted transferee’s failure to deliver an Internal Revenue Service Form W-9 or applicable Internal Revenue Service Form W-8 in accordance with this Section 13.10(a) establishing an exemption from withholding, then the Borrower or the Agent, as applicable, shall use commercially reasonable efforts to (x) notify the Noteholder that such deduction or withholding is intended at least five (5) Business Days prior to the Participant’s promptly payingapplicable payment date and (y) cooperate with the Noteholder to obtain any available exemption from, or reduction in respect the amount of, such deduction or withholding. Each of the Noteholders (and any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, permitted transferee thereof) will provide to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by Borrower (i) authorizing a properly completed and duly executed Internal Revenue Service Form W-9 certifying that the Company Noteholder or such permitted transferee, as applicable, is not subject to withhold a number of Shares backup withholding, or (ii) transferring an applicable properly completed and duly executed Internal Revenue Service Form W-8, on or before the first date on which any amount is paid to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment Noteholder or such permitted transferee, as applicable, under this Note, and the Noteholder or its permitted transferee, as applicable, will provide a revised version of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his form when materially obsolete or her obligations under the preceding provisions of this Section 5inaccurate.

Certain Tax Matters. The Participant expressly acknowledges During the period from the date of this Agreement to the Effective Time, (i) the Company and each of its Subsidiaries shall timely file all tax returns (“Post-Signing Returns”) required to be filed by each such entity (after taking into account any extensions), and all Post-Signing Returns shall be complete and correct in all material respects and shall be prepared on a basis consistent with the past practice of the Company; provided that because this Award consists no material Post-Signing Returns shall be filed with any taxing authority without Parent’s written consent, which consent shall not be unreasonably withheld or delayed; (ii) the Company and each of an unfunded its Subsidiaries shall timely pay all taxes due and unsecured promise payable with respect to the tax periods covered by such Post-Signing Returns; (iii) the Company will accrue a reserve in its books and records and financial statements in accordance with GAAP and past practice for all taxes payable by the Company to deliver Shares in the future, subject or any of its Subsidiaries for which no Post-Signing Return is due prior to the terms hereofEffective Time; (iv) the Company and each of its Subsidiaries will promptly notify Parent of any suit, it is not possible to make a so-called “83(b) election” claim, action, investigation, proceeding or audit pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement material amount of withholdingtax and will not settle or compromise any such suit, being liable promptly to pay at such time as such withholdings are dueclaim, to action, investigation, proceeding or audit without Parent’s prior written consent, which consent shall not be unreasonably withheld or delayed; (v) none of the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereofof its Subsidiaries will make or change any material tax election without Parent’s consent, which consent shall not be unreasonably withheld or delayed; and (vi) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and each of its Affiliates to withhold such amounts from any amounts otherwise payable to Subsidiaries will retain (in accordance with the ParticipantCompany’s retention policy) all books, but nothing in this sentence shall be construed as relieving documents and records necessary for the Participant preparation of any liability for satisfying his or her obligations under the preceding provisions of this Section 5tax returns and reports and tax audits.

Certain Tax Matters. The Participant expressly acknowledges that because Payments and benefits under this Award consists Agreement shall be made and provided without regard to whether the deductibility of such payments (or any other payments or benefits to or for your benefit) would be limited or precluded by Section 280G ("Section 280G") of the U.S. Internal Revenue Code of 1986, as amended (the "Code") and without regard to whether such payments (or any other payments or benefits) would subject you to the federal excise tax applicable to certain "excess parachute payments" under Section 4999 of the Code (the "Excise Tax"). If any portion of the payments or benefits to or for your benefit (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an unfunded and unsecured promise by "excess parachute payment" within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the "Excess Parachute Payments"), the Company shall promptly pay to deliver Shares in you an additional amount (the future, subject "gross-up payment") that after reduction for all taxes (including but not limited to the terms hereof, it is not possible to make a so-called “83(bExcise Tax) election” with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided that to the extent any gross-up payment would be considered "deferred compensation" for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this AwardAgreement, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the "Section 409A penalties"); and further provided that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The Participant expressly acknowledges determination as to whether your payments and agrees that benefits include Excess Parachute Payments and, if so, the Participant’s rights hereunderamount of such payments, including the right to be issued Shares upon the vesting and settlement of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect amount of any later requirement Excise Tax owed with respect thereto, and the amount of withholding, being liable promptly to pay any gross-up payment shall be made at such time as such withholdings are due, to the Company in cash (Company's expense by Xxxxx & Young or by such other means certified public accounting firm as the Company’s Board of Directors may be acceptable designate (the "accounting firm"). Notwithstanding the foregoing, if the U.S. Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability. The payments provided under this Agreement are intended to fall within either the separation pay exception or the short-term deferral exception to the Committee in its discretion) all taxes required application of Section 409A of the Code and the applicable guidance issued thereunder. To the extent the benefits provided under the Agreement become subject to Code Section 409A and applicable guidance issued thereunder, the Agreement and Release shall be withheldconstrued, if anyand benefits paid hereunder, in respect of this Awardas necessary to comply with Code Section 409A and such guidance. The Participant shallNotwithstanding the foregoing, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participantextent any payments hereunder are not made in compliance with Code Section 409A or an exception thereto, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee liability and penalties resulting from non-compliance with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence Code Section 409A shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5remain Employee’s sole responsibility.

Certain Tax Matters. The Participant expressly acknowledges During the period from the date of this Agreement to the date of the Effective Time, (i) the Company and each of its Subsidiaries shall timely file all Tax Returns required to be filed by each such entity during such period (after taking into account any extensions) (each, a “Post-Signing Return”), which Post-Signing Returns shall be complete and correct in all respects and, except as otherwise required by Law, shall be prepared on a basis consistent with the past practice of the Company; provided, however, that because this Award consists no material Post-Signing Returns shall be filed with any Governmental Entity without Parent’s written consent, which consent shall not be unreasonably withheld or delayed; (ii) the Company and each of an unfunded its Subsidiaries shall timely pay all Taxes due and unsecured promise payable with respect to the Tax periods covered by such Post-Signing Returns; (iii) the Company shall accrue a liability in its books and records and financial statements in accordance with GAAP and past practice for all Taxes payable by the Company to deliver Shares in the future, subject or any of its Subsidiaries for which no Post-Signing Return is due prior to the terms hereofday of the Effective Time; (iv) the Company and each of its Subsidiaries shall promptly notify Parent of any suit, it is not possible to make a so-called “83(b) election” claim, action, investigation, proceeding or audit pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum material amount of Tax and will not settle or compromise any such tax obligations by suit, claim, action, investigation, proceeding or audit without Parent’s prior written consent, which consent shall not be unreasonably withheld or delayed; and (iv) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and each of its Affiliates to withhold such amounts from any amounts otherwise payable to Subsidiaries shall retain all books, documents and records necessary for the Participant, but nothing in this sentence shall be construed as relieving the Participant preparation of any liability for satisfying his or her obligations under the preceding provisions of this Section 5Tax Returns and reports and Tax audits consistent with its standard policy.

Certain Tax Matters. The Participant expressly acknowledges During the period from the date of this Agreement to the Effective Time, (i) the Company and each of its Subsidiaries shall timely file all tax returns required to be filed before the Closing (after taking into account any extensions) by or on behalf of each such entity (“Post-Signing Returns”), and all Post-Signing Returns shall be complete and correct in all material respects and shall be prepared on a basis consistent with the past practices of the Company and its Subsidiaries and in a manner that because this Award consists does not distort taxable income (e.g., by deferring income or accelerating deductions); provided that no Post-Signing Returns shall be filed with any taxing authority without Parent’s written consent, which shall not be unreasonably withheld, conditioned or delayed; (ii) the Company and each of an unfunded its Subsidiaries shall timely pay all taxes due and unsecured promise payable in respect of such Post-Signing Returns that are so filed or otherwise owed by each such entity; (iii) the Company will accrue a reserve in its books and records and financial statements in accordance with GAAP and past practice for all taxes payable by the Company to deliver Shares in the future, subject or any of its Subsidiaries for which no Post-Signing Return is due prior to the terms hereofEffective Time; (iv) the Company shall promptly notify Parent of any suit, it is not possible to make a so-called “83(b) election” claim, action, assessment, investigation, proceeding or audit pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement tax and will not settle or compromise any such tax action without Parent’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed; (v) none of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash or any of its Subsidiaries will make, revoke or change any material tax election (or unless required by such other means as may Applicable Law) without Parent’s prior written consent, which shall not be acceptable to the Committee in its discretion) all taxes required to be unreasonably withheld, if any, in respect of this Award. The Participant shall, at his conditioned or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by delayed; and (ivi) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and each of its Affiliates to withhold such amounts from any amounts otherwise payable to Subsidiaries will retain all books, documents and records necessary for the Participant, but nothing in this sentence shall be construed as relieving the Participant preparation of any liability for satisfying his or her obligations under the preceding provisions of this Section 5tax returns and reports and tax audits.

