Common use of Code Section 280G Clause in Contracts

Code Section 280G. (i) Notwithstanding anything in this Agreement to the contrary, in the event that any severance and other benefits provided to or for the benefit of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control Arrangements”) constitute “parachute payments” within the meaning of Section 280G(b)(2) of the Code (such severance and other benefits being referred to herein as the “Change of Control Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes.

Code Section 280G. (a) If there is a change of ownership or effective control or change in the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G of the Code) (a “280G Change in Control”) and any payment or benefit (including payments and benefits pursuant to this Agreement) that the Executive would receive from the Company or otherwise (a “Transaction Payment”) would (i) Notwithstanding anything in this Agreement to the contrary, in the event that any severance and other benefits provided to or for the benefit of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control Arrangements”) constitute a “parachute paymentspayment” within the meaning of Section 280G(b)(2) 280G of the Code and (such severance and other benefits being referred to herein as the “Change of Control Payments”ii) that would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is availableCompany shall cause to be determined, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) before any amounts of the Code and Transaction Payment are paid to the regulations promulgated thereunder; Executive, which of the following two alternative forms of payment would result in the Executive’s receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that all or (ii) if some portion of the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then Transaction Payment may be subject to the Employer will provide the Employee with a computation of Excise Tax: (A) payment in full of the maximum entire amount of Change the Transaction Payment (a “Full Payment”), or (B) payment of Control Payments only a part of the Transaction Payment so that could be made under the Change of Control Arrangements, Executive receives the largest payment possible without the imposition of the Excise Tax (said a “Reduced Payment”, and Executive shall be entitled to payment of whichever amount that shall result in a greater after-tax amount for Executive. For purposes of determining whether to make a Full Payment or a Reduced Payment, the Company shall cause to be taken into account all applicable federal, state and local income and employment taxes and the Excise Tax (all computed at the highest applicable marginal rate reasonably applicable to Executive, net of the maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that reduction in federal income taxes which could be made pursuant to obtained from a deduction of such state and local taxes). If a Reduced Payment is made, the terms of reduction in payments and/or benefits will occur in the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by following order: (1) the amount first, reduction of the Excise Taxcash payments, in reverse order of scheduled payment date (or if necessary, to zero), (2) then, reduction of non-cash and non-equity benefits provided to the estimated income taxes payable by the Employee Executive, on the difference between the Uncapped Payments and the Capped Amounta pro rata basis (or if necessary, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, to zero) and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) then, cancellation of the Code (acceleration of vesting of equity award compensation in the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment reverse order of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right date of additional payment from any grant of the Related Parties as reimbursement for such taxesExecutive’s equity awards.

Code Section 280G. (i) Notwithstanding anything in this Agreement any provision of the Plan to the contrary, if any payments or benefits the Executive would receive from the Company under this Agreement or otherwise in the event that any severance and other benefits provided to or for the benefit connection with a change in ownership (as defined under Section 280G(b)(2) of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties Code) (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control ArrangementsTotal Payments”) (a) constitute “parachute payments” within the meaning of Section 280G(b)(2) 280G of the Code Code, and (such severance and other benefits being referred to herein as the “Change of Control Payments”b) that but for this Section 20(c), would be subject to the excise tax imposed by Section 4999 of the Code Code, then such Executive will be entitled to receive either (i) the full amount of the Total Payments or (ii) a portion of the Total Payments having a value equal to $1 less than three (3) times such individual’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of (i) and (ii), after taking into account applicable federal, state, and local income taxes and the excise tax referred imposed by Section 4999 of the Code, results in the receipt by such employee on an after-tax basis, of the greatest portion of the Total Payments. Any determination required under this Section 20(c) shall be made in writing by the Company’s independent certified public accountants appointed prior to any change in this Agreement ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel selected by such accountants (the “Excise TaxAccountants”), whose determination shall be conclusive and binding for all purposes upon the applicable Executive. For purposes of making the calculations required by this Section 20(c), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. If there is a reduction pursuant to this Section 20(c) of the Total Payments to be delivered to the applicable Executive, the payment reduction contemplated by the preceding sentence shall be implemented by determining the “Parachute Payment Ratio” (as defined below) for each “parachute payment” and then (i) if reducing the shareholder approval exemption set forth “parachute payments” in Section 280G(b)(5) is availableorder beginning with the “parachute payment” with the highest Parachute Payment Ratio. For “parachute payments” with the same Parachute Payment Ratio, then such “parachute payments” shall be reduced based on the Employer time of payment of such “parachute payments,” with amounts having later payment dates being reduced first. For “parachute payments” with the same Parachute Payment Ratio and the Employee same time of payment, such “parachute payments” shall take all steps necessarybe reduced on a pro rata basis (but not below zero) prior to reducing “parachute payments” with a lower Parachute Payment Ratio. For purposes hereof, including, without limitation, waiver the term “Parachute Payment Ratio” shall mean a fraction the numerator of rights by which is the Employee, to seek shareholder approval value of the applicable “parachute payment” for such Change purposes of Control Payments in accordance with Section 280G(b)(5) 280G of the Code and the regulations promulgated thereunder; or (ii) if denominator of which is the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the actual present value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxespayment.

