**Exhibit 10.1**
**CHANGE IN CONTROL AGREEMENT**
     THIS CHANGE IN CONTROL AGREEMENT (this “Agreement”) is by and between CTI Molecular Imaging,Inc., a Delaware corporation (the “Company”), and MARK S. ANDREACO (“Executive”), dated as of the12th day of October, 2004.
     The Board of Directors of the Company (the “Board”), has determined that it is in the bestinterests of the Company and its stockholders to assure that the Company will have the continueddedication of Executive, notwithstanding the possibility, threat or occurrence of a Change ofControl (as defined below) of the Company. The Board believes it is imperative to diminish theinevitable distraction of Executive by virtue of the personal uncertainties and risks created by apending or threatened Change of Control and to encourage Executive’s full attention and dedicationto the Company currently and in the event of any threatened or pending Change of Control, and toprovide Executive with compensation and benefits arrangements upon a Change of Control which ensurethat the compensation and benefits expectations of Executive will be satisfied and which arecompetitive with those of other corporations. Therefore, in order to accomplish these objectives,the Board has caused the Company to enter into this Agreement.
     NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
     1. Certain Definitions.
          (a) The “Effective Date” shall mean the first date during the Change of Control Period (asdefined in Section l(b)) on which a Change of Control (as defined in Section 2) occurs. Anythingin this Agreement to the contrary notwithstanding, if a Change of Control occurs and if Executive’semployment with the Company is terminated prior to the date on which the Change of Control occurs,and if it is reasonably demonstrated by Executive that such termination of employment (i) was atthe request of a third party who has taken steps reasonably calculated to effect a Change ofControl or (ii) otherwise arose in connection with or anticipation of a Change of Control, then forall purposes of this Agreement the “Effective Date” shall mean the date immediately prior to thedate of such termination of employment.
          (b) The “Change of Control Period” shall mean the period commencing on the date hereof andending on the third anniversary of the date hereof; provided, however, that commencing on the dateone year after the date hereof, and on each annual anniversary of such date (such date and eachannual anniversary thereof shall be hereinafter referred to as the “Renewal Date”), unlesspreviously terminated, the Change of Control Period shall be automatically extended so as toterminate three years from such Renewal Date, unless at least 60 days prior to the Renewal Date theCompany shall give notice to Executive that the Change of Control Period shall not be so extended.
 

 

     2. Change of Control. For the purposes of this Agreement, a “Change of Control” shallmean the occurrence of any of the following events but shall specifically exclude a public offeringof the Company’s common stock:
          (a) individuals who, as of the date of this Agreement, constitute the Board of Directors ofthe Company (the “Incumbent Directors”) cease for any reason to constitute at least a majority ofsuch Board, provided that any person becoming a director after the date of this Agreement and whoseelection or nomination for election was approved by a vote of at least a majority of the IncumbentDirectors then on the Board shall be an Incumbent Director; provided, however, thatno individual initially elected or nominated as a director of the Company as a result of an actualor threatened election contest with respect to the election or removal of directors (“ElectionContest”) or other actual or threatened solicitation of proxies or consents by or on behalf of any“person” (such term for purposes of this definition being as defined in Section 3(a)(9) of theExchange Act and as used in Section 13(d)(3) and 14(d)(2) of the Exchange Act) other than the Board(“Proxy Contest”), including by reason of any agreement intended to avoid or settle any ElectionContest or Proxy Contest, shall be deemed an Incumbent Director; or
          (b) any person is or becomes a “beneficial owner” (as defined in Rule 13d-3 under the ExchangeAct), directly or indirectly, of either (A) 35% or more of the then-outstanding shares of commonstock of the Company (“Company Common Stock”) or (B) securities of the Company representing 35% ormore of the combined voting power of the Company’s then outstanding securities eligible to vote forthe election of directors (the “Company Voting Securities”); provided, however,that for purposes of this subsection (b), the following acquisitions shall not constitute a Changeof Control: (i) an acquisition directly from the Company, (ii) an acquisition by the Company or aSubsidiary of the Company, (iii) an acquisition by any employee benefit plan (or related trust)sponsored or maintained by the Company or any Subsidiary of the Company, or (iv) an acquisitionpursuant to a Non-Qualifying Transaction (as defined in subsection (c) below); or
          (c) the consummation of a reorganization, merger, consolidation, statutory share exchange orsimilar form of corporate transaction involving the Company or a Subsidiary (a “Reorganization”),or the sale or other disposition of all or substantially all of the Company’s assets (a “Sale”) orthe acquisition of assets or stock of another corporation (an “Acquisition”), unless immediatelyfollowing such Reorganization, Sale or Acquisition: (A) all or substantially all of the individualsand entities who were the beneficial owners, respectively, of the outstanding Company Common Stockand outstanding Company Voting Securities immediately prior to such Reorganization, Sale orAcquisition beneficially own, directly or indirectly, more than 50% of, respectively, the thenoutstanding shares of common stock and the combined voting power of the then outstanding votingsecurities entitled to vote generally in the election of directors, as the case may be, of thecorporation resulting from such Reorganization, Sale or Acquisition
 