Certain Tax Matters. The Participant expressly acknowledges that because (i) During the period from the date of this Award consists of an unfunded and unsecured promise by Agreement to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, (A) timely file all tax returns (“Post-Signing Returns”) required to deliver Shares be filed by or on behalf of each such entity; (B) timely pay all taxes due and payable; (C) accrue a reserve in the futurebooks and records and financial statements of any such entity in accordance with past practice for all taxes payable but not yet due; (D) promptly notify Parent of any suit, subject to the terms hereofclaim, it action, investigation, proceeding or audit (collectively, “Actions”) that is not possible to make a so-called “83(b) election” or becomes pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum material amount of tax and not settle or compromise any such Action without Parent’s consent; (E) not make any material tax election or settle or compromise any material tax liability, other than with Parent’s consent or other than in the ordinary course of business; and (F) cause all existing tax sharing agreements, tax indemnity obligations by (i) authorizing the Company to withhold a number of Shares and similar agreements, arrangements or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements practices with respect to taxes to which the Company or any of its Subsidiaries is or may be a party or by which the Company or any of its Subsidiaries is or may otherwise be bound to be terminated as of the Closing Date so that after such date neither the Company nor any of its Subsidiaries shall have any further rights or liabilities thereunder. Any tax withholdings then due and has committed (and by holding returns described in this Award the Participant Section 4.01(d) shall be deemed to have committed) to pay complete and correct in cash all tax withholdings required at any later time in respect material respects and shall be prepared on a basis consistent with the past practice of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participantin a manner that does not distort taxable income (e.g., but nothing in this sentence by deferring income or accelerating deductions); provided that no Post-Signing Returns shall be construed as relieving the Participant of filed with any liability for satisfying his or her obligations under the preceding provisions of this Section 5taxing authority without Parent’s prior written consent.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists of an unfunded (a) Each Party shall reasonably cooperate (and unsecured promise by the Company cause its Affiliates to deliver Shares in the futurereasonably cooperate), subject as and to the terms hereofextent reasonably requested by each other Party, it is not possible in connection with any Tax Return or any examination or other Proceeding with respect to Taxes or Tax Returns. Such cooperation shall include the retention and provision of records and information which are reasonably relevant to any such Tax Return, audit or other Proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and making available to the shareholders of JAWS prior to the Closing information reasonably necessary to compute any income of any such holder (or its direct or indirect owners) arising (i) if applicable, as a result of JAWS status as a “passive foreign investment company” within the meaning of Section 1297(a) of the Code or a “controlled foreign corporation” within the meaning of Section 957(a) of the Code for any taxable period ending on or prior to the Closing, including timely providing (A) a PFIC Annual Information Statement to enable such holders to make a so-called “83(bQualifying Electing Fund” election under Section 1295 of the Code for such taxable period, and (B) electioninformation to enable applicable holders to report their allocable share of “subpart F” income under Section 951 of the Code for such taxable period and (ii) under Section 367(b) of the Code and the Treasury Regulations promulgated thereunder as a result of the Domestication. Following the Closing, the Company, the Company’s Subsidiaries and Seller shall (and Seller shall cause its Affiliates to) retain all books and records with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (or any portion thereof), are subject Tax matters pertinent to the Participant’s promptly paying, or in respect Company and each Subsidiary relating to any taxable period beginning before the Closing Date until the expiration of any later requirement the statute of withholding, being liable promptly to pay at such time as such withholdings are duelimitations (and, to the Company in cash (or extent notified by such other means as may be acceptable the Seller, any extensions thereof) of the respective taxable periods, and to the Committee in its discretion) abide by all taxes required to be withheld, if any, in respect of this Awardrecord retention agreements entered into with any Tax Authority. The Participant shall, at his Seller shall (and shall cause its Affiliates to) provide any information reasonably requested to allow New JAWS or her election, be permitted the Company and each Subsidiary to satisfy comply with any information reporting or withholding requirements contained in the statutory minimum Code or other applicable Laws or to compute the amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares payroll or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements other employment Taxes due with respect to tax withholdings then due and has committed (and by holding any payment made in connection with this Award Agreement. For the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect avoidance of the transfer of such sharesdoubt, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 56.1(a) shall not apply to any dispute or threatened dispute among the Parties.

Certain Tax Matters. (a) The Participant expressly acknowledges that because this Award consists Equityholder Representative shall prepare, or cause to be prepared, at the cost and expense of an unfunded and unsecured promise by the Company to deliver Shares in the futureCompany, subject to the terms hereof, it is not possible to make a so-called “83(b) election” all income Tax Returns with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement Pass-Through Income Taxes of this Award (each Group Company for any taxable period ending on or any portion thereof), are subject prior to the Participant’s promptly paying, or in respect of Closing Date and any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the ParticipantStraddle Period, in each case, having an aggregate Fair Market Value that are due after the Closing Date (measured on collectively, the date such Shares would “Equityholders Prepared Returns”). Each Equityholders Prepared Return shall be prepared in a manner consistent with the Group Companies’ past practices except as otherwise required by applicable Law. Each Equityholders Prepared Return shall be delivered or are transferred submitted to the CompanyBuyer for review and comment no later than thirty (30) days prior to the due date for filing such Tax Return (taking into account applicable extensions). The Equityholder Representative shall consider in good faith all reasonable comments received from the Buyer no later than ten (10) days prior to the due date for filing any such Tax Return (taking into account applicable extensions) and the Buyer will cause such Tax Returns to be timely filed and will provide a copy of such file Tax Returns to the Equityholder Representative. Notwithstanding the foregoing, as applicableeach Tax Return described in this Section 10.1(a) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction for a taxable period that includes the Closing Date (i) for which the “interim closing method” under Section 706 of this Award the Code (or any portion thereofsimilar provision of state, local or non-U.S. Law) unless is available shall be prepared in accordance with such method and until (ii) for which an election under Section 754 of the Participant Code (or the person then holding this Award has remitted any similar provision of state, local or non-U.S. Law) may be made shall make such election. Notwithstanding anything herein to the Company an amount in cash sufficient to satisfy any federalcontrary, state, or local requirements with respect to tax withholdings then due all Transaction Tax Deductions will be allocated and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory treated as attributable to the Committee with respect Pre-Closing Tax Period to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5fullest extent permitted by applicable Law.

Certain Tax Matters. The Participant expressly acknowledges that because (i) During the period from the date of this Award consists Agreement to the Effective Time, (i) the Company and each of an unfunded its Subsidiaries shall timely file all material Tax Returns (“Post-Signing Returns”) required to be filed by each such entity (after taking into account any extensions) and unsecured promise all Post-Signing Returns shall be complete and accurate in all material respects; (ii) the Company and each of its Subsidiaries will timely pay all Taxes due and payable in respect of such Post-Signing Returns; (iii) the Company will accrue a reserve in its books and records and financial statements in accordance with past practice for all Taxes payable by the Company to deliver Shares in the future, subject or any of its Subsidiaries for which no Post-Signing Return is due prior to the terms hereofEffective Time; (iv) the Company and each of its Subsidiaries will promptly notify Parent of any suit, it is not possible to make a so-called “83(b) election” claim, action, investigation, proceeding or audit pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement Tax and will not settle or compromise any such suit, claim, action, investigation, proceeding or audit without Parent’s prior written consent, which consent shall not be unreasonably delayed; (v) none of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereofof its Subsidiaries will make or change any material Tax election without Parent’s consent, which consent shall not be unreasonably withheld; and (vi) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and each of its Affiliates to withhold such amounts from any amounts otherwise payable to Subsidiaries will retain all books, documents and records necessary for the Participant, but nothing in this sentence shall be construed as relieving the Participant preparation of any liability for satisfying his or her obligations under the preceding provisions of this Section 5Tax Returns and Tax audits.