Code Section 280G. (i) Notwithstanding anything to the contrary in this Agreement to the contraryAgreement, in the event it shall be determined that any severance and other benefits provided payment or distribution made, or benefit provided, by the Companies to or for the benefit of the Employee Executive under Article II or his legal representatives and dependents Article III (whether paid or payable or distributed or distributable or provided pursuant to this Agreement and the terms hereof or otherwise) or under any other agreement, benefit, plan, plan or policy of the Related Parties Companies (including but not limited to the Bonus Plan, the LTIP and the OTIP) (this Agreement and such other agreements, benefits, plans, plans and policies collectively being referred to herein as the “Change of in Control Arrangements”) would constitute a “parachute paymentspayment” within the meaning of as defined in Section 280G(b)(2) 280G of the Internal Revenue Code of 1986, as amended (“Code Section 280G”) (such severance and payments, distributions or other benefits being referred to herein as the “Change of Control Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee Companies shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee Executive with a computation of (Ai) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangementsmade, without the imposition of the Excise Tax excise tax imposed by Code Section 4999, under the Change in Control Arrangements (said maximum amount being referred to as the “Capped AmountAmounts”); (Bii) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of in Control Arrangements (all said payments, distributions and benefits being referred to herein as the “Uncapped Payments”); (Ciii) the dollar amount of Excise Tax excise tax (if any) which the Employee Executive would become obligated to pay pursuant to Code Section 4999 of the Code as a result of receipt of the Uncapped PaymentsPayments (the “Excise Tax Amount”); and (Div) the net value of the Uncapped Payments after reduction by (1A) the amount of the Excise TaxTax Amount, (2B) the estimated income taxes payable by the Employee Executive on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee Executive is paying the highest marginal tax rate for state, local and federal income taxes, ; and (3C) the estimated hospital insurance taxes payable by the Employee Executive on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Code Section 3101(b) of the Code 3101 (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes.

Code Section 280G. (i) Notwithstanding anything to the contrary in this Agreement to the contraryAgreement, in the event it shall be determined that any severance and other benefits provided payment or distribution made, or benefit or entitlements provided, by the Company or any entity effecting a Change in Control to or for the benefit of the Employee Executive under Article II or his legal representatives and dependents Article III or otherwise (whether paid or payable or distributed or distributable or provided pursuant to this Agreement and the terms hereof or otherwise) or under any other agreement, benefit, plan, plan or policy of the Related Parties Company or any entity effecting a Change in Control (including but not limited to any bonus plan in effect from time to time) (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of in Control Arrangements”) would constitute a “parachute paymentspayment” within the meaning of as defined in Code Section 280G(b)(2) of the Code 280G (such severance and payments, distributions, or other benefits being referred to herein as the “Change of Control Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee Company shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee Executive with a computation of (Ai) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangementsmade, without the imposition of the Excise Tax excise tax imposed by Code Section 4999, under the Change in Control Arrangements (said maximum amount being referred to as the “Capped AmountAmounts”); (Bii) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of in Control Arrangements (all said payments, distributions and benefits being referred to herein as the “Uncapped Payments”); (Ciii) the dollar amount of Excise Tax excise tax (if any) which the Employee Executive would become obligated to pay pursuant to Code Section 4999 of the Code as a result of receipt of the Uncapped PaymentsPayments (the “Excise Tax Amount”); and (Div) the net value of the Uncapped Payments after reduction by (1a) the amount of the Excise Tax, Tax Amount; (2b) the estimated income taxes payable by the Employee Executive on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee Executive is paying the highest marginal tax rate for state, local and federal income taxes, ; and (3c) the estimated hospital insurance taxes payable by the Employee Executive on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Code Section 3101(b) of the Code 3101 (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes.