 

(including, without limitation, a corporation which as a result of such transaction owns theCompany or all or substantially all of the Company’s assets or stock either directly or through oneor more subsidiaries, the “Surviving Company”) in substantially the same proportions as theirownership, immediately prior to such Reorganization, Sale or Acquisition, of the outstandingCompany Common Stock and the outstanding Company Voting Securities, as the case may be, and (B) noperson (other than (i) the Company or any Subsidiary of the Company, (ii) the Surviving Company orits ultimate parent corporation, (iii) any employee benefit plan (or related trust) sponsored ormaintained by any of the foregoing, or (iv) any person acquiring Company Common Stock or CompanyVoting Securities, as the case may be, directly from the Company) is the beneficial owner, directlyor indirectly, of 35% or more of the total common stock or 35% or more of the total voting power ofthe outstanding voting securities eligible to elect directors of the Surviving Company, and (C) atleast a majority of the members of the board of directors of the Surviving Company were IncumbentDirectors at the time of the Board’s approval of the execution of the initial agreement providingfor such Reorganization, Sale or Acquisition (any Reorganization, Sale or Acquisition whichsatisfies all of the criteria specified in (A), (B) and (C) above shall be deemed to be a“Non-Qualifying Transaction”); or
          (d) approval by the stockholders of the Company of a complete liquidation or dissolution ofthe Company.
     3. Employment Period. The Company hereby agrees to continue Executive in its employ,and Executive hereby agrees to remain in the employ of the Company subject to the terms andconditions of this Agreement, for the period commencing on the Effective Date and ending on thesecond anniversary of such date (the “Employment Period”).
     4. Terms of Employment.
          (a) Position and Duties.
               (i) During the Employment Period, (A) Executive’s position (including status, offices, titlesand reporting requirements), authority, duties and responsibilities shall be at least commensuratein all material respects with the most significant of those held, exercised and assigned at anytime during the 120-day period immediately preceding the Effective Date, and (B) Executive’sservices shall be performed at the location where Executive was employed immediately preceding theEffective Date or any office or location less than 35 miles from such location.
               (ii) During the Employment Period, and excluding any periods of vacation and sick leave towhich Executive is entitled, Executive agrees to devote reasonable attention and time during normalbusiness hours to the business and affairs of the Company and, to the extent necessary to dischargethe responsibilities assigned to
 

 

Executive hereunder, to use Executive’s reasonable best efforts to perform faithfully andefficiently such responsibilities. During the Employment Period it shall not be a violation ofthis Agreement for Executive to (A) serve on corporate, civic or charitable boards or committees,(B) deliver lectures, fulfill speaking engagements or teach at educational institutions and (C)manage personal investments, so long as such activities do not significantly interfere with theperformance of Executive’s responsibilities as an employee of the Company in accordance with thisAgreement. It is expressly understood and agreed that to the extent that any such activities havebeen conducted by Executive prior to the Effective Date, the continued conduct of such activities(or the conduct of activities similar in nature and scope thereto) subsequent to the Effective Dateshall not thereafter be deemed to interfere with the performance of Executive’s responsibilities tothe Company.
          (b) Compensation.
               (i) Base Salary. During the Employment Period, Executive shall receive an annualbase salary (“Annual Base Salary”), which shall be paid at a monthly rate, at least equal to 12times the highest monthly base salary paid or payable, including any base salary which has beenearned but deferred, to Executive by the Company and its affiliated companies in respect of the12-month period immediately preceding the month in which the Effective Date occurs. During theEmployment Period, the Annual Base Salary shall be reviewed no more than 12 months after the lastsalary increase awarded to Executive prior to the Effective Date and thereafter at least annually.Any increase in Annual Base Salary shall not serve to limit or reduce any other obligation toExecutive under this Agreement. Annual Base Salary shall not be reduced after any such increaseand the term Annual Base Salary as used in this Agreement shall refer to Annual Base Salary as soincreased. As used in this Agreement, the term “affiliated companies” shall include any companycontrolled by, controlling or under common control with the Company.
               (ii) Incentive, Bonus, Savings and Retirement Plans. During the Employment Period,Executive shall be entitled to participate in all incentive, bonus, savings and retirement plans,practices, policies and programs applicable generally to other peer executives of the Company andits affiliated companies, but in no event shall such plans, practices, policies and programsprovide Executive with incentive opportunities (measured with respect to both regular and specialincentive opportunities, to the extent, if any, that such distinction is applicable), savingsopportunities and retirement benefit opportunities, in each case, less favorable, in the aggregate,than the most favorable of those provided by the Company and its affiliated companies for Executiveunder such plans, practices, policies and programs as in effect at any time during the 120-dayperiod immediately preceding the Effective Date or if more favorable to Executive, those providedgenerally at any time after the Effective Date to other peer executives of the Company and itsaffiliated companies.
 

 

               (iii) Welfare Benefit Plans. During the Employment Period, Executive and/orExecutive’s eligible dependents, as the case may be, shall be eligible for participation in andshall receive all benefits under welfare benefit plans, practices, policies and programs providedby the Company and its affiliated companies (including, without limitation, medical, prescription,dental, disability, employee life, group life, accidental death and travel accident insurance plansand programs) to the extent applicable generally to other peer executives of the Company and itsaffiliated companies, but in no event shall such plans, practices, policies and programs provideExecutive with benefits which are less favorable, in the aggregate, than the most favorable of suchplans, practices, policies and programs in effect for Executive at any time during the 120-dayperiod immediately preceding the Effective Date or, if more favorable to Executive, those providedgenerally at any time after the Effective Date to other peer executives of the Company and itsaffiliated companies.
               (iv) Expenses. During the Employment Period, Executive shall be entitled to receiveprompt reimbursement for all reasonable expenses incurred by Executive in accordance with the mostfavorable policies, practices and procedures of the Company and its affiliated companies in effectfor Executive at any time during the 120-day period immediately preceding the Effective Date or, ifmore favorable to Executive, as in effect generally at any time thereafter with respect to otherpeer executives of the Company and its affiliated companies.
               (v) Fringe Benefits. During the Employment Period, Executive shall be entitled tofringe benefits in accordance with the most favorable plans, policies, programs and practices ofthe Company and its affiliated companies as in effect for Executive at any time during the 120-dayperiod immediately preceding the Effective Date or, if more favorable to Executive, as in effectgenerally at any time thereafter with respect to other peer executives of the Company and itsaffiliated companies.
               (vi) Vacation. During the Employment Period, Executive shall be entitled to paidvacation in accordance with the most favorable plans, policies, programs and practices of theCompany and its affiliated companies as in effect for Executive at any time during the 120-dayperiod immediately preceding the Effective Date or, if more favorable to Executive, as in effectgenerally at any time thereafter with respect to other peer executives of the Company and itsaffiliated companies.
     5. Termination of Employment.
          (a) Death or Disability. Executive’s employment shall terminate automatically uponExecutive’s death during the Employment Period. If the Company determines in good faith that theDisability of Executive has occurred during the Employment Period (pursuant to the definition ofDisability set forth below), it may give to Executive written notice in accordance with Section13(b) of this Agreement of its intention to terminate Executive’s employment. In such event,Executive’s employment
 

 

with the Company shall terminate effective on the 30th day after receipt of such notice byExecutive (the “Disability Effective Date”), provided that, within the 30 days after such receipt,Executive shall not have returned to full-time performance of Executive’s duties. For purposes ofthis Agreement, “Disability” has the same meaning as provided in the long-term disability plan orpolicy maintained by the Company or if applicable, most recently maintained, by the Company or ifapplicable, an affiliated company, for Executive, whether or not Executive actually receivesdisability benefits under such plan or policy. If no long-term disability plan or policy was evermaintained on behalf of Executive, “Disability” shall mean the absence of Executive fromExecutive’s duties with the Company on a full-time basis for 180 consecutive business days as aresult of incapacity due to mental or physical illness which is determined to be total andpermanent by a physician selected by the Company or its insurers and acceptable to Executive orExecutive’s legal representative.
          (b) Cause. The Company may terminate Executive’s employment during the EmploymentPeriod for Cause. For purposes of this Agreement, “Cause” shall mean:
               (i) the willful and continued failure of Executive to perform substantially Executive’sreasonably assigned duties with the Company or one of its affiliates (other than any such failureresulting from incapacity due to physical or mental illness or from the assignment to Executive ofduties that would constitute Good Reason under Section 5(c)(i), and specifically excluding anyfailure by Executive, after reasonable efforts, to meet performance expectations), which failurecontinues for a period of at least 30 days after a written demand for substantial performance,signed by a duly authorized officer of the Company, has been delivered to Executive whichspecifically identifies the manner in which Executive has failed to substantially performed hisduties; provided, however, that no failure to perform by Executive after a Notice of Termination isgiven to the Company by Executive shall constitute Cause for purposes of this Agreement, or
               (ii) the willful engaging by Executive in illegal conduct or gross misconduct which ismaterially and demonstrably injurious to the Company.
For purposes of this provision, no act or failure to act, on the part of Executive, shall beconsidered “willful” unless it is done, or omitted to be done, by Executive in bad faith or withoutreasonable belief that Executive’s action or omission was in the best interests of the Company.Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by theBoard or upon the instructions of a superior officer of the Company or based upon the advice ofcounsel for the Company shall be conclusively presumed to be done, or omitted to be done, byExecutive in good faith and in the best interests of the Company. The cessation of employment ofExecutive shall not be deemed to be for Cause unless and until there shall have been delivered toExecutive a copy of a resolution duly adopted by the affirmative vote of not less thanthree-quarters of
 

 

the entire membership of the Board at a meeting of the Board called and held for such purpose(after reasonable notice is provided to Executive and Executive is given an opportunity, togetherwith counsel, to be heard before the Board), finding that, in the good faith opinion of the Board,Executive is guilty of the conduct described in subparagraph (i) or (ii) above, and specifying theparticulars thereof in detail.
          (c) Good Reason. Executive’s employment may be terminated by Executive for GoodReason. For purposes of this Agreement, “Good Reason” shall mean:
               (i) the assignment to Executive of any duties inconsistent in any respect with Executive’sposition (including status, offices, titles and reporting requirements), authority, duties orresponsibilities as contemplated by Section 4(a) of this Agreement, or any other action by theCompany which results in a diminution in such position, authority, duties or responsibilities,excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faithand which is remedied by the Company promptly after receipt of notice thereof given by Executive;
               (ii) any failure by the Company to comply with any of the provisions of Section 4(b) of thisAgreement, other than an isolated, insubstantial and inadvertent failure not occurring in bad faithand which is remedied by the Company promptly after receipt of notice thereof given by Executive;
               (iii) the Company’s requiring Executive to be based at any office or location other than asprovided in Section 4(a)(i)(B) hereof or the Company’s requiring Executive to travel on Companybusiness to a substantially greater extent than required immediately prior to the Effective Date;
               (iv) any purported termination by the Company of Executive’s employment otherwise than asexpressly permitted by this Agreement;
               (v) any failure by the Company to comply with and satisfy Section 12(c) of this Agreement;
               (vi) any other material breach by the Company of any provision of this Agreement.
     Good Reason shall not include Executive’s death or Disability. Executive’s continuedemployment shall not constitute consent to, or a waiver of rights with respect to, any circumstanceconstituting Good Reason hereunder. For purposes of this Section 5(c), any good faithdetermination of “Good Reason” made by Executive shall be conclusive.
          (d) Notice of Termination. Any termination by the Company or Executive shall becommunicated by Notice of Termination to the other party hereto
 

 

given in accordance with Section 13(b) of this Agreement. For purposes of this Agreement, a“Notice of Termination” means a written notice which (i) indicates the specific terminationprovision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonabledetail the facts and circumstances claimed to provide a basis for termination of Executive’semployment under the provision so indicated, and (iii) if the Date of Termination (as definedbelow) is other than the date of receipt of such notice, specifies the termination date. If adispute exists concerning the provisions of this Agreement that apply to Executive’s termination ofemployment, the parties shall pursue the resolution of such dispute with reasonable diligence.Within five (5) days of such a resolution, any party owing any payments pursuant to the provisionsof this Agreement shall make all such payments together with interest accrued thereon at the rateprovided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the “Code”).The failure by Executive or the Company to set forth in the Notice of Termination any fact orcircumstance which contributes to a showing of Good Reason or Cause shall not waive any right ofExecutive or the Company, respectively, hereunder or preclude Executive or the Company,respectively, from asserting such fact or circumstance in enforcing Executive’s or the Company’srights hereunder.
          (e) Date of Termination. “Date of Termination” means (i) if Executive’s employment isterminated other than by reason of death or Disability, the date of receipt of the Notice ofTermination or any later date specified therein, as the case may be, or (ii) if Executive’semployment is terminated by reason of death or Disability, the Date of Termination shall be thedate of death of Executive or the Disability Effective Date, as the case may be.
     6. Obligations of the Company upon Termination.
          (a) Termination by Executive for Good Reason; Termination by the Company Other Than forCause or Disability. If, during the Employment Period, the Company shall terminate Executive’semployment other than for Cause or Disability, or Executive shall terminate employment for GoodReason:
               (i) the Company shall pay to Executive in a lump sum in cash within 30 days after the Date ofTermination the aggregate of the following amounts:
                    A. the sum of (1) Executive’s Annual Base Salary through the Date of Termination to the extentnot theretofore paid, (2) any accrued vacation pay to the extent not theretofore paid, and (3)unless Executive has elected a different payout date in a prior deferral election, any compensationpreviously deferred by Executive (together with any accrued interest or earnings thereon) to theextent not theretofore paid (the sum of the amounts described in clauses (1), (2) and (3) shall behereinafter referred to as the “Accrued Obligations”); and
 

 

                    B. the amount equal to the product of (1) two and (2) the sum of (x) Executive’s Annual BaseSalary and (y) Executive’s target annual bonus for the year in which the Date of Terminationoccurs; and
               (ii) for two years after the Date of Termination, or such longer period as may be provided bythe terms of the appropriate plan, program, practice or policy, the Company shall continue benefitsto Executive and/or Executive’s eligible dependents at least equal to those which would have beenprovided to them in accordance with the plans, programs, practices and policies described inSection 4(b)(iii) of this Agreement if Executive’s employment had not been terminated or, if morefavorable to Executive, as in effect generally at any time thereafter with respect to other peerexecutives of the Company and its affiliated companies and their families, provided, however, thatif Executive becomes re-employed with another employer and is eligible to receive medical or otherwelfare benefits under another employer provided plan, the Company’s obligations under this Section6(a)(ii) shall cease; and
               (iii) as of the Date of Termination, all of Executive’s outstanding options to acquire commonstock of the Company and other compensatory awards from the Company in the nature of rights thatmay be exercised shall become fully vested and exercisable, and all restrictions on Executive’soutstanding shares of restricted stock of the Company shall lapse; and
               (iv) to the extent not theretofore paid or provided, the Company shall timely pay or provideto Executive any other amounts or benefits required to be paid or provided or which Executive iseligible to receive under any plan, program, policy or practice or contract or agreement of theCompany and its affiliated companies (such other amounts and benefits shall be hereinafter referredto as the “Other Benefits”).
          (b) Termination by Executive without Good Reason after One Year. If Executive resignswithout Good Reason after the first anniversary of the Effective Date and before the expiration ofthe Employment Period:
               (i) the Company shall pay to Executive in a lump sum in cash within 30 days after the Date ofTermination:
                    A. the Accrued Obligations; and
                    B. the amount equal to the product of (1) a fraction, the numerator of which is the number offull months remaining in the Employment Period from and after the Date of Termination and thedenominator of which is 24, and (2) the sum of Executive’s Annual Base Salary and Executive’starget annual bonus for the year in which the Date of Termination occurs; and
 

 

               (ii) for the remaining term of the Employment Period, or such longer period as may beprovided by the terms of the appropriate plan, program, practice or policy, the Company shallcontinue benefits to Executive and/or Executive’s eligible dependents at least equal to those whichwould have been provided to them in accordance with the plans, programs, practices and policiesdescribed in Section 4(b)(iii) of this Agreement if Executive’s employment had not been terminatedor, if more favorable to Executive, as in effect generally at any time thereafter with respect toother peer executives of the Company and its affiliated companies and their families, provided,however, that if Executive becomes re-employed with another employer and is eligible to receivemedical or other welfare benefits under another employer provided plan, the Company’s obligationsunder this Section 6(b)(ii) shall cease; and
               (iii) to the extent not theretofore paid or provided, the Company shall timely pay or provideto Executive any Other Benefits.
          (c) Death or Disability. If Executive’s employment is terminated by reason ofExecutive’s death or Disability during the Employment Period, this Agreement shall terminatewithout further obligations to Executive or Executive’s estate, beneficiaries or legalrepresentatives under this Agreement, other than for payment of Accrued Obligations and the timelypayment or provision of Other Benefits. Accrued Obligations shall be paid to Executive orExecutive’s estate, beneficiaries or legal representatives, as applicable, in a lump sum in cashwithin 30 days of the Date of Termination. The term Other Benefits as used in this Section 6(c)shall include without limitation, and Executive or Executive’s estate, beneficiaries and/or legalrepresentatives shall be entitled to receive, benefits under the plans, programs, practices andpolicies of the Company or any affiliated company as in effect with respect to Executive on theDate of Termination.
          (d) Resignation without Good Reason within One Year; Termination for Cause. IfExecutive resigns without Good Reason prior to the first anniversary of the Effective Date, thisAgreement shall terminate without further obligations to Executive, other than for AccruedObligations and the timely payment or provision of Other Benefits. If Executive’s employment isterminated for Cause during the Employment Period, this Agreement shall terminate without furtherobligations to Executive other than the obligation to pay to Executive (x) his Annual Base Salarythrough the Date of Termination, (y) the amount of any compensation previously deferred byExecutive, and (z) Other Benefits, in each case to the extent theretofore unpaid. In either suchcase, all Accrued Obligations shall be paid to Executive in a lump sum in cash within 30 days ofthe Date of Termination.
          (e) Expiration of Employment Period. If Executive’s employment shall be terminateddue to the normal expiration of the Employment Period, this Agreement shall terminate withoutfurther obligations to Executive, other than for payment of Accrued Obligations and the timelypayment or provision of Other Benefits.
 

 

     7. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limitExecutive’s continuing or future participation in any plan, program, policy or practice provided bythe Company or any of its affiliated companies and for which Executive may qualify, nor, subject toSection 13(f), shall anything herein limit or otherwise affect such rights as Executive may haveunder any contract or agreement with the Company or any of its affiliated companies. Amounts whichare vested benefits or which Executive is otherwise entitled to receive under any plan, policy,practice or program of or any contract or agreement with the Company or any of its affiliatedcompanies at or subsequent to the Date of Termination shall be payable in accordance with suchplan, policy, practice or program or contract or agreement except as explicitly modified by thisAgreement.
     8. Full Settlement; No Mitigation. The Company’s obligation to make the paymentsprovided for in this Agreement and otherwise to perform its obligations hereunder shall not beaffected by any set-off, counterclaim, recoupment, defense or other claim, right or action whichthe Company may have against Executive or others. In no event shall Executive be obligated to seekother employment or take any other action by way of mitigation of the amounts payable to Executiveunder any of the provisions of this Agreement and, except as provided in Section 6(a)(ii) and6(b)(ii), such amounts shall not be reduced whether or not Executive obtains other employment.
     9. Costs of Enforcement. Each party hereto shall pay its own legal fees and expensesincurred as a result of any contest (regardless of the outcome thereof) by the Company, Executiveor others of the validity or enforceability of, or liability under, any provision of this Agreementor any guarantee of performance thereof (including as a result of any contest by Executive aboutthe amount of any payment pursuant to this Agreement).
     10. Mandatory Reduction of Payments in Certain Events.
          (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall bedetermined that any payment or distribution by the Company to or for the benefit of Executive(whether paid or payable or distributed or distributable pursuant to the terms of this Agreement orotherwise) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code(the “Excise Tax”), then, prior to the making of any Payment to Executive, a calculation shall bemade comparing (i) the net after-tax benefit to Executive of the Payment after payment of theExcise Tax, to (ii) the net after-tax benefit to Executive if the Payment had been limited to theextent necessary to avoid being subject to the Excise Tax. If the amount calculated under (i)above is less than the amount calculated under (ii) above, then the Payment shall be limited to theextent necessary to avoid being subject to the Excise Tax (the “Reduced Amount”). In that event,Executive shall direct which Payments are to be modified or reduced.
 

 

          (b) The determination of whether an Excise Tax would be imposed, the amount of such ExciseTax, and the calculation of the amounts referred to Section 10(a)(i) and (ii) above shall be madeby the Company’s regular independent accounting firm at the expense of the Company or, at theelection and expense of Executive, another nationally recognized independent accounting firm (the“Accounting Firm”) which shall provide detailed supporting calculations. Any determination by theAccounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty inthe application of Section 4999 of the Code at the time of the initial determination by theAccounting Firm hereunder, it is possible that Payments which Executive was entitled to, but didnot receive pursuant to Section 10(a), could have been made without the imposition of the ExciseTax (“Underpayment”). In such event, the Accounting Firm shall determine the amount of theUnderpayment that has occurred and any such Underpayment shall be promptly paid by the Company toor for the benefit of Executive.
          (c) In the event that the provisions of Code Section 280G and 4999 or any successor provisionsare repealed without succession, this Section 10 shall be of no further force or effect.
     11. Confidential Information. Executive shall hold in a fiduciary capacity for thebenefit of the Company all secret or confidential information, knowledge or data relating to theCompany or any of its affiliated companies, and their respective businesses, which shall have beenobtained by Executive during Executive’s employment by the Company or any of its affiliatedcompanies and which shall not be or become public knowledge (other than by acts by Executive orrepresentatives of Executive in violation of this Agreement). After termination of Executive’semployment with the Company, Executive shall not, without the prior written consent of the Companyor as may otherwise be required by law or legal process, communicate or divulge any suchinformation, knowledge or data to anyone other than the Company and those designated by it. In noevent shall an asserted violation of the provisions of this Section 11 constitute a basis fordeferring or withholding any amounts otherwise payable to Executive under this Agreement.
     12. Successors.
          (a) This Agreement is personal to Executive and without the prior written consent of theCompany shall not be assignable by Executive otherwise than by will or the laws of descent anddistribution. This Agreement shall inure to the benefit of and be enforceable by Executive’s legalrepresentatives.
          (b) This Agreement shall inure to the benefit of and be binding upon the Company and itssuccessors and assigns.
 

 

          (c) The Company will require any successor (whether direct or indirect, by purchase, merger,consolidation or otherwise) to all or substantially all of the business and/or assets of theCompany to assume expressly and agree to perform this Agreement in the same manner and to the sameextent that the Company would be required to perform it if no such succession had taken place. Asused in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successorto its business and/or assets as aforesaid which assumes and agrees to perform this Agreement byoperation of law, or otherwise.
     13. Miscellaneous.
          (a) This Agreement shall be governed by and construed in accordance with the laws of the Stateof Delaware, without reference to principles of conflict of laws. The captions of this Agreementare not part of the provisions hereof and shall have no force or effect. This Agreement may not beamended or modified otherwise than-by a written agreement executed by the parties hereto or theirrespective successors and legal representatives.
          (b) All notices and other communications hereunder shall be in writing and shall be given byhand delivery to the other party or by registered or certified mail, return receipt requested,postage prepaid, addressed as follows:             If to Executive: Mark S. Andreaco