Certain Tax Matters. The Participant expressly acknowledges Between the date of this Agreement and the Effective Time, Parent and the Company shall reasonably cooperate with each other regarding contributions of assets to and/or distributions of assets from Taxable REIT Subsidiaries (the “Requested Transactions”); provided, that because neither the Company nor any of its Subsidiaries shall be required to effect any such contributions or distributions or incur liabilities with respect thereto prior to the date on which all of the conditions set forth in ARTICLE VII (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions) shall have been satisfied or waived in accordance with this Award consists Agreement; provided, further, that neither the Company nor any Subsidiary of an unfunded and unsecured promise by the Company shall be required to take any action that would (a) in the reasonable judgment of the Company after consultation with Parent, (i) adversely affect the classification of the Company as a REIT, (ii) subject the Company to deliver Shares in any “prohibited transactions” Taxes or other material Taxes under Sections 857(b), 860(c) or 4981 of the futureCode, subject (iii) cause the Company to not satisfy the terms hereof, it is not possible to make a so-called “83(brequirements under Section 856(c)(4)(B)(ii) election” of the Code with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunderits ownership of interests in a Taxable REIT Subsidiary, including the right to be issued Shares upon the vesting and settlement of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect iv) as a result of any later requirement distribution of withholdingassets from a Taxable REIT Subsidiary, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing cause the Company to withhold a number not satisfy the asset test of Shares Section 856(c)(4) of the Code, (v) cause the Company to not satisfy the income tests under Sections 856(c)(2) or 856(c)(3) of the Code (determined in the case of clause (v), without taking into account the Merger pursuant to Section 1.1) or (iivi) transferring to cause the Company shares to be unable to make any of Common Stock owned by the Participantrepresentations contained in the form of Representation Letter attached as Exhibit B or (b) in the reasonable judgment of Weil, in each case, having an aggregate Fair Market Value Gotshal & Xxxxxx LLP (measured on the date such Shares would otherwise be delivered or are transferred other applicable Tax counsel to the Company) after consultation with Parent, cause such counsel to be unable to deliver an opinion substantially in the form attached as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless Exhibit A. Parent shall indemnify and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes hold harmless the Company and its Affiliates Subsidiaries and their directors, officers and employees against any and all liabilities, losses, damages, claims, costs, expenses (including reasonable attorney’s fees), interest, awards, judgments and penalties suffered or incurred by them arising from the performance of actions requested by Parent in writing under this Section 6.22, and in the event the Merger is not consummated (other than pursuant to withhold such amounts a termination in accordance with Section 8.4), Parent shall promptly reimburse the Company for any reasonable out-of-pocket costs incurred by the Company or its Subsidiaries arising from any amounts otherwise payable to the Participant, but nothing performance of actions requested by Parent in writing under this Section 6.22. Notwithstanding the first proviso in the first sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 56.22, upon Parent’s request, the Company and its Subsidiaries shall use reasonable best efforts to form or incorporate any entities required to effect the Requested Transactions, prepare all documentation necessary to effect the Requested Transactions and secure all third-party approvals and title commitments necessary to effect the Requested Transactions prior to the satisfaction or waiver of the conditions set forth in ARTICLE VII.

Certain Tax Matters. The Participant expressly acknowledges that because During the period from the date of this Award consists of an unfunded and unsecured promise by Agreement to the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, (i) timely file all tax returns (“Post-Signing Returns”) required to deliver Shares be filed by or on behalf of each such entity; (ii) timely pay all taxes due and payable in respect of such Post-Signing Returns that are so filed; (iii) accrue a reserve in the future, subject books and records and financial statements of any such entity in accordance with past practice for all taxes payable by such entity for which no Post-Signing Return is due prior to the terms hereofEffective Time; (iv) promptly notify Parent of any suit, it is not possible to make a so-called claim, action, investigation, proceeding or audit (collectively, “83(bActions”) election” pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement material tax; (v) not make any material tax election or settle or compromise any Actions in respect of withholdingany tax other than in the ordinary course of business or as required by applicable Legal Provisions; and (vi) cause all existing tax sharing agreements, being liable promptly tax indemnity obligations and similar agreements, arrangements and practices with respect to pay taxes to which the Company or any of its Subsidiaries is or may be a party or by which the Company or any of its Subsidiaries is or may otherwise be bound to be terminated as of the Closing Date so that after such date neither the Company nor any of its Subsidiaries shall have any further rights or liabilities thereunder. The Company shall deliver to Parent at such time as such withholdings are dueor prior to the Closing a certificate from the Company, dated no more than 30 days prior to the Closing Date and signed by a responsible corporate officer of the Company under penalties of perjury, to the Company in cash (or by effect that, to such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheldresponsible corporate officer’s knowledge and belief, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold has not been at any time in the previous five years a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company“United States real property holding corporation”, as applicablesuch term is defined in Section 897(c) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5Code.