Code Section 280G. (i) Notwithstanding anything in this Agreement any provision of the Plan to the contrary, if any payments or benefits the Executive would receive from the Company under this Agreement or otherwise in the event that any severance and other benefits provided to or for the benefit connection with a change in ownership (as defined under Section 280G(b)(2) of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties Code) (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control ArrangementsTotal Payments”) (a) constitute “parachute payments” within the meaning of Section 280G(b)(2) 280G of the Code Code, and (such severance and other benefits being referred to herein as the “Change of Control Payments”b) that but for this Section 20(c), would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”)Code, then such Executive will be entitled to receive either (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) full amount of the Code and the regulations promulgated thereunder; Total Payments or (ii) if a portion of the shareholder approval exemption set forth Total Payments having a value equal to $1 less than three (3) times such individual’s “base amount” (as such term is defined in Section 280G(b)(5280G(b)(3)(A) is not availableof the Code), then the Employer will provide the Employee with a computation whichever of (Ai) and (ii), after taking into account applicable federal, state, and local income taxes and the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to excise tax imposed by Section 4999 of the Code as a result of Code, results in the receipt by such employee on an after-tax basis, of the Uncapped Payments; and (D) the net value greatest portion of the Uncapped Payments after reduction Total Payments. Any determination required under this Section 20(c) shall be made in writing by the Company’s independent certified public accountants appointed prior to any change in ownership (1as defined under Section 280G(b)(2) the amount of the Excise TaxCode) or tax counsel selected by such accountants (the “Accountants”), (2whose determination shall be conclusive and binding for all purposes upon the applicable Executive. For purposes of making the calculations required by this Section 20(c), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. If there is a reduction pursuant to this Section 20(c) of the estimated income taxes payable Total Payments to be delivered to the applicable Executive, the payment reduction contemplated by the Employee on preceding sentence shall be implemented by determining the difference between “Parachute Payment Ratio” (as defined below) for each “parachute payment” and then reducing the Uncapped Payments and “parachute payments” in order beginning with the Capped Amount, assuming that the Employee is paying “parachute payment” with the highest marginal tax rate for stateParachute Payment Ratio. For “parachute payments” with the same Parachute Payment Ratio, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount such “parachute payments” shall be reduced based on the hospital insurance tax rate under Section 3101(b) time of payment of such “parachute payments,” with amounts having later payment dates being reduced first. For “parachute payments” with the Code (same Parachute Payment Ratio and the same time of payment, such “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee parachute payments” shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes.reduced on a pro rata basis (but not below zero) prior to

Code Section 280G. (i) Notwithstanding anything in this Agreement If any payment or benefit received or to be received by the contrary, in the event that any severance and other benefits provided to or for the benefit of the Employee or his legal representatives and dependents Executive pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties otherwise (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control ArrangementsPayments”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G(b)(2) 280G of the Code Code, and (such severance and other benefits being referred to herein as the “Change of Control Payments”ii) that would but for this subsection (f), be subject to the excise tax imposed by Section 4999 of the Code (such Code, any successor provisions, or any comparable federal, state, local or foreign excise tax referred to in this Agreement as (the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee such Payments shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of be either (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made provided in full pursuant to the terms of the Change this Agreement or any other applicable plan or agreement, or (B) provided as to such lesser extent which would result in no portion of Control Arrangements (all said payments, distributions and benefits such Payments being referred subject to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) whichever of the estimated income taxes payable by foregoing amounts, taking into account the Employee on the difference between the Uncapped Payments and the Capped Amountapplicable federal, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxesforeign income, employment and other taxes and the Excise Tax, results in the receipt by the Executive, on an after-tax basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. If a reduction is required pursuant to this subsection (f), the reduction shall be made as follows: (x) if none of the parachute payments constitute non-qualified deferred compensation (within the meaning of Section 409A of the Code), then the reduction shall occur in the manner the Executive elects in writing, and (3y) if any parachute payments constitute non-qualified deferred compensation or if the estimated hospital insurance taxes payable Executive fails to elect an order, then the parachute payments to be reduced will be determined by the Employee on Accounting Firm (defined below) in a manner which has the difference between least economic cost to the Uncapped Payments and Executive and, to the Capped Amount based on extent the hospital insurance tax rate economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to the Executive, until the reduction is achieved. Any determination required under Section 3101(bthis subsection (f) of shall be made by an independent accounting firm designated by the Code Company (the “Net Uncapped AmountAccounting Firm”), whose determination shall be conclusive and binding upon the Executive and the Company for all purposes. If For purposes of making the Capped Amount is greater than the Net Uncapped Amountcalculations required under this subsection (f), the Employee Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that the Accounting Firm shall be entitled to receive or commence to receive assume that the Change of Control Payments equal Executive pays all taxes at the highest marginal rate. The Company and the Executive shall furnish to the Capped Amount; or if Accounting Firm such information and documents as the Net Uncapped Amount is greater than Accounting Firm may reasonably request in order to make a determination under this subsection (f). The Company will bear all costs that the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, Accounting Firm may reasonably incur in connection with no right of additional payment from any of the Related Parties as reimbursement for such taxescalculations contemplated by this subsection (f).