Certain Tax Matters. (a) The Participant expressly acknowledges Members agree and acknowledge that because this Award consists the "tax matters partner" of an unfunded and unsecured promise by the Company to deliver Shares in within the futuremeaning of Section 6231(a)(7) of the Code (the "TAX MATTERS PARTNER") shall be Triarc for all taxable years of the Company that end after the close of the 2004 Short Year, subject to and that Sachs (as the terms hereofsole grantor of the Gregory H. Sachs Revocable Trust under Declaration of Trust dated Aprxx 00, it 0000, xxxch trust is not possible to make the sole member of SCM, a sodisregarded entity for United States federal tax purposes) has been, and shall be, the Tax Matters Partner of the Company for all taxable years of the Company that end on or before the close of the 2004 Short Year (such taxable years, "PRE-called “83(b) election” with respect to this AwardCLOSING TAX PERIOD"). The Participant expressly acknowledges and agrees that Tax Matters Partner shall have the Participant’s rights hereunder, including the right authority to be issued Shares upon the vesting and settlement of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to represent the Company in cash (connection with any audit, claim for refund or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his administrative or her election, be permitted to satisfy the statutory minimum amount of such judicial proceeding involving any asserted tax obligations by (i) authorizing the Company to withhold a number of Shares liability or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee refund with respect to the payment Company or the Members in their capacity as such (any such audit, claim for refund, or proceeding relating to an asserted tax liability or refund referred to herein as a "CONTEST"); PROVIDED, that, with respect to any Contest related to a Pre-Closing Tax Period, Triarc shall have the right to participate in such Contest at its own expense, and Sachs shall not be able to settle, compromise and/or concede any portion of such taxesContest that is reasonably likely to give rise to gain or gross income (or loss of deduction or adverse effect on any tax attribute), including any timing differences, with respect to Triarc, or of the Company for any taxable year that ends after the close of the 2004 Short Year in excess of $500,000, without the consent of Triarc, which consent shall not be unreasonably withheld or delayed; PROVIDED, further, that with respect to any Contest related to any taxable year of the Company that begins after the close of the 2004 Short Year, Triarc shall consult with Sachs regarding the settlement, compromise and/or concession any portion of such Contest that is reasonably likely to have a material effect on the tax liability of any Sachs Affiliated Party or any Roberts Affiliated Party. The Participant also authorizes Triarc shall be entitled to be reimbursed by the Company for all costs and expenses incurred by it as the Tax Matters Partner in connection with any administrative or judicial proceeding affecting tax matters of the Company and its Affiliates the Members in their capacity as such and to withhold such amounts from be indemnified by the Company (solely out of Company assets) with respect to any amounts otherwise payable to the Participant, but nothing action brought against it in this sentence shall be construed as relieving the Participant connection with any judgment in or settlement of any liability such proceeding. Sachs shall not be entitled to be reimbursed by the Company for satisfying his any costs or her obligations under expenses incurred by him as the preceding provisions Tax Matters Partner in connection with any administrative or judicial proceeding affecting tax matters of the Company and the Members in their capacity as such, or to be indemnified by the Company with respect to any action brought against him in connection with any judgment in or settlement of any such proceeding. Any Member who enters into a settlement agreement with respect to any Company item shall notify the Tax Matters Partner of such settlement agreement and its terms within 30 days after the date of settlement. This provision shall survive any termination of this Section 5Agreement.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists (a) In the event (i) of an unfunded and unsecured promise a Final Determination (as defined below) that, due to any reason (including by the Company to deliver Shares in the future, subject to reason of any of the terms hereofof Series A Preferred Stock and Series B Preferred Stock) other than an act or failure to act of any Noteholder (including by reason of the application of IRC Section 246(c) or IRC Section 246A) or any Noteholder being other than a corporation, it dividends paid or accrued or deemed paid or accrued on the December 2002 Preferred Stock are not eligible for the dividends received deduction provided under the Dividends Deduction Laws (the "DIVIDENDS-RECEIVED DEDUCTION"), (ii) any Dividends Deduction Law or any similar or corresponding state or local law is not possible amended to make a soreduce or eliminate or otherwise limit the Dividends-called “83(bReceived Deduction available to any Noteholder or (iii) election” any dividend with respect to this Award. The Participant expressly acknowledges and agrees the December 2002 Preferred Stock does not constitute, in whole or in part, a dividend for federal income tax purposes or such dividend is subject to Section 1059 of the IRC (in either case, an "EXCESS DISTRIBUTION"), the Company shall pay to Noteholders with respect to each such dividend payment, no later than the Payment Date (as defined below), an additional payment (the "GROSS-UP PAYMENT") such that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum net amount of such Gross-Up Payment received and retained by such Noteholder after payment by such Noteholder of any federal, state and local income tax obligations by payable with respect to such Gross-Up Payment shall equal, in the case of (i) authorizing the Company to withhold a number of Shares or (ii) transferring to above, the Company shares of Common Stock owned by difference between (x) the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or and local requirements income tax payable by such Noteholder with respect to such dividend in its taxable year in which the dividend was paid or deemed paid and (y) the federal, state, and local income tax withholdings then due which would have been payable by such Noteholder in its taxable year in which the dividend was paid or deemed paid if the events described in (i) or (ii) had not occurred and has committed in the case of (and iii) above, an amount which, when taken together with the aggregate distributions (whether treated as dividends or Excess Distributions for federal income tax purposes) paid or deemed paid to such Noteholder during any taxable year, would cause such Noteholders' net yield in dollars (after taking into effect the federal income tax consequences of treating the Excess Distributions received by holding this Award such Noteholder as capital gain received upon the Participant shall be deemed to have committedtaxable sale or exchange of the December 2002 Preferred Stock) to pay be equal to the net yield in cash all tax withholdings required at any later time in respect dollars which would have been received by such Noteholder had none of the transfer distributions paid or deemed paid to such Noteholder during such taxable year constituted Excess Distributions, in all cases together with any interest or penalties actually payable by such Noteholder to the IRS or any other applicable taxing authority by reason of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5events.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists of an unfunded and unsecured promise by the Company to deliver Shares in the future, subject Notwithstanding anything to the terms hereofcontrary in this Agreement, it is not possible to make a so-called “83(b) election” the Stockholders shall have no Liability or other obligation with respect to this AwardTaxes of the Company or any of its Subsidiaries attributable (determined on a “with or without” basis) to the [*]. The Participant expressly acknowledges Further, (i) any Liability of the Stockholders hereunder with respect to Taxes and agrees that the Participant’s rights hereunder, including the right of the Stockholders to any Tax Refunds (including pursuant to clause (ii)) shall be issued Shares upon based on the vesting Calculation Principles and settlement of this Award (ii) to the extent that a Tax Refund for a Pre-Closing Period (or any the portion thereof), are subject to the Participant’s promptly paying, or in respect of any later requirement Straddle Period through the end of withholdingthe Closing Date) would be available (including by way of an amended Tax Return, being liable a carryback claim or otherwise) if the [*] did not occur, the Purchaser shall promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by Tax Refund to the Stockholder Representative (ior its designee) authorizing upon determination that such Tax Refund would be available. Purchaser shall provide the Stockholder Representative with information and cooperation necessary to make such determination. With respect to the sale, distribution or other disposition of (x) the [*] and [*], the Tax Returns of the Company to withhold a number and its Subsidiaries shall report an amount realized based on the purchase price for the [*] and [*] and (y) the [*], the Tax Returns of Shares or (ii) transferring the Company and its Subsidiaries shall report an amount realized treating the gross fair market value of the assets acquired in the [*] as equal to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee [*] with respect to the payment of such taxesrelevant [*]. The Participant also authorizes Stockholders shall have no Liability or other obligation under this Agreement if a Tax Proceeding determines that the amount realized with respect thereto should be treated as a higher amount. The Pre-Closing Benefits shall not be reported in a post-Closing Tax period and shall be reported in Pre-Closing Periods (or the portion of any Straddle Period ending on the Closing Date). Notwithstanding anything to the contrary in this Agreement, any items of income or gain and Liability for Taxes attributable to actions taken by the Company and or its Affiliates to withhold such amounts from any amounts otherwise payable to on the Participant, Closing Date but nothing in this sentence after the Closing shall be construed treated as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5occurring in a post-Closing Tax period.

Certain Tax Matters. The Participant expressly acknowledges Cash Award is intended to be exempt from the requirements of Section 409A on account of the short-term deferral exclusion or alternatively, if it is determined that because the exemption is not applicable, then it is intended to comply with the requirements of Section 409A and must be construed consistently with that section. Notwithstanding anything in this Award consists Agreement to the contrary, for persons who are or become eligible for Retirement during the Term, if portions of an unfunded and unsecured promise the Cash Award vest in connection with the undersigned’s “separation from service” within the meaning of Section 409A, as determined by the Company to deliver Shares Company), and if (x) the undersigned is then a “specified employee” within the meaning of Section 409A at the time of such separation from service (as determined by the Company, by which determination the undersigned agrees he or she is bound) and (y) the payment of part or all of the Cash Award will result in the future, subject imposition of additional tax under Section 409A if distributed to the terms hereof, it is not possible to make a so-called “83(b) election” with respect to this Award. The Participant expressly acknowledges and agrees that undersigned within the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at six month period following his or her electionseparation from service, then the distribution under such accelerated portions of the Cash Award will not be permitted to satisfy made until the statutory minimum amount earlier of such tax obligations by (i) authorizing the Company to withhold a number date six months and one day following the date of Shares his or her separation from service or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying 10th day after his or her obligations under date of death. Neither the preceding Company nor any participant will have the right to accelerate or defer the delivery of any payment except to the extent specifically permitted or required by Section 409A. In any event, the Company makes no representations or warranty and will have no liability to participants or any other person, if any provisions of or distributions under this Agreement are determined to constitute deferred compensation subject to Section 5.409A but not to satisfy the conditions of that section. Very truly yours, [Participant’s Name] Dated: The foregoing Performance-Based Cash Award Agreement is hereby accepted: AMERICAN SCIENCE & ENGINEERING, INC. By: Name: Title:

Certain Tax Matters. (a) The Participant expressly acknowledges Tax Matters Member (as defined below) shall cause to be prepared all federal, state and local tax returns of the Company for each year for which such returns are required to be filed and shall cause such returns to be timely filed, and, except as herein otherwise provided shall reasonably determine the appropriate treatment of each item of income, gain, loss, deduction and credit of the Company and the accounting methods and conventions under the tax laws of the United States, the several states and other relevant jurisdictions as to the treatment of any such item or any other method or procedure related to the preparation of such tax returns. The Tax Matters Member may cause the Company to make or refrain from making any and all elections permitted by such tax laws. Each Member agrees that because this Award consists he shall not, except as otherwise required or provided by applicable law or regulatory requirements, (i) treat, on such Member’s individual income tax returns, any item of an unfunded and unsecured promise income, gain, loss, deduction or credit relating to such Member’s interest in the Company in a manner inconsistent with the treatment of such item by the Company as reflected on the Form K-1 or other information statement furnished by the Company to deliver Shares such Member for use in the future, subject to the terms hereof, it is not possible to make a so-called “83(b) election” with respect to this Award. The Participant expressly acknowledges and agrees that the Participantpreparing such Member’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (or any portion thereof), are subject to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such income tax obligations by (i) authorizing the Company to withhold a number of Shares returns or (ii) transferring file any claim for refund relating to the Company shares any such item based on, or which would result in, such inconsistent treatment. In respect of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to income tax audit of any tax return of the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred the filing of any amended return or claim for refund in satisfaction connection with any item of this Award (income, gain, loss, deduction or credit reflected on any tax return of the Company, or any portion thereofadministrative or judicial proceedings arising out of or in connection with any such audit, amended return, claim for refund or denial of such claim, (A) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant Tax Matters Member shall be deemed authorized to have committed) to pay in cash all tax withholdings required at any later time in respect of act for, and the transfer of such sharesTax Matters Member’s decision shall be final and binding upon, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable all Members except to the Participantextent a Member shall properly elect to be excluded from such proceeding pursuant to the Code, but nothing (B) all expenses incurred by the Tax Matters Member in this sentence connection therewith (including attorneys’, accountants’ and other experts’ fees and disbursements) shall be construed as relieving expenses of, and payable by, the Participant Company and (C) no Member shall have the right to (1) participate in the audit of any liability for satisfying his Company tax return, or her obligations under (2) participate in any administrative or judicial proceedings conducted by the preceding provisions Company or the Tax Matters Member arising out of or in connection with any such audit; provided that the Company or the Tax Matters Member will keep the Members reasonably informed of any such audit or proceeding. Except as otherwise provided by applicable law or regulatory requirements, all Members agree that all tax filings they may make will be consistent with the tax returns prepared by the Tax Matters Member and shall not take any tax position inconsistent with the tax positions taken by the Company. The Members agree that the Capital Account of the Rollover Members as of the date of this Section 5Agreement shall be zero and all tax returns will be filed in a manner consistent therewith.

Certain Tax Matters. Parent shall continue at least one significant historical business line of Target, or shall use at least a significant portion of Target's historical business assets in a business, in each case within the meaning of Treasury Regulation Section 1.368-1(d). ARTICLE VIII CONDITIONS PRECEDENT 8.1 Conditions to Obligations of Each Party to Effect the Merger. The Participant expressly acknowledges that because respective obligations of each party hereto to consummate and effect this Award consists of an unfunded Agreement and unsecured promise by the Company to deliver Shares in the future, transactions contemplated hereby shall be subject to the terms hereofsatisfaction at or prior to the Effective Time of each of the following conditions, it is not possible to make a so-called “83(bany of which may be waived, in writing, by agreement of the parties hereto: (a) election” with respect to this AwardThis Agreement and the Merger shall have been approved and adopted by the requisite vote of the holders of Parent Common Stock and by the requisite vote of the holders of Target Common Stock. The Participant expressly acknowledges and agrees that (b) No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the Participant’s rights hereunderconsummation of the Merger, including nor any proceeding brought by an administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, seeking any of the right to foregoing, shall be issued Shares upon the vesting and settlement of this Award (pending; nor shall there be any action taken, or any portion thereof)statute, are subject rule, regulation or order enacted, entered, enforced or deemed applicable to the Participant’s promptly payingMerger, or in respect which makes the consummation of any later requirement of withholdingthe Merger illegal. (c) Parent, being liable promptly to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheldTarget and Merger Sub and their respective subsidiaries, if any, shall have timely obtained from each Governmental Entity all approvals, waivers and consents, if any, necessary for consummation of or in respect connection with the Merger and the several transactions contemplated hereby, including such approvals, waivers and consents as may be required under the federal securities and state Blue Sky laws. (d) Simultaneous with the occurrence of the Closing hereunder, the Closing shall have occurred under the Share Purchase Agreement, dated as of January 15, 1997, among Parent and the shareholders of CEWI (the "Purchase Agreement"). 8.2 Additional Conditions to Obligations of Target to Effect the Merger. The obligations of Target to consummate and effect this Agreement and the transactions contemplated hereby shall be subject to the satisfaction at or prior to the Effective Time of each of the following conditions, any of which may be waived, in writing, by Target: (a) Parent and Merger Sub shall have performed and complied in all material respects with all covenants, obligations and conditions of this Award. The Participant shall, at his Agreement required to be performed and complied with by them on A-23 123 or her election, prior to the Effective Time and the representations and warranties of Parent and Merger Sub in this Agreement shall be permitted true and correct in all material respects (or in all respects in the case of any representation or warranty that is qualified by its terms by a reference to satisfy Material Adverse Effect or otherwise the statutory minimum amount concept of materiality) when made and on and as of the Effective Time as though such representations and warranties were made on and as of such tax obligations date. (b) Target shall have received a certificate executed on behalf of Parent by its Chief Financial Officer certifying that the conditions specified in Section 8.2(a) have been fulfilled. (ic) authorizing Target shall have received a legal opinion of Holme Roberts & Owen LLP, counsel to Parent, substantially in the Company to withhold xxxm attached hereto as Exhibit 8.2(c). (d) The guaranties given by Messrs. Charles E. Hewitson, Greg Hewitson and Matthew J. Hxxxxxxx xx xxxxxxxxated by xxxx cexxxxx Xxxx Agreement between First Interstate Bank of Oregon, N.A. and Target, dated May 30, 1996 shall have been terminated or Messrs. Charles E. Hewitson, Greg Hewitson and Maxxxxx X. Xxxxxxxx xxxxx xxxx bexx xxxxxxxx xxxx xxx xxxxxxxxx thereunder as a number result of Shares repayment of the related credit facilities or otherwise. (iie) transferring Parent shall have executed and delivered to the Company shares holders of Target Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements agreement with respect to tax withholdings then due demand and has committed piggyback registration rights of such holders (and by holding this Award the Participant "Registration Rights Agreement"), which Registration Rights Agreement shall be deemed substantially in the form of Exhibit 8.2(e) attached hereto. (f) Parent shall have granted to have committedthe members of Target's management identified on Schedule 8.2(f) the employee stock options specified in such schedule. 8.3 Additional Conditions to pay in cash all tax withholdings required the Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to consummate and effect this Agreement and the transactions contemplated hereby shall be subject to the satisfaction at any later time in respect or prior to the Effective Time of each of the transfer following conditions, any of which may be waived, in writing, by Parent: (a) Target shall have performed and complied in all material respects with all covenants, obligations and conditions of this Agreement required to be performed and complied with by it on or prior to the Effective Time and the representations and warranties of Target in this Agreement shall be true and correct in all material respects (or in all respects in the case of any representation or warranty that is qualified by its terms by a reference to Material Adverse Effect or otherwise by the concept of materiality) when made and on and as of the Effective Time as though such representations and warranties were made on and as of such sharestime. (b) Parent shall have received a certificate, or has made other arrangements dated as of the Effective Time, executed on behalf of Target by its President and its Chief Financial Officer certifying that the conditions specified in Section 8.3(a) have been fulfilled. (c) Parent shall have received a legal opinion from Hershner, Hunter, Andrews, Neill & Smith, LLP, legal counsel to Xxxxxx, xxxxtantially in form attached hereto as Exhibit 8.3(c). (d) Parent shall have been furnished with evidence satisfactory to it of the Committee with respect to the payment consent or approval of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence those persons whose consent or approval shall be construed required in connection with the Merger under any material contract of Target otherwise. (e) There shall not have occurred any Material Adverse Effect on Target. A-24 124 (f) Parent shall have received letters of resignation, effective as relieving of the Participant Effective Time, executed and tendered by each of any liability for satisfying his the then incumbent directors of Target. (g) The Voting Agreement, dated the date hereof (the "Voting Agreement"), among Messrs. Charles E. Hewitson, Greg Hewitson and Xxxxxxx X. Xxxxxson and Xxxxxx xxxxx xx xx xxxl force and xxxxxx as of the Effective Time and Messrs. Charles E. Hewitson, Greg Hewitson and Matthew X. Xxxxxsox xxxxx xxxx xxxxxrmed and complixx xx xxx xxxxxxxx respects with all covenants, obligations and conditions of the Voting Agreement required to be performed or her obligations under the preceding provisions of this Section 5complied with by them.