Code Section 280G. (i) Notwithstanding anything in If the aggregate of all amounts and benefits due to Executive under this Agreement to the contraryor any other plan, in the event that any severance and other benefits provided to program, agreement or for the benefit arrangement of the Employee Company or his legal representatives any of its affiliates, which, if received by Executive in full, would constitute “parachute payments,” as such term is defined in and dependents pursuant to this Agreement and any other agreementunder Code Section 280G (collectively, benefit, plan, or policy of the Related Parties (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control ArrangementsBenefits”) constitute “parachute payments” within the meaning of Section 280G(b)(2) of the Code (such severance ), reduced by all Federal, state and other benefits being referred to herein as the “Change of Control Payments”) that would be subject to local taxes applicable thereto, including the excise tax imposed by pursuant to Code Section 4999 4999, is less than the amount Executive would receive, after all such applicable taxes, if Executive received aggregate Change of the Control Benefits equal to an amount which is $1.00 less than three (3) times Executive’s “base amount,” as defined in and determined under Code (such excise tax referred to in this Agreement as the “Excise Tax”)Section 280G, then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of Benefits shall be reduced or eliminated to the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments extent necessary so that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of Benefits received by Executive will not constitute parachute payments. If a reduction in the Change of Control Arrangements (all said paymentsBenefits is necessary, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction extent permitted by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxesapplicable law, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) not a violation of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped AmountSections 280G, the Employee 409A or 4999, Executive shall be entitled to receive or commence to receive elect the order in which Change of Control Payments equal Benefits will be reduced. If Executive electing the order in which such benefits will be reduced would result in violation of Code Section 409A or loss of the benefit of reduction under Code Sections 280G or 4999, payments shall be reduced in the following order (i) severance payment based on multiple of Annual Base Salary and/or Annual Bonus; (ii) other cash payments; (iii) any Pro Rata Annual Bonus or Pro-Rata LTIP paid as severance; (iv) acceleration of vesting of stock options with an exercise price that exceeds the then fair market value of stock subject to the Capped Amountoption, provided such options are not permitted to be valued under Treasury Regulations Section 1.280G-1 Q/A – 24(c); (v) any equity awards accelerated or if otherwise valued at full value, provided such equity awards are not permitted to be valued under Treasury Regulations Section 1.280G-1 Q/A – 24(c); (vi) acceleration of vesting of stock options with an exercise price that exceeds the Net Uncapped Amount is greater than then fair market value of stock subject to the Capped Amountoption, the Employee provided such options are permitted to be valued under Treasury Regulations Section 1.280G-1 Q/A – 24(c); (vii) acceleration of vesting of all other stock options and equity awards; and (viii) within any category, reductions shall be entitled to receive or commence to receive from the Change of Control Payments equal last due payment to the Uncapped Paymentsfirst. If the Employee receives the Uncapped Payments, then the Employee The determinations with respect to this Section 5(h) shall be solely responsible for made by an independent auditor (the payment “Auditor”) compensated by the Company. The Auditor shall be the Company’s regular independent auditor, unless Executive objects to the use of that firm, in which event the Excise Tax due from Auditor shall be a nationally-recognized United States public accounting firm chosen by the Employee Company and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such approved by Executive (which approval shall not be unreasonably withheld or delayed). The Auditor shall prepare a report setting forth its findings in a form on which Executive can rely when filing her taxes.

Code Section 280G. (i) Notwithstanding anything in If any payments or benefits the Executive would receive from the Company under this Agreement to the contrary, or otherwise in the event that any severance and other benefits provided to or for the benefit connection with a change in ownership (as defined under Section 280G(b)(2) of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties Code) (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control ArrangementsTotal Payments”) (a) constitute “parachute payments” within the meaning of Section 280G(b)(2) 280G of the Code Code, and (such severance and other benefits being referred to herein as the “Change of Control Payments”b) that but for this Section 7 would be subject to the excise tax imposed by Section 4999 of the Code Code, then the Executive shall be entitled to receive either (i) the full amount of the Total Payments or (ii) a portion of the Total Payments having a value equal to $1 less than three (3) times the Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of (i) and (ii), after taking into account applicable federal, state, and local income taxes and the excise tax referred imposed by Section 4999 of the Code, results in the receipt by such employee on an after tax basis, of the greatest portion of the Total Payments. Any determination required under this Section 7 shall be made in writing by the Company’s independent certified public accountants appointed prior to any change in this Agreement ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel selected by such accountants (the “Excise TaxAccountants”), whose determination shall be final, conclusive and binding for all purposes upon the Executive. For purposes of making the calculations required by this Section 7, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. If there is a reduction pursuant to this Section 7 of the Total Payments to be delivered to the applicable Executive the payment reduction contemplated by the first sentence of this Section 7 shall be implemented by determining the “Parachute Payment Ratio” (as defined below) for each “parachute payment” and then (i) if reducing the shareholder approval exemption set forth “parachute payments” in Section 280G(b)(5) is availableorder beginning with the “parachute payment” with the highest Parachute Payment Ratio. For “parachute payments” with the same Parachute Payment Ratio, then such “parachute payments” shall be reduced based on the Employer time of payment of such “parachute payments,” with amounts having later payment dates being reduced first. For “parachute payments” with the same Parachute Payment Ratio and the Employee same time of payment, such “parachute payments” shall take all steps necessarybe reduced on a pro rata basis (but not below zero) prior to reducing “parachute payments” with a lower Parachute Payment Ratio. For purposes hereof, including, without limitation, waiver the term “Parachute Payment Ratio” shall mean a fraction the numerator of rights by which is the Employee, to seek shareholder approval value of the applicable “parachute payment” for such Change purposes of Control Payments in accordance with Section 280G(b)(5) 280G of the Code and the regulations promulgated thereunder; or (ii) if denominator of which is the shareholder approval exemption set forth in actual present value of such payment. The determination by the Accountants under this Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could 7 shall be made under as soon as practicable but no later than six (6) days following the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxesEffective Time.