Certain Tax Matters. The Participant expressly acknowledges If the Selected Dealers, among themselves or with the Underwriters, are deemed to constitute a partnership for Federal income tax purposes, then we elect to be excluded from the application of Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986, as amended, and agree not to take any position inconsistent with that because election. You are hereby authorized, in your discretion, to execute and file on our behalf such evidence of this Award consists of an unfunded and unsecured promise election as may be required by the Company Internal Revenue Service. In connection with the Offering, we shall be liable for your proportionate amount of any tax, claim, demand or liability that may be asserted against us alone or against one or more Selected Dealers participating in such Offering, or against you or the Underwriters, based upon the claim that the Selected Dealers, or any of them, constitute an association, an unincorporated business or other entity, including, in each case, our proportionate amount of any expense incurred in defending against any such tax, claim demand or liability. By signing this Agreement we confirm that our subscription to, or our acceptance of any reservation of, any Securities pursuant to deliver an Offering shall constitute (i) acceptance of and agreement to the terms and conditions of this Agreement (as supplemented or amended pursuant to Section 4), together with and subject to any supplementary terms and conditions contained in any Written Communication from you in connection with such Offering, all of which shall constitute a binding agreement between us and you, individually or as representative of any Underwriters, (ii) confirmation that our representations and warranties set forth in Section 3 hereof are true and correct at that time, (iii) confirmation that our agreements set forth in Sections 2 and 3 hereof have been and will be fully performed by us to the extent and at the times required thereby and (iv) acknowledgment that we have requested and received from you sufficient copies of the final prospectus with respect to such Offering in order to comply with our undertakings in Section 3(a) hereof. Very truly yours, (Name of Firm) By: Print Name: Title: Confirmed as of the date first above written: SANDLER X’XXXXX & PARTNERS, L.P. BY: SANDLER X’XXXXX & PARTNERS CORP., THE SOLE GENERAL PARTNER Name: Title: EXHIBIT B TO AGENCY AGREEMENT FORM OF UNDERWRITING AGREEMENT Shares in Xxxxxxx Bancorp Inc. (a Maryland corporation) Common Stock (par value $0.01 per share) UNDERWRITING AGREEMENT , 2014 SANDLER X’XXXXX & PARTNERS, L.P. AS REPRESENTATIVE OF THE SEVERAL UNDERWRITERS X/X XXXXXXX X’ XXXXX & PARTNERS, L.P. 1251 Avenue of the futureXxxxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: Xxxxxxx Bancorp Inc., a Maryland corporation (the “Company”), proposes, subject to the terms hereofand conditions stated herein, it to issue and sell to the Underwriters named in Schedule I hereto (the “Underwriters”), for whom Sandler X’Xxxxx & Partners, L.P. (“Sandler X’Xxxxx”) is not possible to make a so-called acting as representative (in such capacity, the “83(bRepresentative”), an aggregate of shares (the “Shares”) election” with respect to this Awardof the common stock, par value $0.01 per share (“Common Stock”), of the Company. The Participant expressly acknowledges and agrees that shares of Common Stock to be sold by the Participant’s rights hereunderCompany in the Offerings (as hereinafter defined), including the right Shares being sold pursuant to this Agreement, are hereinafter referred to collectively as the “Securities.” The Securities are being sold in accordance with the Plan of Conversion and Reorganization (the “Plan”) adopted by the Boards of Directors of Xxxxxxx Savings Bancorp, Inc., a federal “mid-tier” holding company (the “Mid-Tier Company”), Xxxxxxx MHC, a federal mutual holding company (the “MHC”), and Xxxxxxx Savings Bank, a federally chartered stock savings bank (the “Bank”), pursuant to which the MHC intends to convert from the mutual to stock holding company form of organization pursuant to the following steps: (i) the establishment of the Company as a Maryland-chartered subsidiary of the Mid-Tier Company; (ii) the merger of the MHC with and into the Mid-Tier Company with the Mid-Tier Company as the surviving entity (the “MHC Merger”); (iii) the merger of the Mid-Tier Company with and into the Company with the Company as the surviving entity (the “Mid-Tier Company Merger”); and (iv) the sale and exchange of Common Stock pursuant to the Plan and the regulations of the Board of Governors of the Federal Reserve System (the “FRB”) . As a result of the Mid-Tier Company Merger, the Bank will become a wholly owned subsidiary of the Company. The outstanding shares of common stock of the Mid-Tier Company held by persons other than the MHC will be converted into Common Stock pursuant to an exchange ratio as defined in the Plan, which will result in the holders of such shares receiving and owning in the aggregate approximately the same percentage of the Common Stock to be issued Shares outstanding upon the vesting completion of the conversion as the percentage of Mid-Tier Company common stock owned by them in the aggregate immediately prior to consummation of the conversion before giving effect to (a) cash paid in lieu of any fractional interests of Common Stock and settlement (b) any Securities purchased in the Offerings. Pursuant to the Plan, the Company offered to certain depositors and borrowers of this Award the Bank and to the Bank’s tax qualified employee benefit plans, including the Bank’s employee stock ownership plan (or any portion thereofthe “ESOP”), rights to subscribe for the Securities in a subscription offering (the “Subscription Offering”). In addition, the Securities were offered to certain members of the general public in a community offering (the “Community Offering”). The Community Offering, together with the Subscription Offering, are subject herein referred to as the Participant“Subscription and Community Offering.” The Subscription and Community Offering, and the underwritten public offering (“Public Offering”) to which this Agreement relates, are hereinafter referred to collectively as the “Offerings.” The conversion and reorganization of the MHC from mutual to stock holding company form, the formation of the Company, the MHC Merger, the Mid-Tier Company Merger, the exchange of the Mid-Tier Company’s promptly payingpublic shareholders’ shares for shares of Common Stock (the “Exchange Shares”), or in respect the acquisition of any later requirement the capital stock of withholding, being liable promptly to pay at such time as such withholdings are due, to the Bank by the Company in cash and the Offerings are hereinafter referred to collectively as the “Conversion.” The Company has filed with the Securities and Exchange Commission (or by the “Commission”) a registration statement on Form S-1 (No. 333-192598), including a related prospectus, for the registration of the sale of the Securities under the Securities Act of 1933, as amended (the “Securities Act”), has filed such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheldamendments thereto, if any, and such amended prospectuses as may have been required to the date hereof by the Commission in respect order to declare such registration statement effective, and will file such additional amendments thereto and such amended prospectuses and prospectus supplements as may hereafter be required. Such registration statement (as amended to date, if applicable, and as from time to time amended or supplemented hereafter, including post-effective amendments thereto containing the preliminary prospectus and the final prospectus for the Public Offering, if any) and the prospectuses constituting a part thereof (including in each case all documents incorporated or deemed to be incorporated by reference therein and the information, if any, deemed to be a part thereof pursuant to the rules and regulations of the Commission promulgated under the Securities Act, as from time to time amended or supplemented pursuant to the Securities Act or otherwise (the “Securities Act Regulations”)) as well as the preliminary prospectus, if any, as defined in Rule 430A of the Securities Act Regulations (the “Preliminary Prospectus”) and the final prospectus for the Public Offering, if any, contained in a post-effective amendment to the Registration Statement or a new registration statement), are hereinafter referred to as the “Registration Statement” and the “Prospectus,” respectively, except that if any revised prospectus shall be used by the Company in connection with the Subscription and Community Offering, the Syndicated Offering or the Public Offering, if any, which differs from the Prospectus on file at the Commission at the time the Registration Statement becomes effective (whether or not such revised prospectus is required to be filed by the Company pursuant to Rule 424(b) of the Securities Act Regulations), the term “Prospectus” shall refer to such revised prospectus from and after the time it is first provided to the Representative for such use and prior to the termination of the Public Offering of the Shares by the Underwriters. Concurrently with the execution of this Award. The Participant shallAgreement, at his or her election, be permitted the Company is delivering to satisfy the statutory minimum amount Representative copies of such tax obligations by (i) authorizing the Prospectus of the Company to withhold a number of Shares or (ii) transferring to be used in the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligationsPublic Offering. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee Such prospectus contains information with respect to the payment of such taxes. The Participant also authorizes Bank, the Company Mid-Tier Company, the Company, the MHC and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5Common Stock.

Certain Tax Matters. The Participant expressly acknowledges If the Selected Dealers, among themselves or with the Underwriters, are deemed to constitute a partnership for Federal income tax purposes, then we elect to be excluded from the application of Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986, as amended, and agree not to take any position inconsistent with that because election. You are hereby authorized, in your discretion, to execute and file on our behalf such evidence of this Award consists of an unfunded and unsecured promise election as may be required by the Company Internal Revenue Service. In connection with the Offering, we shall be liable for your proportionate amount of any tax, claim, demand or liability that may be asserted against us alone or against one or more Selected Dealers participating in such Offering, or against you or the Underwriters, based upon the claim that the Selected Dealers, or any of them, constitute an association, an unincorporated business or other entity, including, in each case, our proportionate amount of any expense incurred in defending against any such tax, claim demand or liability. By signing this Agreement we confirm that our subscription to, or our acceptance of any reservation of, any Securities pursuant to deliver an Offering shall constitute (i) acceptance of and agreement to the terms and conditions of this Agreement (as supplemented or amended pursuant to Section 4), together with and subject to any supplementary terms and conditions contained in any Written Communication from you in connection with such Offering, all of which shall constitute a binding agreement between us and you, individually or as representative of any Underwriters, (ii) confirmation that our representations and warranties set forth in Section 3 hereof are true and correct at that time, (iii) confirmation that our agreements set forth in Sections 2 and 3 hereof have been and will be fully performed by us to the extent and at the times required thereby and (iv) acknowledgment that we have requested and received from you sufficient copies of the final prospectus with respect to such Offering in order to comply with our undertakings in Section 3(a) hereof. Very truly yours, (Name of Firm) By: Print Name: Title: Confirmed as of the date first above written: SANDLER X’XXXXX & PARTNERS, L.P. BY: SANDLER X’XXXXX & PARTNERS CORP., THE SOLE GENERAL PARTNER Name: Title: EXHIBIT B TO AGENCY AGREEMENT FORM OF UNDERWRITING AGREEMENT Shares in Entegra Financial Corp. (a North Carolina corporation) Common Stock (no par value) UNDERWRITING AGREEMENT , 2014 SANDLER X’XXXXX & PARTNERS, L.P. AS REPRESENTATIVE OF THE SEVERAL UNDERWRITERS X/X XXXXXXX X’XXXXX & PARTNERS, L.P. 1251 Avenue of the futureXxxxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: Entegra Financial Corp., a North Carolina corporation (the “Company”), proposes, subject to the terms hereofand conditions stated herein, it to issue and sell to the Underwriters named in Schedule I hereto (the “Underwriters”), for whom Sandler X’Xxxxx & Partners, L.P. (“Sandler X’Xxxxx”) is not possible to make a so-called acting as representative (in such capacity, the “83(bRepresentative”), an aggregate of shares (the “Shares”) election” with respect to this Awardof the common stock, no par value (the “Common Stock”), of the Company. The Participant expressly acknowledges and agrees that shares of Common Stock to be sold by the Participant’s rights hereunderCompany in the Offerings (as hereinafter defined), including the right Shares being sold pursuant to be issued Shares upon this Agreement, are hereinafter referred to collectively as the vesting and settlement “Securities.” The Securities are being offered for sale in accordance with the Plan of this Award Conversion (or any portion thereofthe “Plan”) adopted by the Boards of Directors of Macon Bancorp, a North Carolina mutual holding company (the “MHC”), are subject Macon Bank, Inc., a North Carolina chartered stock savings bank (the “Bank”) and the Company pursuant to which (i) the MHC will convert from a North Carolina-chartered mutual holding company to a North Carolina stock corporation and (ii) the MHC will merge with and into the Company, with the Company as the surviving entity (the “MHC Merger”), whereby the Bank will become a wholly owned subsidiary of the Company and the liquidation interests in the MHC constructively received by the members of the MHC immediately prior to the ParticipantMHC’s promptly payingconversion will automatically, or without further action on the part of the holders thereof, be preserved as an interest in respect a liquidation account in the Company (“Liquidation Account”); and (iii) the Company will offer for sale the Securities. Pursuant to the Plan, the Company offered to certain depositors and borrowers of any later requirement the Bank rights to subscribe for the Securities in a subscription offering (the “Subscription Offering”). In addition, the Securities were offered to certain members of withholdingthe general public in a community offering (the “Community Offering”), being liable promptly with preference given first to pay at such time natural persons (including trusts of natural persons) residing in Buncombe, Clay, Cherokee, Graham, Haywood, Henderson, Jackson, Macon, Polk, Xxxxx and Transylvania Counties in North Carolina and Xxxxx County in Georgia, and second to other members of the general public. The Community Offering, together with the Subscription Offering, are herein referred to as such withholdings the “Subscription and Community Offering.” The Subscription and Community Offering, and the underwritten public offering (the “Public Offering”) are duehereinafter referred to collectively as the “Offerings.” The conversion and reorganization of the MHC from mutual holding company to stock holding company form, to the formation of the Company, the MHC Merger, the constructive receipt by members of the MHC of liquidation interests in the Company in cash exchange for their liquidation interests in the MHC and the subsequent automatic exchange of such liquidation interests for an interest in the Liquidation Account in the Company and in the liquidation account established by the Bank (or by “Bank Liquidation Account”) and the Offerings are hereinafter referred to collectively as the “Conversion.” The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-1 (No. 333-194641), including a related prospectus, for the registration of the sale of the Securities under the Securities Act of 1933, as amended (the “Securities Act”), has filed such other means as may be acceptable to the Committee in its discretion) all taxes required to be withheldamendments thereto, if any, and such amended prospectuses as may have been required prior to the date hereof by the Commission in respect order to declare such registration statement effective, and will file such additional amendments thereto and such amended prospectuses and prospectus supplements as may hereafter be required. Such registration statement (as amended to date, if applicable, and as from time to time amended or supplemented hereafter, including post-effective amendments thereto containing the preliminary prospectus and the final prospectus for the Public Offering, if any) and the prospectuses constituting a part thereof (including in each case all documents incorporated or deemed to be incorporated by reference therein and the information, if any, deemed to be a part thereof pursuant to the rules and regulations of the Commission promulgated under the Securities Act, as from time to time amended or supplemented pursuant to the Securities Act or otherwise (the “Securities Act Regulations”), as well as the preliminary prospectus, if any, as defined in Rule 430A of the Securities Act Regulations (the “Preliminary Prospectus”) and the final prospectus for the Public Offering, if any, contained in a post-effective amendment to the Registration Statement or a new registration statement), are hereinafter referred to as the “Registration Statement” and the “Prospectus,” respectively, except that if any revised prospectus shall be used by the Company in connection with the Subscription and Community Offering, the Syndicated Offering or the Public Offering, if any, which differs from the Prospectus on file at the Commission at the time the Registration Statement becomes effective (whether or not such revised prospectus is required to be filed by the Company pursuant to Rule 424(b) of the Securities Act Regulations), the term “Prospectus” shall refer to such revised prospectus from and after the time it is first provided to the Representative for such use and prior to the termination of the Public Offering of the Shares by the Underwriters. Concurrently with the execution of this Award. The Participant shallAgreement, at his or her election, be permitted the Company is delivering to satisfy the statutory minimum amount Representative copies of such tax obligations by (i) authorizing the Prospectus of the Company to withhold a number of Shares or (ii) transferring to be used in the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred Public Offering. Such prospectus contains information with respect to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless the MHC, the Bank and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5Securities.