Code Section 280G. (i) Notwithstanding anything in this Agreement to the contrary, in the event that any severance and other benefits provided to or for the benefit of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control Arrangements”) constitute “parachute payments” within the meaning of Section 280G(b)(2) of the Code (such severance and other benefits being referred to herein as the “Change of Control Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes.and

Code Section 280G. (i) Notwithstanding anything in If any payments or benefits the Executive would receive from the Company under this Agreement to the contrary, or otherwise in the event that any severance and other benefits provided to or for the benefit connection with a change in ownership (as defined under Section 280G(b)(2) of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties Code) (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control ArrangementsTotal Payments”) (a) constitute “parachute payments” within the meaning of Section 280G(b)(2) 280G of the Code Code, and (such severance and other benefits being referred to herein as the “Change of Control Payments”b) that but for this Section 7 would be subject to the excise tax imposed by Section 4999 of the Code Code, then the Executive shall be entitled to receive either (i) the full amount of the Total Payments or (ii) a portion of the Total Payments having a value equal to $1 less than three (3) times the Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of (i) and (ii), after taking into account applicable federal, state, and local income taxes and the excise tax referred imposed by Section 4999 of the Code, results in the receipt by such employee on an after tax basis, of the greatest portion of the Total Payments. Any determination required under this Section 7 shall be made in writing by the Company’s independent certified public accountants appointed prior to any change in this Agreement ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel selected by such accountants (the “Excise TaxAccountants”), whose determination shall be final, conclusive and binding for all purposes upon the Executive. For purposes of making the calculations required by this Section 7, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. If there is a reduction pursuant to this Section 7 of the Total Payments to be delivered to the applicable Executive the payment reduction contemplated by the first sentence of this Section 7 shall be implemented by determining the “Parachute Payment Ratio” (as defined below) for each “parachute payment” and then (i) if reducing the shareholder approval exemption set forth “parachute payments” in Section 280G(b)(5) is availableorder beginning with the “parachute payment” with the highest Parachute Payment Ratio. For “parachute payments” with the same Parachute Payment Ratio, then such “parachute payments” shall be reduced based on the Employer time of payment of such “parachute payments,” with amounts having later payment dates being reduced first. For “parachute payments” with the same Parachute Payment Ratio and the Employee same time of payment, such “parachute payments” shall take all steps necessarybe reduced on a pro rata basis (but not below zero) prior to reducing “parachute payments” with a lower Parachute Payment Ratio. For purposes hereof, including, without limitation, waiver the term “Parachute Payment Ratio” shall mean a fraction the numerator of rights by which is the Employee, to seek shareholder approval value of the applicable “parachute payment” for such Change purposes of Control Payments in accordance with Section 280G(b)(5) 280G of the Code and the regulations promulgated thereunder; or (ii) if denominator of which is the shareholder approval exemption set forth in actual present value of such payment. The determination by the Accountants under this Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could 6 shall be made under as soon as practicable but no later than six (6) days following the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxesEffective Time.

Code Section 280G. (i) Notwithstanding anything in this Agreement to the contrary, in the event that any severance and other benefits provided to or for the benefit of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control Arrangements”) constitute “parachute payments” within the meaning of Section 280G(b)(2) of the Code (such severance and other benefits being referred to herein as the “Change of Control Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer Company and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer Company will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes.

Code Section 280G. (i) Notwithstanding anything to the contrary in this Agreement to the contraryAgreement, in the event it shall be determined that any severance and other benefits provided payment or distribution made, or benefit provided, by the Company to or for the benefit of the Employee Executive under Article II or his legal representatives and dependents Article III (whether paid or payable or distributed or distributable or provided pursuant to this Agreement and the terms hereof or otherwise) or under any other agreement, benefit, plan, plan or policy of the Related Parties Company (including but not limited to any bonus plan in effect from time to time) (this Agreement and such other agreements, benefits, plans, plans and policies collectively being referred to herein as the “Change of in Control Arrangements”) would constitute a “parachute paymentspayment” within the meaning of as defined in Section 280G(b)(2) 280G of the Internal Revenue Code of 1986, as amended (“Code Section 280G”) (such severance and payments, distributions or other benefits being referred to herein as the “Change of Control Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee Company shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee Executive with a computation of (Ai) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangementsmade, without the imposition of the Excise Tax excise tax imposed by Code Section 4999, under the Change in Control Arrangements (said maximum amount being referred to as the “Capped AmountAmounts”); (Bii) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of in Control Arrangements (all said payments, distributions and benefits being referred to herein as the “Uncapped Payments”); (Ciii) the dollar amount of Excise Tax excise tax (if any) which the Employee Executive would become obligated to pay pursuant to Code Section 4999 of the Code as a result of receipt of the Uncapped PaymentsPayments (the “Excise Tax Amount”); and (Div) the net value of the Uncapped Payments after reduction by (1A) the amount of the Excise TaxTax Amount, (2B) the estimated income taxes payable by the Employee Executive on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee Executive is paying the highest marginal tax rate for state, local and federal income taxes, ; and (3C) the estimated hospital insurance taxes payable by the Employee Executive on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Code Section 3101(b) of the Code 3101 (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes.

Code Section 280G. (i) Notwithstanding anything in If any payments or benefits the Executive would receive from the Company under this Agreement to the contrary, or otherwise in the event that any severance and other benefits provided to or for the benefit connection with a change in ownership (as defined under Section 280G(b)(2) of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties Code) (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control ArrangementsTotal Payments”) (a) constitute “parachute payments” within the meaning of Section 280G(b)(2) 280G of the Code Code, and (such severance and other benefits being referred to herein as the “Change of Control Payments”b) that but for this Section 6 would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is availableCode, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee Executive shall be entitled to receive either (i) the full amount of the Total Payments or commence to receive (ii) a portion of the Change of Control Total Payments having a value equal to $1 less than three (3) times the Capped Amount; Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of (i) and (ii), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by such employee on an after tax basis, of the greatest portion of the Total Payments. Any determination required under this Section 6 shall be made in writing by the Company’s independent certified public accountants appointed prior to any change in ownership (as defined under Section 280G(b)(2) of the Code) or if tax counsel selected by such accountants (the Net Uncapped Amount is greater than “Accountants”), whose determination shall be final, conclusive and binding for all purposes upon the Capped AmountExecutive. For purposes of making the calculations required by this Section 6, the Employee Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. If there is a reduction pursuant to this Section 6 of the Total Payments to be delivered to the applicable Executive the payment reduction contemplated by the first sentence of this Section 6 shall be entitled to receive or commence to receive implemented by determining the Change of Control Payments equal to “Parachute Payment Ratio” (as defined below) for each “parachute payment” and then reducing the Uncapped Payments“parachute payments” in order beginning with the “parachute payment” with the highest Parachute Payment Ratio. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes.For “parachute payments” with

Code Section 280G. Between the date hereof and the Closing Date, the Company will (ior will cause its applicable Subsidiaries to) Notwithstanding anything use commercially reasonable efforts to (a) seek waivers, from individuals who would reasonably be expected to be considered “disqualified individuals” (within the meaning of Section 280G(c) of the Code and the regulations thereunder) with respect to the relevant Group Companies, of that portion of their payments and/or benefits payable in connection with this Agreement to that would trigger the contraryreceipt of “excess parachute payments” (within the meaning of Section 280G of the Code and the regulations thereunder) by such individual and (b) solicit shareholder approval of any such waived payments and/or benefits, in the event such that any severance and other no payments and/or benefits provided to or for the benefit of the Employee or his legal representatives and dependents pursuant such individual would be deemed to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control Arrangements”) constitute “parachute payments” within pursuant to Section 280G of the meaning Code. At least ten (10) Business Days prior to the Closing Date, the Company shall provide Parent with written calculations regarding the potential application of Section 280G(b)(2) 280G of the Code (such severance and other benefits being referred to herein as the “Change of Control Payments”) that would be subject each potential disqualified individual. Prior to the excise tax imposed by Section 4999 of Closing Date, the Code (such excise tax referred Company shall deliver to in this Agreement as the “Excise Tax”), then Parent notification that (i) if the shareholder approval exemption set forth a stockholder vote was solicited in Section 280G(b)(5) is available, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver of rights by the Employee, manner entitled to seek shareholder approval for such Change of Control Payments in accordance comply with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; thereunder and the requisite stockholder approval was obtained with respect to any waived payments and/or benefits that were subject to the stockholder vote or (ii) if the shareholder such stockholder approval exemption set forth in Section 280G(b)(5) is was not availableobtained and, then the Employer will provide the Employee with as a computation of (A) the maximum amount of Change of Control Payments that could consequence, any waived payments and/or benefits shall not be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant or provided to the terms of the Change of Control Arrangements (all said extent they would cause any amounts to constitute “excess parachute payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay ” pursuant to Section 4999 280G of the Code Code. The form of the waiver, the disclosure statement, and any other materials to be submitted to such Shareholders in connection with this Section 5.11 shall be subject to advance timely review and reasonable comment by Xxxxxx. Notwithstanding the foregoing, with respect to any Parent Arrangement, Parent shall provide a copy thereof to the Company and Seller Representative at least seven (7) Business Days before the Closing Date and shall cooperate with the Company in good faith in order to calculate or determine the value (for purposes of Section 280G of the Code) of any payments or benefits granted or contemplated therein, which may be paid or granted in connection with the transactions contemplated by this Agreement and that could constitute a “parachute payment” under Section 280G of the Code; provided, that, in any event, the Company’s failure to include the Parent Arrangements in the stockholder voting materials described herein, as a result of receipt Parent’s failure to comply with the timing and other requirements set forth above, will not result in a breach of the Uncapped Payments; and (D) covenants set forth in this Section 5.11. In no event shall the net value Company be deemed in breach of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes.this

Code Section 280G. (i) Notwithstanding anything to the contrary in this Agreement to the contraryAgreement, in the event it shall be determined that any severance and other benefits provided payment or distribution made, or benefit or entitlements provided, by the Company or any entity effecting a change in control to or for the benefit of the Employee Executive under Article II or his legal representatives and dependents Article III or otherwise (whether paid or payable or distributed or distributable or provided pursuant to this Agreement and the terms hereof or otherwise) or under any other agreement, benefit, plan, plan or policy of the Related Parties Company or any entity effecting a change in control (including but not limited to any bonus plan in effect from time to time) (this Agreement and such other agreements, benefits, plans, plans and policies collectively being referred to herein as the “Change of in Control Arrangements”) would constitute a “parachute paymentspayment” within the meaning of as defined in Code Section 280G(b)(2) of the Code 280G (such severance and payments, distributions or other benefits being referred to herein as the “Change of Control Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”), then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee Company shall take all steps necessary, including, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee Executive with a computation of (Ai) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangementsmade, without the imposition of the Excise Tax excise tax imposed by Code Section 4999, under the Change in Control Arrangements (said maximum amount being referred to as the “Capped AmountAmounts”); (Bii) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of in Control Arrangements (all said payments, distributions and benefits being referred to herein as the “Uncapped Payments”); (Ciii) the dollar amount of Excise Tax excise tax (if any) which the Employee Executive would become obligated to pay pursuant to Code Section 4999 of the Code as a result of receipt of the Uncapped PaymentsPayments (the “Excise Tax Amount”); and (Div) the net value of the Uncapped Payments after reduction by (1a) the amount of the Excise Tax, Tax Amount; (2b) the estimated income taxes payable by the Employee Executive on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee Executive is paying the highest marginal tax rate for state, local and federal income taxes, ; and (3c) the estimated hospital insurance taxes payable by the Employee Executive on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Code Section 3101(b) of the Code 3101 (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxes.

Code Section 280G. If any Person who is a “disqualified individual” (i) Notwithstanding anything in this Agreement to the contrary, in the event that any severance and other benefits provided to or for the benefit of the Employee or his legal representatives and dependents pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties (this Agreement and such other agreements, benefits, plans, and policies collectively being referred to herein as the “Change of Control Arrangements”) constitute “parachute payments” within the meaning of Section 280G(b)(2) 280G of the Code (such severance and other benefits being referred the Department of Treasury regulations promulgated thereunder) with respect to herein as the “Change of Control Payments”Company may receive any payment(s) or benefit(s) that would be subject to the excise tax imposed by could constitute parachute payments under Section 4999 280G of the Code in connection with the transactions contemplated by this Agreement, then: (a) Seller shall use commercially reasonable efforts to obtain a Parachute Payment Waiver from each such excise tax referred “disqualified individual” and shall deliver such Parachute Payment Waiver to in this Agreement Buyer; and (b) as soon as practicable following the “Excise Tax”)delivery of the Parachute Payment Waivers (if any) to Buyer, then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer Seller and the Employee Company shall take prepare and distribute to shareholders a disclosure statement describing all steps necessarypotential parachute payments and benefits that may be received by such disqualified individual(s) and shall submit such payments to its shareholders for approval, includingin each case, without limitation, waiver of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with the requirements of Section 280G(b)(5280G(b)(5)(B) of the Code and the Department of Treasury regulations promulgated thereunder; or (ii) , such that, if approved by the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition requisite majority of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); (B) the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said paymentsshareholders, distributions such payments and benefits being referred shall not be deemed to as the be “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to Section 4999 of the Code as a result of receipt of the Uncapped Payments; and (D) the net value of the Uncapped Payments after reduction by (1) the amount of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxes, and (3) the estimated hospital insurance taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate parachute payments” under Section 3101(b) 280G of the Code (the foregoing actions, a “Net Uncapped Amount280G Vote”). If Prior to the Capped Amount Closing, if a 280G Vote is greater than undertaken, Seller shall deliver to Buyer evidence reasonably satisfactory to Buyer, (i) that a 280G Vote was solicited in conformance with Section 280G of the Net Uncapped AmountCode, and the requisite shareholder approval was obtained with respect to any payments and/or benefits that were subject to the Company shareholder vote (the “Section 280G Approval”) or (ii) that the Section 280G Approval was not obtained and as a consequence, pursuant to the Parachute Payment Waiver, such “parachute payments” shall not be made or provided. The form of the Parachute Payment Waiver, the Employee disclosure statement, any other materials to be submitted to shareholders in connection with the 280G Vote and the calculations related to the foregoing shall be entitled subject to receive or commence to receive the Change of Control Payments equal advance review and approval by Buyer, which approval shall not be unreasonably withheld. Prior to the Capped Amount; solicitation of Parachute Payment Waivers, Buyer shall provide Seller and the Company with any compensatory arrangement that it or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive its Affiliates entered into or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, agreed with no right of additional payment from any of the Related Parties as reimbursement for such taxesdisqualified individual.

Code Section 280G. If, after the Effective Time, Sovereign or the Company is not an entity whose stock is readily tradable on an established securities market (ior otherwise) Notwithstanding anything and a “change of control” under Treasury Regulation 1.280G occurs, the Company and Sovereign shall use commercially reasonable best efforts to take such actions as may be necessary to avoid the imposition of the excise tax imposed by Section 4999 of the Code or a loss of deductibility under Section 280G of the Code, including seeking to obtain stockholder approval in this Agreement accordance with the terms of Section 280G(b)(5)(ii). If on the date that a “change of control” under Treasury Regulation 1.280G occurs, either Section 280G(b)(5)(ii)(II) is not applicable or after using commercially reasonable best efforts, the Company is unable to avoid the contrary, in imposition of the event that excise tax imposed by Section 4999 of the Code as to any severance and other payment or benefits provided to you whether made or for the benefit of the Employee or his legal representatives and dependents provided pursuant to this Agreement and any other agreement, benefit, plan, or policy of the Related Parties otherwise (this Agreement and such other agreements, benefits, plans, and policies collectively payments or benefits which are subject to such excise tax being referred to herein as the “Change of Control ArrangementsParachute Payments”), then, except to the extent you have previously waived your rights with respect to such Parachute Payments, you will be entitled to receive either (A) constitute “parachute payments” within the meaning of Section 280G(b)(2) full amount of the Code Parachute Payments, or (B) the maximum amount that may be provided to you without resulting in any portion of such severance and other benefits Parachute Payments being referred to herein as the “Change of Control Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax referred to in this Agreement as the “Excise Tax”)Code, then (i) if the shareholder approval exemption set forth in Section 280G(b)(5) is available, then the Employer and the Employee shall take all steps necessary, including, without limitation, waiver whichever of rights by the Employee, to seek shareholder approval for such Change of Control Payments in accordance with Section 280G(b)(5) of the Code and the regulations promulgated thereunder; or (ii) if the shareholder approval exemption set forth in Section 280G(b)(5) is not available, then the Employer will provide the Employee with a computation of clauses (A) the maximum amount of Change of Control Payments that could be made under the Change of Control Arrangements, without the imposition of the Excise Tax (said maximum amount being referred to as the “Capped Amount”); and (B) ), after taking into account applicable federal, state, and local taxes and the value of all Change of Control Payments that could be made pursuant to the terms of the Change of Control Arrangements (all said payments, distributions and benefits being referred to as the “Uncapped Payments”); (C) the dollar amount of Excise Tax which the Employee would become obligated to pay pursuant to excise tax under Section 4999 of the Code as a result of Code, results in the receipt by you, on an after-tax basis, of the Uncapped Payments; and (D) the net value greatest portion of the Uncapped Parachute Payments. The Parachute Payments after shall be reduced in a manner that maximizes the Executive’s economic position. Any reduction by (1) of Parachute Payments pursuant to the amount preceding sentence shall be made in a manner consistent with the requirements of Section 409A of the Excise Tax, (2) the estimated income taxes payable by the Employee on the difference between the Uncapped Payments and the Capped Amount, assuming that the Employee is paying the highest marginal tax rate for state, local and federal income taxesCode, and (3) the estimated hospital insurance taxes where two economically equivalent amounts are subject to reduction but payable by the Employee on the difference between the Uncapped Payments and the Capped Amount based on the hospital insurance tax rate under Section 3101(b) of the Code (the “Net Uncapped Amount”). If the Capped Amount is greater than the Net Uncapped Amountat different times, the Employee such amounts shall be entitled to receive or commence to receive the Change of Control Payments equal to the Capped Amount; or if the Net Uncapped Amount is greater than the Capped Amount, the Employee shall be entitled to receive or commence to receive the Change of Control Payments equal to the Uncapped Payments. If the Employee receives the Uncapped Payments, then the Employee shall be solely responsible for the payment of the Excise Tax due from the Employee and attributable to such Uncapped Payments, with no right of additional payment from any of the Related Parties as reimbursement for such taxesreduced on a pro rata basis but not below zero.