Certain Tax Matters. The Participant expressly acknowledges that because During the period from the date of this Award consists Agreement to the Effective Time, (i) the Company and each of an unfunded its Subsidiaries shall timely file all Tax Returns (“Post-Signing Returns”) required to be filed by each such entity (after taking into account any extensions), and unsecured promise all Post-Signing Returns shall be complete and correct and shall be prepared on a basis consistent with the past practice of the Company; (ii) the Company will accrue a reserve in its books and records and financial statements in accordance with GAAP and past practice for all Taxes payable by the Company to deliver Shares in the future, subject or any of its Subsidiaries for which no Post-Signing Return is due prior to the terms hereofEffective Time; (iii) the Company and each of its Subsidiaries will promptly notify Parent of any suit, it is not possible to make a so-called “83(b) election” claim, action, investigation, proceeding or audit pending against or with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunder, including the right to be issued Shares upon the vesting and settlement of this Award (Company or any portion thereof), are subject to the Participant’s promptly paying, or of its Subsidiaries in respect of any later requirement material Tax and will not settle or compromise any such suit, claim, action, investigation, proceeding or audit without Parent’s prior written consent, which consent shall not be unreasonably delayed; (iv) none of withholdingthe Company or any of its Subsidiaries will amend any material Tax Return or make or change any material Tax election in each case without Parent’s consent, being liable promptly which consent shall not be unreasonably delayed; and (v) the Company and each of its Subsidiaries will retain all books, documents and records necessary for the preparation of Tax Returns and reports and Tax audits. The Company shall deliver to pay Parent at such time as such withholdings are due, or prior to the Company Closing a certificate, in cash (or by such other means as may be acceptable form and substance satisfactory to Parent, duly executed and acknowledged, certifying that the Committee in its discretion) all taxes required to be withheld, if any, payment of the Merger Consideration and any payments made in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Appraisal Shares or (ii) transferring pursuant to the Company shares terms of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or this Agreement are transferred exempt from withholding pursuant to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred Foreign Investment in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other arrangements satisfactory to the Committee with respect to the payment of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5Real Property Tax Act.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists of an unfunded GCFC, Buyer and unsecured promise X'Xxxxxxx shall cooperate (and cause Reserve to cooperate) fully, and to the extent reasonably requested by the Company other party, in connection with the filing of tax returns pursuant to deliver Shares in the futurethis Agreement and any audit, subject to the terms hereof, it is not possible to make a so-called “83(b) election” litigation or other proceeding with respect to this AwardAgreement and any audit, litigation or other proceeding with respect to taxes. The Participant expressly acknowledges Such cooperation shall include the retention and agrees that the Participant’s rights hereunder, including the right to be issued Shares (upon the vesting other party's request) the provision of records and settlement of this Award (information which are reasonably relevant to any such audit, litigation or any portion thereof), are subject other proceeding and making employees available on a mutually convenient basis to the Participant’s promptly paying, or in respect provide additional information and explanation of any later requirement of withholding, being liable promptly material provided hereunder. Buyer and Reserve agree (A) to pay at such time as such withholdings are due, to the Company in cash (or by such other means as may be acceptable to the Committee in its discretion) retain all taxes required to be withheld, if any, in respect of this Award. The Participant shall, at his or her election, be permitted to satisfy the statutory minimum amount of such tax obligations by (i) authorizing the Company to withhold a number of Shares or (ii) transferring to the Company shares of Common Stock owned by the Participant, in each case, having an aggregate Fair Market Value (measured on the date such Shares would otherwise be delivered or are transferred to the Company, as applicable) sufficient to satisfy such obligations. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless books and until the Participant or the person then holding this Award has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements records with respect to tax withholdings then due matters pertinent to Reserve relating to any taxable period beginning before the Closing Date until the expiration of the statute of limitations (and, to the extent notified by Buyer, any extensions thereof) of the respective taxable periods, and has committed to abide by all record retention agreements entered into with any taxing authority, and (and by holding this Award the Participant shall be deemed to have committedB) to pay in cash all tax withholdings required at give the other party reasonable written notice prior to transferring, destroying or discarding any later time in respect of such books and records and, if the transfer other party so requests, Reserve or Buyer, as the case may be, shall allow the other party to take possession of such sharesbooks and records. Buyer and Reserve further agree, upon request, to use their commercially reasonable efforts to obtain any certificate or has made other arrangements satisfactory document from any governmental authority or any other person as may be necessary to the Committee mitigate, reduce or eliminate any tax that could be imposed (including, but not limited to, with respect to the payment Transaction contemplated hereby). The parties further agree that in the event any audit, examination, litigation or other proceeding with any taxing authority in connection with the filing of tax returns pursuant to this Agreement results in the shift of any item of income or deduction from Reserve's pre-closing tax return to its post-closing tax return, or vice versa, then an appropriate post-closing adjustment to the Purchase Price paid pursuant to this Agreement shall be made in order to make whole the party which suffers the economic impact of such taxes. The Participant also authorizes the Company and its Affiliates to withhold such amounts from any amounts otherwise payable to the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5shift.

Certain Tax Matters. The Participant expressly acknowledges that because this Award consists Regardless of an unfunded and unsecured promise any action taken by the Company or, if different, the Affiliate employing the Grantee or to deliver Shares which the Grantee is otherwise providing services (the “Service Recipient”), the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to the Grantee’s participation in the future, subject Plan and legally applicable to the terms hereofGrantee or deemed by the Company or the Service Recipient, it is not possible to make a so-called “83(b) election” with respect to this Award. The Participant expressly acknowledges and agrees that the Participant’s rights hereunderin their discretion, including the right to be issued Shares upon the vesting and settlement of this Award (or any portion thereof), are subject an appropriate charge to the Participant’s promptly paying, or in respect of any later requirement of withholding, being liable promptly to pay at such time as such withholdings are due, Grantee even if legally applicable to the Company in cash or the Service Recipient (or by such other means as “Tax-Related Items”) is and remains the Grantee’s responsibility and may be acceptable to exceed the Committee in its discretion) all taxes required to be amount actually withheld, if any, in respect of this Awardby the Company or the Service Recipient. The Participant shall, at his or her election, be permitted to satisfy Grantee further acknowledges that the statutory minimum amount of such tax obligations by Company and/or the Service Recipient (i) authorizing make no representations or undertakings regarding the Company to withhold a number treatment of Shares any Tax-Related Items in connection with any aspect of the SARs, including, but not limited to, the grant, vesting or exercise of the SARs and the receipt of any cash payment in settlement of the SARs; and (ii) transferring donot commit to and are under no obligation to structure the terms of the grant or any aspect of the SARs to reduce or eliminate the Grantee’s liability for Tax-Related Items or achieve any particular tax result. Further, if the Grantee is subject to Tax-Related Items in more than one jurisdiction, the Company shares of Common Stock owned by and/or the Participant, in each case, having an aggregate Fair Market Value Service Recipient (measured on the date such Shares would otherwise be delivered or are transferred to the Companyformer service recipient, as applicable) sufficient may be required to satisfy such obligationswithhold or account for Tax-Related Items in more than one jurisdiction. No Shares will be transferred in satisfaction of this Award (or any portion thereof) unless and until the Participant or the person then holding this Award has remitted The Grantee agrees to the Company an amount in cash sufficient to satisfy any federal, state, or local requirements with respect to tax withholdings then due and has committed (and by holding this Award the Participant shall be deemed to have committed) to pay in cash all tax withholdings required at any later time in respect of the transfer of such shares, or has made other make adequate arrangements satisfactory to the Committee with respect Company and/or the Service Recipient, as applicable, prior to any relevant tax withholding event, to satisfy all Tax-Related Items. In this regard, the payment of such taxes. The Participant also Grantee authorizes the Company and its Affiliates and/or the Service Recipient, or their respective agents, at their discretion, to withhold such amounts from satisfy any amounts otherwise payable applicable withholding obligations with regard to all Tax-Related Items by one or a combination of the Participant, but nothing in this sentence shall be construed as relieving the Participant of any liability for satisfying his or her obligations under the preceding provisions of this Section 5.following: