Common use of Code Section 280G Clause in Contracts

Code Section 280G. Notwithstanding any provision in this Agreement to the contrary, if all or any portion of the payments or benefits received or realized by Executive either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates would constitute a "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (or any successor section) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall only be made if, by reason of such reduction, Executive's net after tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this Section 14, "net after tax benefit" shall mean the sum of (i) the total amount received or realized by Executive pursuant to this Agreement that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iii) the amount of federal or state income taxes payable with respect to the payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits shall be realized by Executive (based upon the rate in effect for such year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by Section 4999 of the Code and any corresponding and applicable state law provision.

Code Section 280G. Notwithstanding (a) In the event it shall be determined that any provision payment or distribution to you or for your benefit which is in this Agreement to the contrary, if all nature of compensation and is contingent on a change in the ownership or any effective control of the Company or the ownership of a substantial portion of the payments or benefits received or realized by Executive either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from assets of the Company or any of its affiliates would constitute a "parachute payment" (within the meaning of Section 280G 280G(b)(2) of the Internal Revenue Code), whether paid or payable pursuant to this letter or otherwise (a “Payment”), would constitute a “parachute payment” under Section 280G(b)(2) of the Code and would be subject to the excise tax imposed by Section 4999 of 1986the Code (together with any interest or penalties imposed with respect to such excise tax, as amended (or any successor section) and the regulations promulgated thereunder (“Excise Tax”), then the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive Payments shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments thereof shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall but only be made if, by reason of such reduction, Executive's the net after after-tax benefit received by you shall exceed the net after after-tax benefit received by you if no such reduction were not was made. For purposes of this Section 147(a), "“net after after-tax benefit" ” shall mean the sum of (i) the total amount received Payments which you receive or realized by Executive pursuant are then entitled to this Agreement receive from the Company that would constitute a "“parachute payment" payments” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provisionCode, less (iiiii) the amount of federal or all federal, state and local income taxes payable with respect to the payments or benefits described in (i) and (ii) above Payments calculated at the maximum marginal individual income tax rate for each year in which payments or benefits the Payments shall be realized by Executive paid to you (based upon on the rate in effect for such year as set forth in the Code as in effect at the time of the first receipt or realization payment of the foregoing), less (iviii) the amount of excise taxes Excise Taxes imposed with respect to the payments or benefits described in Payments. (ib) and (ii) above All determinations required to be made under this Section 7 shall be made by Section 4999 such nationally recognized accounting firm as may be selected by the Audit Committee of the Code Board as constituted immediately prior to the Change in Control (the “Accounting Firm”), provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination, together with detailed supporting calculations and documentation, to you and the Company within 15 business days following the date of termination of your employment, if applicable, or such other time as requested by you (provided that you reasonably believe that any corresponding of the Payments may be subject to the Excise Tax) or the Company. All fees and applicable state law provisionexpenses of the Accounting Firm shall be borne solely by the Company.

Code Section 280G. Notwithstanding If any provision payment or benefit received or to be received by Executive in this Agreement to the contrary, if all connection with a “change in ownership or any portion control” of the payments or benefits received or realized by Executive either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates would constitute a "parachute payment" (within the meaning of Section 280G of the Internal Revenue Code Code), whether payable pursuant to the terms of 1986, as amended (this Agreement or any successor section) and other plan, arrangement or agreement with the regulations promulgated thereunder Company or an affiliate of the Company (the "“Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive the Payments shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments thereof shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall but only be made if, by reason of such reduction, Executive's the net after after-tax benefit to Executive shall exceed the net after after-tax benefit to Executive if no such reduction were not was made. For purposes of this Section 1412, "“net after after-tax benefit" ” shall mean the sum of (i) the total amount received of all payments and the value of all benefits which Executive receives or realized by Executive pursuant is then entitled to this Agreement receive from the Company that would constitute a "“parachute payment" payments” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provisionCode, less (iiiii) the amount of federal or all federal, state and local income taxes payable with respect to the payments or benefits described in (i) and (ii) above foregoing calculated at the maximum marginal individual income tax rate for each year in which payments or benefits the foregoing shall be realized by paid to Executive (based upon on the rate in effect for such year as set forth in the Code as in effect at the time of the first receipt or realization payment of the foregoing), less (iviii) the amount of excise taxes imposed with respect to the payments or and benefits described in (i) and (ii) above by Section 4999 of the Code code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable to the Company, provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any corresponding or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and applicable state law provisionabsolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. Notwithstanding In the event that it is determined that any provision in this Agreement payment or distribution of any type to or for your benefit made by the contraryCompany, if all by any of its affiliates, by any person who acquires ownership or any effective control or ownership of a substantial portion of the payments or benefits received or realized by Executive either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates would constitute a "parachute payment" Company’s assets (within the meaning of Section 280G of the Internal Revenue Code or by any affiliate of 1986such person, as amended (whether paid or any successor section) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provision, such payments payable or benefits provided to Executive shall be reduced by reducing the amount of payments distributed or benefits payable to Executive distributable pursuant to Section 9 the terms of this Agreement to or otherwise (the extent necessary so that no portion of such payments shall “Total Payments”), would be subject to the excise tax imposed by Section 4999 of the Code and or any corresponding and/or applicable state law provisioninterest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are collectively referred to as the “Excise Tax”), then such payments or distributions or benefits shall be payable either: (i) in full; provided, however, that such reduction shall only be made if, by reason or (ii) as to the maximum value of such reductionlesser amount which would result in no portion of such payments or distributions or benefits being subject to the Excise Tax. You shall receive the greater, Executive's net after on an after-tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this Section 14basis, "net after tax benefit" shall mean the sum of (i) or (ii) above. If the total Total Payments must be reduced as provided in the previous paragraph, the reduction shall occur in the following order: (1) reduction of cash payments for which the full amount received or realized by Executive pursuant to this Agreement that would constitute is treated as a "parachute payment" within the meaning of (as defined under Code Section 280G and its regulations); (2) cancellation of accelerated vesting (or, if necessary, payment) of cash awards for which the full amount in not treated as a parachute payment; (3) reduction of any continued employee benefits and (4) cancellation of any accelerated vesting of equity awards. In selecting the equity awards (if any) for which vesting will be reduced under clause (4) of the Code preceding sentence, awards shall be selected in a manner that maximizes the after-tax aggregate amount of reduced Total Payments provided to you, provided that if (and only if) necessary in order to avoid the imposition of an additional tax under Section 409A of the Code, awards instead shall be selected in the reverse order of the date of grant. For the avoidance of doubt, for purposes of measuring an equity compensation award's value to you when performing the determinations under the preceding paragraph, such award's value shall equal the then aggregate fair market value of the vested shares underlying the award less any corresponding aggregate exercise price less applicable taxes. Also, if two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis. All mathematical determinations and applicable state law provision plus all determinations of whether any of the Total Payments are parachute payments that are required to be made under this Section 5(b), shall be made by a nationally recognized independent audit firm selected by the Company (ii) all other payments or benefits which Executive receives or realizes or is then entitled the “Accountants”), who shall provide their determination, together with detailed supporting calculations regarding the amount of any relevant matters, both to receive or realize from the Company and to you. Unless you consent in writing, the Accountants may not be an audit firm that is then providing services in any of its affiliates capacity to the person or entity that would constitute a "parachute payment" within is acquiring the meaning of Section 280G Company. Such determinations shall be made by the Accountants using reasonable good faith interpretations of the Code and any corresponding and applicable state law provisionCode. As expressly permitted by Treasury Regulations section 1.280G-1 Q/A-32, less (iii) the amount of federal or state income taxes payable with respect to performing any present value calculations that are required in connection with this Section 5(b), you and the payments or benefits described in Company each affirmatively elect to utilize the Applicable Federal Rates (i"AFR") and (ii) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits shall be realized by Executive (based upon the rate that are in effect for such year as set forth in the Code at the time of the first receipt or realization of Effective Date and the foregoing), less (iv) Accountants shall therefore use such AFRs in their determinations and calculations. If the amount of Accountants determine that no excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by tax under Section 4999 of the Code is payable with respect to a Total Payment, it shall furnish the Company and any corresponding you with an opinion reasonably acceptable to you that no such excise tax under Section 4999 of the Code will be imposed with respect to such Total Payments. The Company shall pay the fees and applicable state law provisioncosts of the Accountants which are incurred in connection with this Section 5(b).

Code Section 280G. (i) Notwithstanding any provision other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with (A) the Company, (B) any Person (as defined in Section 4(e)) whose actions result in a Change in Control or (C) any Person affiliated with the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called "Total Payments") would not be deductible (in whole or part) by the Company, an affiliate or Person making such payment or providing such benefit as a result of section 280G of the Code, then, to the contrary, if all or any extent necessary to make such portion of the payments Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of section 280G of the Code in such other plan, arrangement or benefits received agreement), the cash Severance Payments shall first be reduced (if necessary, to zero), and all other Severance Payments shall thereafter be reduced (if necessary, to zero); provided, however, that the Executive may elect to have the noncash Severance Payments reduced (or realized eliminated) prior to any reduction of the cash Severance Payments. (ii) For purposes of this limitation, (A) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a "payment" within the meaning of section 280G(b) of the Code shall be taken into account, (B) no portion of the Total Payments shall be taken into account which, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to the Executive and selected by Executive either alone or together with other payments or benefits the Company's accounting firm which Executive receives or realizes or is then entitled (or, in the case of a payment following a Change in Control the accounting firm that was, immediately prior to receive or realize from the Company or any of its affiliates would Change in Control, the Company's independent auditor) (the "Auditor"), does not constitute a "parachute payment" within the meaning of Section 280G section 280G(b)(2) of the Internal Revenue Code Code, including by reason of 1986section 280G(b)(4)(A) of the Code, as amended (or any successor sectionC) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive Severance Payments shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement only to the extent necessary so that no portion of such payments shall be subject the Total Payments (other than those referred to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall only be made if, by reason of such reduction, Executive's net after tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this Section 14, "net after tax benefit" shall mean the sum of in clause (iA) the total amount received or realized by Executive pursuant to this Agreement that would (B)) in their entirety constitute a "parachute payment" reasonable compensation for services actually rendered within the meaning of Section section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions by reason of section 280G of the Code Code, in the opinion of Tax Counsel, and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iiiD) the amount value of federal any noncash benefit or state income taxes payable any deferred payment or benefit included in the Total Payments shall be determined by the Auditor in accordance with respect to the payments or benefits described in (iprinciples of sections 280G(d)(3) and (ii4) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits shall be realized by Executive (based upon the rate in effect for such year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by Section 4999 of the Code and any corresponding and applicable state law provisionCode.

Code Section 280G. 6.1 Notwithstanding any provision anything in this Agreement to the contrary, if all or any portion of the payments or benefits received or realized by Executive either alone or together with other payments or benefits which Executive receives or realizes or Employee is then entitled to receive or realize from the Company or any of its affiliates would constitute a "parachute payment" within the meaning of “disqualified individual” (as defined in Section 280G 280G(c) of the Internal Revenue Code of 1986, as amended (the “Code”)), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to receive from Employer or any successor sectionother person, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for in this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by Employee from Employer and/or such person(s) will be $1.00 less than three (3) times Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code and or (b) paid in full, whichever produces the better “net after-tax position” to Employee (taking into account any corresponding and/or applicable state law provision; provided, however, that such reduction shall only be made if, by reason of such reduction, Executive's net after excise tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this Section 14, "net after tax benefit" shall mean the sum of (i) the total amount received or realized by Executive pursuant to this Agreement that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iii) the amount of federal or state income taxes payable with respect to the payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits shall be realized by Executive (based upon the rate in effect for such year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by under Section 4999 of the Code and any corresponding other applicable taxes). The reduction of payments and applicable state benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made applying principles, assumptions and procedures consistent with Section 280G of the Code by an accounting firm or law provision.firm of national reputation that is selected for this purpose solely by Employer with input from Employee (the “280G Firm”), including the valuation of any non-compete for purposes of determining services to be rendered in the future. In order to assess whether payments under this Agreement or otherwise qualify as reasonable compensation that is exempt from being a parachute payment under Section 280G of the Code, the 280G Firm will retain the services of an independent valuation expert. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from Employer (or its affiliates) used in determining if a “parachute payment” exists, exceeds $1.00 less than three (3) times Employee’s

Code Section 280G. Notwithstanding (a) If any provision in payment or benefit Employee would receive under this Agreement Agreement, when combined with any other payment or benefit Employee receives pursuant to the contrarya Change of Control (for purposes of this section, if all or any portion of the payments or benefits received or realized by Executive either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates a “Payment”) would constitute a "“parachute payment" ” within the meaning of Code Section 280G of the Internal Revenue Code of 1986and, as amended (or any successor section) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provisionbut for this sentence, such payments or benefits provided to Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments shall be subject to the excise tax imposed by Code Section 4999 of (the Code and any corresponding and/or applicable state law provision; provided“Excise Tax”), however, that then such reduction Payment shall only be made if, by reason of such reduction, Executive's net after tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this Section 14, "net after tax benefit" shall mean the sum of either: (i) the total full amount received of such Payment; or realized by Executive pursuant to this Agreement that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) such lesser amount (a “Reduced Payment”) as would result in no portion of the Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local employment taxes, income taxes and the Excise Tax, results in Employee’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all other payments or benefits which Executive receives some portion of the Payment may be subject to the Excise Tax. (b) With respect to Section 7(a), if there is more than one method of reducing the Reduced Payment amount that would result in no portion of the Payment being subject to the Excise Tax, then the Payment shall be reduced or realizes eliminated in the following order: (i) cash payments; (ii) taxable benefits; (iii) nontaxable benefits; and (iv) accelerated vesting of equity awards in a manner that maximizes the amount to be received by Employee. (c) The determination of whether Section 7(a)(i) or is then entitled (ii) applies, and the calculation of the amount of the Reduced Payment if applicable, shall be performed by a nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations to receive or realize from both the Company and any of its affiliates that would constitute a "parachute payment" Employee within the meaning of Section 280G fifteen (15) business days of the Code receipt of notice from Employee that there has been a Payment, or such earlier time as is requested by the Company, in a form that can be relied upon for tax filing purposes. All fees and any corresponding and applicable state law provisionexpenses of the Accounting Firm shall be borne solely by the Company. (d) Employee may receive a Payment that is, in the aggregate, either more or less (iii) than the amount of federal or state income taxes payable with respect to the payments or benefits described in Section 7(a)(i) or (ii) (as applicable, an “Overpayment” or “Underpayment”). If it is finally determined by a court of competent jurisdiction pursuant to a final non-appealable judgment, or the Internal Revenue Service, or by the Accounting Firm upon request by either the Company or Employee, that an Overpayment or Underpayment has been made, then: (i) in the event of an Overpayment, Employee shall promptly repay the Overpayment to the Company, together with interest on the Overpayment at the applicable federal rate from the date of Employee’s receipt of such Overpayment until the date of such repayment; and (ii) above calculated in the event of an Underpayment, the Company shall promptly pay an amount equal to the Underpayment to Employee, together with interest on such amount at the maximum marginal individual income tax applicable federal rate for each year in which payments or benefits shall be realized by Executive (based upon from the rate in effect for date such year as set forth in amount would have been paid to Employee had the Code at provisions of Section 7(a)(ii) not been applied until the time date of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by Section 4999 of the Code and any corresponding and applicable state law provisionpayment.

Code Section 280G. Notwithstanding (a) In the event it shall be determined that any provision payment or distribution to you or for your benefit which is in this Agreement to the contrary, if all nature of compensation and is contingent on a change in the ownership or any effective control of the Company or the ownership of a substantial portion of the payments or benefits received or realized by Executive either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from assets of the Company or any of its affiliates would constitute a "parachute payment" (within the meaning of Section 280G 280G(b)(2) of the Internal Revenue Code), whether paid or payable pursuant to this letter agreement or otherwise (a “Payment”), would constitute a “parachute payment” under Section 280G(b)(2) of the Code and would be subject to the excise tax imposed by Section 4999 of 1986the Code (together with any interest or penalties imposed with respect to such excise tax, as amended (or any successor section) and the regulations promulgated thereunder (“Excise Tax”), then the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive Payments shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments thereof shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall but only be made if, by reason of such reduction, Executive's the net after after-tax benefit received by you shall exceed the net after after-tax benefit received by you if no such reduction were not was made. The specific Payments that shall be reduced and the order of such reduction shall be determined so as to achieve the most favorable economic benefit to you, and to the extent economically equivalent, the Payments shall be reduced pro rata, all as determined by the Company in its sole discretion. For purposes of this Section 14section, "“net after after-tax benefit" ” shall mean the sum of (i) the total amount received Payments which you receive or realized by Executive pursuant are then entitled to this Agreement receive from the Company that would constitute a "“parachute payment" payments” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provisionCode, less (iiiii) the amount of federal or all federal, state and local income taxes payable with respect to the payments or benefits described in (i) and (ii) above Payments calculated at the maximum marginal individual income tax rate for each year in which payments or benefits the Payments shall be realized by Executive paid to you (based upon on the rate in effect for such year as set forth in the Code as in effect at the time of the first receipt or realization payment of the foregoing), less (iviii) the amount of excise taxes Excise Taxes imposed with respect to the payments or benefits described in Payments. (ib) and (ii) above All determinations required to be made under this Section 12 shall be made by Section 4999 such nationally recognized accounting firm as may be selected by the Audit Committee of the Code Board of the Company as constituted immediately prior to the change in control transaction (the “Accounting Firm”), provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination, together with detailed supporting calculations and documentation, to you and the Company within 15 business days following the date of termination of your employment, if applicable, or such other time as requested by you (provided, that you reasonably believe that any corresponding of the Payments may be subject to the Excise Tax) or the Company. All reasonable fees and applicable state law provisionexpenses of the Accounting Firm in reaching such a determination shall be borne solely by the Company.

Code Section 280G. (i) Notwithstanding any provision other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with (A) the Company, (B) any Person (as defined in Section 4(e)) whose actions result in a Change in Control or (C) any Person affiliated with the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called "Total Payments")would not be deductible (in whole or part) by the Company, an affiliate or Person making such payment or providing such benefit as a result of section 280G of the Code, then, to the contrary, if all or any extent necessary to make such portion of the payments Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of section 280G of the Code in such other plan, arrangement or benefits received agreement), the cash Severance Payments shall first be reduced (if necessary, to zero), and all other Severance Payments shall thereafter be reduced (if necessary, to zero); provided, however, that the Executive may elect to have the noncash Severance Payments reduced (or realized eliminated) prior to any reduction of the cash Severance Payments. (ii) For purposes of this limitation, (A) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a "payment" within the meaning of section 280G(b) of the Code shall be taken into account, (B) no portion of the Total Payments shall be taken into account which, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to the Executive and selected by Executive either alone or together with other payments or benefits the Company's accounting firm which Executive receives or realizes or is then entitled (or, in the case of a payment following a Change in Control the accounting firm that was, immediately prior to receive or realize from the Company or any of its affiliates would Change in Control, the Company's independent auditor) (the "Auditor"),does not constitute a "parachute payment" within the meaning of Section 280G section 280G(b)(2) of the Internal Revenue Code Code, including by reason of 1986section 280G(b)(4)(A) of the Code, as amended (or any successor sectionC) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive Severance Payments shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement only to the extent necessary so that no portion of such payments shall be subject the Total Payments (other than those referred to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall only be made if, by reason of such reduction, Executive's net after tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this Section 14, "net after tax benefit" shall mean the sum of in clause (iA) the total amount received or realized by Executive pursuant to this Agreement that would or(B)) in their entirety constitute a "parachute payment" reasonable compensation for services actually rendered within the meaning of Section section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions by reason of section 280G of the Code Code, in the opinion of Tax Counsel, and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iiiD) the amount value of federal any noncash benefit or state income taxes payable any deferred payment or benefit included in the Total Payments shall be determined by the Auditor in accordance with respect to the payments or benefits described in (iprinciples of sections 280G(d)(3) and (ii4) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits shall be realized by Executive (based upon the rate in effect for such year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by Section 4999 of the Code and any corresponding and applicable state law provisionCode.

Code Section 280G. Notwithstanding (a) Executive shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any provision in this Agreement amount payable to the contraryor other benefit receivable by Executive hereunder, if all or including, without limitation, any portion excise tax imposed by Section 4999 of the payments Code; provided, however, that any such amount or benefits benefit deemed to be a Parachute Payment (as defined below) alone or when added to any other amount payable or paid to or other benefit receivable or received or realized by Executive either alone or together with other payments or benefits which Executive receives or realizes or is then entitled deemed to receive or realize from the Company or any of its affiliates would constitute a "parachute payment" within Parachute Payment (whether or not under an existing plan, arrangement or other agreement), and would result in the meaning imposition on Executive of an excise tax under Section 280G 4999 of the Internal Revenue Code of 1986Code, as amended (or any successor sectionall such amounts and benefits being hereinafter called “Total Payments”) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments thereof shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall but only be made if, by reason of such reduction, Executive's the net after after-tax benefit received by the Executive shall exceed the net after after-tax benefit received by the Executive if no such reduction were not was made. For purposes of this Section 143.3, "“net after after-tax benefit" ” shall mean the sum of (i) the total amount received or realized by Executive pursuant to this Agreement that would constitute a "parachute payment" within of all payments and the meaning value of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits which the Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provisionParachute Payments, less (iiiii) the amount of federal or all federal, state and local income taxes payable with respect to the payments or benefits described in (i) and (ii) above foregoing calculated at the maximum marginal individual income tax rate for each year in which payments or benefits the foregoing shall be realized by paid to the Executive (based upon on the rate in effect for such year as set forth in the Code as in effect at the time of the first receipt or realization payment of the foregoing)) and the amount of applicable employment taxes, less (iviii) the amount of excise taxes imposed with respect to the payments or and benefits described in (i) and (ii) above by Section 4999 of the Code and any corresponding and applicable state law provisionCode. For purposes of this Section 3.3, “Parachute Payment” shall mean a “parachute payment” as defined in Section 280G of the Code.

Code Section 280G. Notwithstanding (a) In the event it shall be determined that any provision payment or distribution to you or for your benefit which is in this Agreement to the contrary, if all nature of compensation and is contingent on a change in the ownership or any effective control of the Company or the ownership of a substantial portion of the payments or benefits received or realized by Executive either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from assets of the Company (within the meaning of Section 280G(b)(2) of the Code), whether paid or any of its affiliates payable pursuant to this letter or otherwise (a "Payment"), would constitute a "parachute payment" within the meaning of under Section 280G 280G(b)(2) of the Internal Revenue Code and would be subject to the excise tax imposed by Section 4999 of 1986the Code (together with any interest or penalties imposed with respect to such excise tax, as amended (or any successor section) and the regulations promulgated thereunder (the "CodeExcise Tax") and/or any corresponding and applicable state law provision), such payments or benefits provided to Executive then the Payments shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments thereof shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall but only be made if, by reason of such reduction, Executive's the net after after-tax benefit received by you shall exceed the net after after-tax benefit received by you if no such reduction were not was made. For purposes of this Section 147(a), "net after after-tax benefit" shall mean the sum of (i) the total amount received Payments which you receive or realized by Executive pursuant are then entitled to this Agreement receive from the Company that would constitute a "parachute paymentpayments" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provisionCode, less (iiiii) the amount of federal or all federal, state and local income taxes payable with respect to the payments or benefits described in (i) and (ii) above Payments calculated at the maximum marginal individual income tax rate for each year in which payments or benefits the Payments shall be realized by Executive paid to you (based upon on the rate in effect for such year as set forth in the Code as in effect at the time of the first receipt or realization payment of the foregoing), less (iviii) the amount of excise taxes Excise Taxes imposed with respect to the payments or benefits described in Payments. (ib) and (ii) above All determinations required to be made under this Section 7 shall be made by Section 4999 such nationally recognized accounting firm as may be selected by the Audit Committee of the Code Board of Directors of the Company as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm's determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination, together with detailed supporting calculations and documentation, to you and the Company within 15 business days following the date of termination of your employment, if applicable, or such other time as requested by you (provided that you reasonably believe that any corresponding of the Payments may be subject to the Excise Tax) or the Company. All fees and applicable state law provisionexpenses of the Accounting Firm shall be borne solely by the Company.

Code Section 280G. Notwithstanding any provision in this Agreement to the contrarycontrary contained herein except the last sentence of this Section 4(e), if all or any portion of the cash payments or due and the other benefits received or realized by to which Executive shall become entitled under this Agreement, either alone or together with other payments made pursuant to this Agreement or benefits which any other agreement between Executive receives or realizes or is then entitled to receive or realize from and the Company or any compensation plan or program that are in the nature of its affiliates compensation to Executive and are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company or otherwise, would constitute a "“parachute payment" within the meaning of Section ” as defined in Code § 280G of the Internal Revenue Code of 1986, as amended (or any successor section) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provisionprovision thereto), such lump sum payment and/or such other benefits and payments or benefits provided to Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement (but not below zero) to the extent necessary so that largest aggregate amount as will result in no portion of such payments shall be thereof being subject to the excise tax imposed by Section under Code § 4999 (or any successor provision thereto) or being non-deductible to the Company for Federal Income Tax purposes pursuant to Code § 280G (or any successor provision thereto). Within ten days after the Company informs Executive of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall only be made if, by reason necessity of such reduction, Executive's net after tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this Section 14, "net after tax benefit" shall mean the sum of (i) the total amount received or realized by Executive pursuant to this Agreement that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iii) the amount of federal or state income taxes payable with respect to reducing the payments or benefits described in (i) and (ii) above calculated at to avoid the maximum marginal individual income excise tax rate for each year in which payments or benefits shall be realized by non-deductibility or promptly after Executive (based upon the rate in effect for such year as set forth in the Code at the time otherwise becomes aware of the first receipt or realization necessity of the foregoing)such a reduction, less (iv) Executive in good faith shall determine the amount of excise taxes imposed with respect any reduction to be made pursuant to this Section 4(e) and shall select from among the foregoing benefits and payments (selecting first from among amounts other than those that constitute deferred compensation pursuant to Section 409A) those which shall be reduced. No modification of, or successor provision to, Code § 280G or § 4999 subsequent to the payments date of this Agreement shall, however, reduce the benefits to which Executive would be entitled under this Agreement in the absence of this Section 4(e) to a greater extent than they would have been reduced if Code § 280G and § 4999 had not been modified or benefits described superseded subsequent to the date of this Agreement, notwithstanding anything to the contrary provided in (i) and (ii) above by the first sentence of this Section 4999 of the Code and any corresponding and applicable state law provision4(e).

Code Section 280G. Notwithstanding any provision in of this Agreement to the contrary, if all or any portion of the payments or benefits received or realized by any Executive pursuant to this Agreement either alone or together with other payments or benefits which such Executive receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates would constitute a "an “excess parachute payment" ” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (or any successor section) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to such Executive shall be reduced by reducing the amount of payments or benefits payable to such Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, provided that such reduction shall only be made if, by reason of such reduction, such Executive's ’s net after tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this Section 14paragraph, "“net after tax benefit" ” shall mean the sum of (i) the total amount received or realized by such Executive pursuant to this Agreement that would constitute a "“parachute payment" ” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision provision, plus (ii) all other payments or benefits which such Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "“parachute payment" ” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iii) the amount of federal or state income taxes payable with respect to the payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits shall be realized by such Executive (based upon the rate in effect for such year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by Section 4999 of the Code and any corresponding and applicable state law provision.

Code Section 280G. Notwithstanding (a) In the event it shall be determined that any provision payment or distribution to you or for your benefit which is in this Agreement to the contrary, if all nature of compensation and is contingent on a change in the ownership or any effective control of the Company or the ownership of a substantial portion of the payments or benefits received or realized by Executive either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from assets of the Company or any of its affiliates would constitute a "parachute payment" (within the meaning of Section 280G 280G(b)(2) of the Internal Revenue Code), whether paid or payable pursuant to this letter or otherwise (a “Payment”), would constitute a “parachute payment” under Section 280G(b)(2) of the Code and would be subject to the excise tax imposed by Section 4999 of 1986the Code (together with any interest or penalties imposed with respect to such excise tax, as amended (or any successor section) and the regulations promulgated thereunder (“Excise Tax”), then the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive Payments shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments thereof shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall but only be made if, by reason of such reduction, Executive's the net after after-tax benefit received by you shall exceed the net after after-tax benefit received by you if no such reduction were not was made. The specific Payments that shall be reduced and the order of such reduction shall be determined so as to achieve the most favorable economic benefit to you, and to the extent economically equivalent, the Payments shall be reduced pro rata, all as determined by the Company in its sole discretion. For purposes of this Section 148(a), "“net after after-tax benefit" ” shall mean the sum of (i) the total amount received Payments which you receive or realized by Executive pursuant are then entitled to this Agreement receive from the Company that would constitute a "“parachute payment" payments” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provisionCode, less (iiiii) the amount of federal or all federal, state and local income taxes payable with respect to the payments or benefits described in (i) and (ii) above Payments calculated at the maximum marginal individual income tax rate for each year in which payments or benefits the Payments shall be realized by Executive paid to you (based upon on the rate in effect for such year as set forth in the Code as in effect at the time of the first receipt or realization payment of the foregoing), less (iviii) the amount of excise taxes Excise Taxes imposed with respect to the payments or benefits described in Payments. (ib) and (ii) above All determinations required to be made under this Section 8 shall be made by Section 4999 such nationally recognized accounting firm as may be selected by the Audit Committee of the Code Board of Directors of the Company as constituted immediately prior to the change in control transaction (the “Accounting Firm”), provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination, together with detailed supporting calculations and documentation, to you and the Company within 15 business days following the date of termination of your employment, if applicable, or such other time as requested by you (provided that you reasonably believe that any corresponding of the Payments may be subject to the Excise Tax) or the Company. All fees and applicable state law provisionexpenses of the Accounting Firm shall be borne solely by the Company.

Code Section 280G. Notwithstanding (a) In the event it shall be determined that any provision payment or distribution to you or for your benefit which is in this Agreement to the contrary, if all nature of compensation and is contingent on a change in the ownership or any effective control of the Company or the ownership of a substantial portion of the payments or benefits received or realized by Executive either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from assets of the Company or any of its affiliates would constitute a "parachute payment" (within the meaning of Section 280G 280G(b)(2) of the Internal Revenue Code), whether paid or payable pursuant to this letter or otherwise (a “Payment”), would constitute a “parachute payment” under Section 280G(b)(2) of the Code and would be subject to the excise tax imposed by Section 4999 of 1986the Code (together with any interest or penalties imposed with respect to such excise tax, as amended (or any successor section) and the regulations promulgated thereunder (“Excise Tax”), then the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive Payments shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments thereof shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall but only be made if, by reason of such reduction, Executive's the net after after-tax benefit received by you shall exceed the net after after-tax benefit received by you if no such reduction were not was made. The specific Payments that shall be reduced and the order of such reduction shall be determined so as to achieve the most favorable economic benefit to you, and to the extent economically equivalent, the Payments shall be reduced pro rata, all as determined by the Company in its sole discretion. For purposes of this Section 149(a), "“net after after-tax benefit" ” shall mean the sum of (i) the total amount received Payments which you receive or realized by Executive pursuant are then entitled to this Agreement receive from the Company that would constitute a "“parachute payment" payments” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provisionCode, less (iiiii) the amount of federal or all federal, state and local income taxes payable with respect to the payments or benefits described in (i) and (ii) above Payments calculated at the maximum marginal individual income tax rate for each year in which payments or benefits the Payments shall be realized by Executive paid to you (based upon on the rate in effect for such year as set forth in the Code as in effect at the time of the first receipt or realization payment of the foregoing), less (iviii) the amount of excise taxes Excise Taxes imposed with respect to the payments or benefits described in Payments. (ib) and (ii) above All determinations required to be made under this Section 9 shall be made by Section 4999 such nationally recognized accounting firm as may be selected by the Audit Committee of the Code Board of Directors of the Company as constituted immediately prior to the change in control transaction (the “Accounting Firm”), provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination, together with detailed supporting calculations and documentation, to you and the Company within 15 business days following the date of termination of your employment, if applicable, or such other time as requested by you (provided that you reasonably believe that any corresponding of the Payments may be subject to the Excise Tax) or the Company. All fees and applicable state law provisionexpenses of the Accounting Firm shall be borne solely by the Company.

Code Section 280G. Notwithstanding (a) Executive shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any provision in this Agreement amount payable to the contraryor other benefit receivable by Executive hereunder, if all or including, without limitation, any portion excise tax imposed by Section 4999 of the payments Code; provided, however, that any such amount or benefits benefit deemed to be a Parachute Payment (as defined below) alone or when added to any other amount payable or paid to or other benefit receivable or received or realized by Executive either alone or together with other payments or benefits which Executive receives or realizes or is then entitled deemed to receive or realize from the Company or any of its affiliates would constitute a "parachute payment" within Parachute Payment (whether or not under an existing plan, arrangement or other agreement), and would result in the meaning imposition on Executive of an excise tax under Section 280G 4999 of the Internal Revenue Code of 1986(all such amounts and benefits being hereinafter called “Total Payments”), as amended (or any successor section) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments thereof shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall but only be made if, by reason of such reduction, Executive's the net after after-tax benefit received by Executive shall exceed the net after after-tax benefit received by Executive if no such reduction were not was made. For purposes of this Section 143.3, "“net after after-tax benefit" ” shall mean the sum of (i) the total amount received or realized by Executive pursuant to this Agreement that would constitute a "parachute payment" within of all payments and the meaning value of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provisionParachute Payments, less (iiiii) the amount of federal or all federal, state and local income taxes payable with respect to the payments or benefits described in (i) and (ii) above foregoing calculated at the maximum marginal individual income tax rate for each year in which payments or benefits the foregoing shall be realized by paid to Executive (based upon on the rate in effect for such year as set forth in the Code as in effect at the time of the first receipt or realization payment of the foregoing)) and the amount of applicable employment taxes, less (iviii) the amount of excise taxes imposed with respect to the payments or and benefits described in (i) and (ii) above by Section 4999 of the Code and any corresponding and applicable state law provisionCode. For purposes of this Section 3.3, “Parachute Payment” shall mean a “parachute payment” as defined in Section 280G of the Code.

Code Section 280G. Notwithstanding If any provision payment or benefit received or to be received by Executive in this Agreement to the contrary, if all connection with a “change in ownership or any portion control” of the payments or benefits received or realized by Executive either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates would constitute a "parachute payment" (within the meaning of Section 280G of the Internal Revenue Code Code), whether payable pursuant to the terms of 1986, as amended (this Agreement or any successor section) and other plan, arrangement or agreement with the regulations promulgated thereunder Company or an affiliate of the Company (the "“Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive the Payments shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments thereof shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall but only be made if, by reason of such reduction, Executive's the net after after-tax benefit to Executive shall exceed the net after after-tax benefit to Executive if no such reduction were not was made. For purposes of this Section 1412, "“net after after-tax benefit" ” shall mean the sum of (i) the total amount received of all payments and the value of all benefits which Executive receives or realized by Executive pursuant is then entitled to this Agreement receive from the Company that would constitute a "“parachute payment" payments” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provisionCode, less (iiiii) the amount of federal or all federal, state and local income taxes payable with respect to the payments or benefits described in (i) and (ii) above foregoing calculated at the maximum marginal individual income tax rate for each year in which payments or benefits the foregoing shall be realized by paid to Executive (based upon on the rate in effect for such year as set forth in the Code as in effect at the time of the first receipt or realization payment of the foregoing), less (iviii) the amount of excise taxes imposed with respect to the payments or and benefits described in (i) and (ii) above by Section 4999 of the Code Code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable to the Company, provided, that the Accounting Firm's determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive's best interest to waive the receipt of any corresponding or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in her sole and applicable state law provisionabsolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $5,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. Notwithstanding any provision anything to the contrary in this Agreement to the contraryAgreement, if all or any portion of the Employee is a “disqualified individual” (as defined in Code Section 280G(c)), and the payments or and benefits received or realized by Executive either alone or provided for under this Agreement, together with any other payments or and benefits which Executive receives or realizes or is then entitled the Employee has the right to receive or realize from the Company or any of its affiliates affiliates, would constitute a "“parachute payment" within ” (as defined in Code Section 280G(b)(2)), then the meaning payments and benefits provided for under this Agreement shall be either (a) reduced (but not below zero) so that the present value of such total amounts and benefits received by the Employee from the Company and its affiliates will be one dollar ($1.00) less than three times the Employee’s “base amount” (as defined in Code Section 280G of the Internal Revenue Code of 1986, as amended (or any successor section280G(b)(3)) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments amounts and benefits received by the Employee shall be subject to the excise tax imposed by Code Section 4999 of or (b) paid in full, whichever produces the better net after-tax position to the Employee (taking into account any applicable excise tax under Code Section 4999 and any corresponding and/or other applicable state law provision; providedtaxes). The reduction of payments and benefits hereunder, howeverif applicable, that such reduction shall only be made ifby reducing, by reason of such reductionfirst, Executive's net after tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this Section 14, "net after tax benefit" shall mean the sum of (i) the total amount received or realized by Executive pursuant to this Agreement that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits to be paid in cash hereunder in the order in which Executive receives such payment or realizes benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is then entitled necessary shall be made by a nationally recognized accounting firm mutually agreed to receive by the Company and the Employee. If a reduced payment or realize benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company and any of (or its affiliates that would constitute affiliates) used in determining if a "parachute payment" within payment exists, exceeds one dollar ($1.00) less than three times the meaning of Section 280G of Employee’s base amount, then the Code and any corresponding and applicable state law provision, less (iii) the amount of federal or state income taxes payable with respect Employee shall immediately repay such excess to the payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits shall be realized by Executive (based Company upon the rate in effect for such year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by Section 4999 of the Code and any corresponding and applicable state law provisionnotification that an overpayment has been made.

Code Section 280G. Notwithstanding any provision in of this Agreement to ----------------- the contrary, if all or any portion of the payments or benefits received or realized by Executive pursuant to this Agreement either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates would constitute a "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (or any successor section) and the regulations promulgated thereunder (the "Code") and/or any corresponding and ---- applicable state law provision, such payments or benefits provided to Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, provided that such reduction shall only be made if, by reason of such -------- ---- reduction, Executive's net after tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this Section 14paragraph, "net --- after tax benefit" shall mean the sum of (i) the total amount received or ----------------- realized by Executive pursuant to this Agreement that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision provision, plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iii) the amount of federal or state income taxes payable with respect to the payments or benefits described in (i) and (ii) above calculated at the maximum marginal margin individual income tax rate for each year in which payments or benefits shall be realized by Executive (based upon the rate in effect for such year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by Section 4999 of the Code and any corresponding and applicable state law provision.. * * * * *

Code Section 280G. Notwithstanding any provision in this Agreement to the contrary, if all or any portion of the payments or benefits received or realized by Executive either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates would constitute a "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (or any successor sectiona) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive shall bear all expense of, and be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments shall be subject to the solely responsible for, any excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision(such excise tax being the “Excise Tax”) to the extent applicable; provided, however, that such reduction shall only any payment or benefit received or to be made if, received by reason of such reduction, Executive's net after tax benefit shall exceed Executive (whether payable under the net after tax benefit if such reduction were not made. For purposes terms of this Section 14Agreement or any other plan, "net after tax benefit" shall mean arrangement or agreement with either Employer or Employer Group (collectively, the sum of (i“Payments”) the total amount received or realized by Executive pursuant to this Agreement that would constitute a "“parachute payment" ” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (iito the extent applicable), shall be reduced to the extent necessary so that no portion thereof shall be subject to the Excise Tax, but only if, by reason of such reduction, the “net after‑tax benefit” received by Executive shall exceed the “net after-tax benefit” that would be received by Executive if no such reduction was made. (b) all other payments or benefits The “net after-tax benefit” shall mean (i) the Payments which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "“parachute payment" payments” within the meaning of Section 280G of the Code and any corresponding and applicable state law provisionCode, less (iiiii) the amount of federal or all federal, state and local income and employment taxes payable by Executive with respect to the payments or benefits described in (i) and (ii) above foregoing calculated at the maximum highest marginal individual income tax rate for each year in which payments or benefits the foregoing shall be realized by paid to Executive (based upon on the rate in effect for such year as set forth in the Code as in effect at the time of the first receipt or realization payment of the foregoing), less (iviii) the amount of excise taxes Excise Tax imposed with respect to the payments or and benefits described in clause (b)(i) above. (c) All determinations under this Paragraph 18 will be made by an actuarial firm, accounting firm, law firm, or consulting firm experienced and generally recognized in 280G matters (the “280G Firm”) that is chosen by MVB prior to a change in ownership or control of a corporation (within the meaning of Treasury regulations under Section 280G of the Code). The 280G Firm shall be required to evaluate the applicability of Section 280G to this case and the extent to which payments are exempt from Section 280G as reasonable compensation for services rendered before or after the Change in Control. All fees and expenses of the 280G Firm shall be paid solely by MVB or its successor. MVB will direct the 280G Firm to submit any determination it makes under this Paragraph 18 and detailed supporting calculations to both Executive and MVB as soon as reasonably practicable. (d) If the 280G Firm determines that one or more reductions are required under this Paragraph 18, such Payments shall be reduced in the order that would provide Executive with the largest amount of after-tax proceeds (with such order, to the extent permitted by Section 280G of the Code and Code Section 409A, designated by Executive, or otherwise determined by the 280G Firm) to the extent necessary so that no portion thereof shall be subject to the Excise Tax, and MVB shall pay such reduced amount to Executive. Executive shall at any time have the unilateral right to elect to forfeit any equity award in whole or in part. (e) As a result of the uncertainty in the application of Section 280G of the Code at the time that the 280G Firm makes its determinations under this Paragraph 18, it is possible that amounts will have been paid or distributed to Executive that should not have been paid or distributed (collectively, the “Overpayments”), or that additional amounts should be paid or distributed to Executive (collectively, the “Underpayments”). If the 280G Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against MVB or Executive, which assertion the 280G Firm believes has a high probability of success or is otherwise based on controlling precedent or substantial authority, that an Overpayment has been made, Executive must repay the Overpayment to MVB, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by Executive to MVB unless, and then only to the extent that, the deemed loan and payment would either (i) and (ii) above by reduce the amount on which Executive is subject to Excise Tax under Section 4999 of the Code or (ii) generate a refund of Excise Tax imposed under Section 4999 of the Code. If the 280G Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the 280G Firm will notify Executive and MVB of that determination, and MVB will promptly pay the amount of that Underpayment to Executive without interest. (f) The parties will provide the 280G Firm access to and copies of any corresponding books, records, and applicable state law provisiondocuments in their possession as reasonably requested by the 280G Firm, and otherwise cooperate with the 280G Firm, in connection with the preparation and issuance of the determinations and calculations contemplated by this Paragraph 18. For purposes of making the calculations required by this Paragraph 18, the 280G Firm may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code.

Code Section 280G. Notwithstanding any provision in of this Agreement to the contrary, if all or any portion of the payments or benefits received or realized by Executive an 2006 Employee Investor pursuant to this Agreement either alone or together with other payments or benefits which Executive 2006 Employee Investor receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates would constitute a "an “excess parachute payment" ” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (or any successor section) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive 2006 Employee Investor shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement 2006 Employee Investor to the extent necessary so that no portion of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, provided that such reduction shall only be made if, by reason of such reduction, Executive's 2006 Employee Investor’s net after tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this Section 14paragraph, "“net after tax benefit" ” shall mean the sum of (i) the total amount received or realized by Executive 2006 Employee Investor pursuant to this Agreement that would constitute a "“parachute payment" ” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision provision, plus (ii) all other payments or benefits which Executive 2006 Employee Investor receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "“parachute payment" ” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iii) the amount of federal or state income taxes payable with respect to the payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits shall be realized by Executive 2006 Employee Investor (based upon the rate in effect for such year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by Section 4999 of the Code and any corresponding and applicable state law provision. Notwithstanding any other agreements or arrangements to the contrary, this Section 13 sets forth the 2006 Employee Investors’ sole and exclusive rights with regard to the Company and its Subsidiaries relating to the potential tax treatment under Section 280G and Section 4999 of the Code and any corresponding state law provisions of any payments or benefits realized by an 2006 Employee Investor under this Agreement.

Code Section 280G. Notwithstanding any provision in of this Agreement to the contrary, if all or any portion of the payments or benefits received or realized by Executive pursuant to this Agreement either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates would constitute a an "parachute paymentEXCESS PARACHUTE PAYMENT" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (or any successor section) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, provided that such reduction shall only be made if, by reason of such reduction, Executive's net after tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this Section 14paragraph, "net after tax benefitNET AFTER TAX BENEFIT" shall mean the sum of (i) the total amount received or realized by Executive pursuant to this Agreement that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision provision, plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iii) the amount of federal or state income taxes payable with respect to the payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits shall be realized by Executive (based upon the rate in effect for such year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by Section 4999 of the Code and any corresponding and applicable state law provision.

Code Section 280G. Notwithstanding any provision in of this Agreement to the contrary, if all or any portion of the payments or benefits received or realized by any Executive pursuant to this Agreement either alone or together with other payments or benefits which such Executive receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates would constitute a an "excess parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (or any successor section) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to such Executive shall be reduced by reducing the amount of payments or benefits payable to such Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, provided that such reduction shall only be made if, by reason of such reduction, such Executive's net after tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this Section 14paragraph, "net after tax benefit" shall mean the sum of (i) the total amount received or realized by such Executive pursuant to this Agreement that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision provision, plus (ii) all other payments or benefits which such Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iii) the amount of federal or state income taxes payable with respect to the payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits shall be realized by such Executive (based upon the rate in effect for such year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by Section 4999 of the Code and any corresponding and applicable state law provision.

Code Section 280G. Notwithstanding If any provision payment or benefit received or to be received by Executive in connection with a "change in ownership or control" of the Company (within the meaning of Section 280G of the Code), whether payable pursuant to the terms of this Agreement to the contrary, if all or any portion of the payments other plan, arrangement or benefits received or realized by Executive either alone or together agreement with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company or any an affiliate of its affiliates the Company (the "PAYMENTS"), would constitute a "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (or any successor section) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive Payments shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments thereof shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall but only be made if, by reason of such reduction, Executive's the net after after-tax benefit to Executive shall exceed the net after after-tax benefit to Executive if no such reduction were not was made. For purposes of this Section 14SECTION 12, "net after after-tax benefit" shall mean the sum of (i) the total amount received of all payments and the value of all benefits which Executive receives or realized by Executive pursuant is then entitled to this Agreement receive from the Company that would constitute a "parachute paymentpayments" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provisionCode, less (iiiii) the amount of federal or all federal, state and local income taxes payable with respect to the payments or benefits described in (i) and (ii) above foregoing calculated at the maximum marginal individual income tax rate for each year in which payments or benefits the foregoing shall be realized by paid to Executive (based upon on the rate in effect for such year as set forth in the Code as in effect at the time of the first receipt or realization payment of the foregoing), less (iviii) the amount of excise taxes imposed with respect to the payments or and benefits described in (i) and (ii) above by Section 4999 of the Code Code. The foregoing determination will be made by a nationally recognized accounting firm (the "ACCOUNTING FIRM") selected by Executive and reasonably acceptable to the Company, PROVIDED, that the Accounting Firm's determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive's best interest to waive the receipt of any corresponding or all amounts which may constitute "excess parachute payments." If the Accounting Firm determines that such reduction is required by this SECTION 12, Executive, in his sole and applicable state law provisionabsolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this SECTION 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this SECTION 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. Notwithstanding any provision in this Agreement to the contrary, if all or any portion of the payments or benefits received or realized by Executive either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates would constitute a "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (or any successor section) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 11 of this Agreement to the extent necessary so that no portion of such payments shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall only be made if, by reason of such reduction, Executive's net after tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this Section 1416, "net after tax benefit" shall mean the sum of (i) the total amount received or realized by Executive pursuant to this Agreement that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iii) the amount of federal or state income taxes payable with respect to the payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits shall be realized by Executive (based upon the rate in effect for such year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by Section 4999 of the Code and any corresponding and applicable state law provision.

Code Section 280G. Notwithstanding any provision in of this Agreement to the contrary, if all or any portion of the payments or benefits received or realized by Executive an Employee Investor pursuant to this Agreement either alone or together with other payments or benefits which Executive Employee Investor receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates would constitute a an "parachute paymentEXCESS PARACHUTE PAYMENT" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (or any successor section) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive Employee Investor shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement Employee Investor to the extent necessary so that no portion of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, provided that such reduction shall only be made if, by reason of such reduction, ExecutiveEmployee Investor's net after tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this Section 14paragraph, "net after tax benefitNET AFTER TAX BENEFIT" shall mean the sum of of (i) the total amount received or realized by Executive Employee Investor pursuant to this Agreement that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision provision, plus (ii) all other payments or benefits which Executive Employee Investor receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iii) the amount of federal or state income taxes payable with respect to the payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits shall be realized by Executive Employee Investor (based upon the rate in effect for such year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by Section 4999 of the Code and any corresponding and applicable state law provision. Notwithstanding any other agreements or arrangements to the contrary (including without limitation those entered into in connection with the 2004 Retention Plan), this SECTION 13 sets forth the Employee Investors' sole and exclusive rights with regard to the Company and its Subsidiaries relating to the potential tax treatment under Section 280G and Section 4999 of the Code and any corresponding state law provisions of any payments or benefits realized by an Employee Investor under this Agreement. [ALTERNATIVE PROVISION FOR EMPLOYEE INVESTORS WHO HAVE A SEVERANCE AGREEMENT WITH A GROSS UP PROVISION: If all or any portion of the payments or benefits received or realized by an Employee Investor pursuant to this Agreement (including any acceleration of vesting benefits) would constitute an "excess parachute payment" within the meaning of Section 280G of the Code and/or any corresponding and applicable state law provision, then, notwithstanding the provisions of employment agreement, change in control severance agreement or any other agreement of such Employee Investor (a "SEVERANCE AGREEMENT"), such payments and benefits payable to the Employee Investor hereunder (including any acceleration of vesting benefits) shall not be subject to the provisions of such Severance Agreement which require the Company to "gross-up" the Employee Investor to the extent necessary to put the Employee Investor in the same after tax position which he would have been in had no excise tax been imposed on payments to the Employee Investor pursuant to Section 4999 of the Code and any corresponding and/or applicable state law provision. For purposes of determining the application of the preceding sentence, the amount of any excess parachute payment that is attributable to this Agreement shall bear the same proportion to the total amount of excess parachute payments received by the Executive as the amount of "parachute payments" (within the meaning of Section 280G of the Code) received pursuant to this Agreement bears to the total amount of parachute payments received by the Employee Investor. The parties hereto acknowledge that, except as set forth in above, the provisions of this Section 10 shall not be construed to limit the Employee Investor's rights with respect to his Severance Agreement.]

Code Section 280G. Notwithstanding any provision in of this Agreement to the contrary, if all or any portion of the payments or benefits received or realized by Executive the 2008 Employee Investor pursuant to this Agreement either alone or together with other payments or benefits which Executive 2008 Employee Investor receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates would constitute a "an “excess parachute payment" ” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (or any successor section) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive 2008 Employee Investor shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement 2008 Employee Investor to the extent necessary so that no portion of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, provided that such reduction shall only be made if, by reason of such reduction, Executive's 2008 Employee Investor’s net after tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this Section 14paragraph, "“net after tax benefit" ” shall mean the sum of (i) the total amount received or realized by Executive 2008 Employee Investor pursuant to this Agreement that would constitute a "“parachute payment" ” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision provision, plus (ii) all other payments or benefits which Executive 2008 Employee Investor receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "“parachute payment" ” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iii) the amount of federal or state income taxes payable with respect to the payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits shall be realized by Executive 2008 Employee Investor (based upon the rate in effect for such year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by Section 4999 of the Code and any corresponding and applicable state law provision. Notwithstanding any other agreements or arrangements to the contrary, this Section 13 sets forth the 2008 Employee Investor’s sole and exclusive rights with regard to the Company and its Subsidiaries relating to the potential tax treatment under Section 280G and Section 4999 of the Code and any corresponding state law provisions of any payments or benefits realized by the 2008 Employee Investor under this Agreement.

Code Section 280G. Notwithstanding (a) In the event it shall be determined that any provision payment or distribution to you or for your benefit which is in this Agreement to the contrary, if all nature of compensation and is contingent on a change in the ownership or any effective control of the Company or the ownership of a substantial portion of the payments or benefits received or realized by Executive either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from assets of the Company or any of its affiliates would constitute a "parachute payment" (within the meaning of Section 280G 280G(b)(2) of the Internal Revenue Code), whether paid or payable pursuant to this Agreement or otherwise (a “Payment”), would constitute a “parachute payment” under Section 280G(b)(2) of the Code and would be subject to the excise tax imposed by Section 4999 of 1986the Code (together with any interest or penalties imposed with respect to such excise tax, as amended (or any successor section) and the regulations promulgated thereunder (“Excise Tax”), then the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive Payments shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments thereof shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall but only be made if, by reason of such reduction, Executive's the net after after-tax benefit received by you shall exceed the net after after-tax benefit received by you if no such reduction were not was made. For purposes of this Section 149(a), "“net after after-tax benefit" ” shall mean the sum of (i) the total amount received Payments which you receive or realized by Executive pursuant are then entitled to this Agreement receive from the Company that would constitute a "“parachute payment" payments” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provisionCode, less (iiiii) the amount of federal or all federal, state and local income taxes payable with respect to the payments or benefits described in (i) and (ii) above Payments calculated at the maximum marginal individual income tax rate for each year in which payments or benefits the Payments shall be realized by Executive paid to you (based upon on the rate in effect for such year as set forth in the Code as in effect at the time of the first receipt or realization payment of the foregoing), less (iviii) the amount of excise taxes Excise Taxes imposed with respect to the payments or benefits described in Payments. (ib) and (ii) above All determinations required to be made under this Section 9 shall be made by Section 4999 such nationally recognized accounting firm as may be selected by the Audit Committee of the Code Board as constituted immediately prior to the above change in control (the “Accounting Firm”), provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination, together with detailed supporting calculations and documentation, to you and the Company within 15 business days following the date of termination of your employment, if applicable, or such other time as requested by you (provided that you reasonably believe that any corresponding of the Payments may be subject to the Excise Tax) or the Company. All fees and applicable state law provisionexpenses of the Accounting Firm shall be borne solely by the Company.

Code Section 280G. Notwithstanding (a) In the event it shall be determined that any provision payment or distribution to you or for your benefit which is in this Agreement to the contrary, if all nature of compensation and is contingent on a change in the ownership or any effective control of the Company or the ownership of a substantial portion of the payments or benefits received or realized by Executive either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from assets of the Company or any of its affiliates would constitute a "parachute payment" (within the meaning of Section 280G 280G(b)(2) of the Internal Revenue Code), whether paid or payable pursuant to this letter or otherwise (a “Payment”), would constitute a “parachute payment” under Section 280G(b)(2) of the Code and would be subject to the excise tax imposed by Section 4999 of 1986the Code (together with any interest or penalties imposed with respect to such excise tax, as amended (or any successor section) and the regulations promulgated thereunder (“Excise Tax”), then the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive Payments shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments thereof shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall but only be made if, by reason of such reduction, Executive's the net after after-tax benefit received by you shall exceed the net after after-tax benefit received by you if no such reduction were not was made. For purposes of this Section 149(a), "“net after after-tax benefit" ” shall mean the sum of (i) the total amount received Payments which you receive or realized by Executive pursuant are then entitled to this Agreement receive from the Company that would constitute a "“parachute payment" payments” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provisionCode, less (iiiii) the amount of federal or all federal, state and local income taxes payable with respect to the payments or benefits described in (i) and (ii) above Payments calculated at the maximum marginal individual income tax rate for each year in which payments or benefits the Payments shall be realized by Executive paid to you (based upon on the rate in effect for such year as set forth in the Code as in effect at the time of the first receipt or realization payment of the foregoing), less (iviii) the amount of excise taxes Excise Taxes imposed with respect to the payments or benefits described in Payments. (ib) and (ii) above All determinations required to be made under this Section 9 shall be made by Section 4999 such nationally recognized accounting firm as may be selected by the Audit Committee of the Code Board of Directors of the Company as constituted immediately prior to the change in control transaction (the “Accounting Firm”), provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination, together with detailed supporting calculations and documentation, to you and the Company within 15 business days following the date of termination of your employment, if applicable, or such other time as requested by you (provided that you reasonably believe that any corresponding of the Payments may be subject to the Excise Tax) or the Company. All fees and applicable state law provisionexpenses of the Accounting Firm shall be borne solely by the Company.

Code Section 280G. Notwithstanding (a) In the event it shall be determined that any provision payment or distribution to you or for your benefit which is in this Agreement to the contrary, if all nature of compensation and is contingent on a change in the ownership or any effective control of the Company or the ownership of a substantial portion of the payments or benefits received or realized by Executive either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from assets of the Company or any of its affiliates would constitute a "parachute payment" (within the meaning of Section 280G 280G(b)(2) of the Internal Revenue Code), whether paid or payable pursuant to this letter or otherwise (a “Payment”), would constitute a “parachute payment” under Section 280G(b)(2) of the Code and would be subject to the excise tax imposed by Section 4999 of 1986the Code (together with any interest or penalties imposed with respect to such excise tax, as amended (or any successor section) and the regulations promulgated thereunder (“Excise Tax”), then the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive Payments shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments thereof shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall but only be made if, by reason of such reduction, Executive's the net after after-tax benefit received by you shall exceed the net after after-tax benefit received by you if no such reduction were not was made. For purposes of this Section 1410(a), "“net after after-tax benefit" ” shall mean the sum of (i) the total amount received Payments which you receive or realized by Executive pursuant are then entitled to this Agreement receive from the Company that would constitute a "“parachute payment" payments” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provisionCode, less (iiiii) the amount of federal or all federal, state and local income taxes payable with respect to the payments or benefits described in (i) and (ii) above Payments calculated at the maximum marginal individual income tax rate for each year in which payments or benefits the Payments shall be realized by Executive paid to you (based upon on the rate in effect for such year as set forth in the Code as in effect at the time of the first receipt or realization payment of the foregoing), less (iviii) the amount of excise taxes Excise Taxes imposed with respect to the payments or benefits described in Payments. (ib) and (ii) above All determinations required to be made under this Section 10 shall be made by Section 4999 such nationally recognized accounting firm as may be selected by the Audit Committee of the Code Board of Directors of the Company as constituted immediately prior to the change in control transaction (the “Accounting Firm”), provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination, together with detailed supporting calculations and documentation, to you and the Company within 15 business days following the date of termination of your employment, if applicable, or such other time as requested by you (provided that you reasonably believe that any corresponding of the Payments may be subject to the Excise Tax) or the Company. All fees and applicable state law provisionexpenses of the Accounting Firm shall be borne solely by the Company.

Code Section 280G. Notwithstanding any provision in of this Agreement to ----------------- the contrary, if all or any portion of the payments or benefits received or realized by Executive pursuant to this Agreement either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates would constitute a "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (or any successor section) and the regulations promulgated thereunder (the "Code") and/or any corresponding and ---- applicable state law provision, such payments or benefits provided to Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, provided that such reduction shall only be made if, by reason of such -------- ---- reduction, Executive's net after tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this Section 14paragraph, "net --- after tax benefit" shall mean the sum of (i) the total amount received or ----------------- realized by Executive pursuant to this Agreement that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision provision, plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iii) the amount of federal or state income taxes payable with respect to the payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits shall be realized by Executive (based upon the rate in effect for such year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by Section 4999 of the Code and any corresponding and applicable state law provision.. * * * * *

Code Section 280G. Notwithstanding any provision in of this Agreement to the contrary, if all or any portion of the payments or benefits received or realized by Executive pursuant to this Agreement either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates would constitute a "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (or any successor section) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, provided that such reduction shall only be made if, by reason of such reduction, Executive's net after tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this Section 14paragraph, "net after tax benefit" shall mean the sum of (ia) the total amount received or realized by Executive pursuant to this Agreement that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision provision, plus (iib) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iiic) the amount of federal or state income taxes payable with respect to the payments or benefits described in (ia) and (iib) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits shall be realized by Executive (based upon the rate in effect for such year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (ivd) the amount of excise taxes imposed with respect to the payments or benefits described in (ia) and (iib) above by Section 4999 of the Code and any corresponding and applicable state law provision.

Code Section 280G. Notwithstanding any provision in of this Agreement to the contrary, if all or any portion of the payments or benefits received or realized by Executive an 2006 Director Investor pursuant to this Agreement either alone or together with other payments or benefits which Executive 2006 Director Investor receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates would constitute a "an “excess parachute payment" ” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (or any successor section) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive 2006 Director Investor shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement 2006 Director Investor to the extent necessary so that no portion of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, provided that such reduction shall only be made if, by reason of such reduction, Executive's 2006 Director Investor’s net after tax benefit shall exceed the net after tax benefit if such reduction were not made. For purposes of this Section 14paragraph, "“net after tax benefit" ” shall mean the sum of (i) the total amount received or realized by Executive 2006 Director Investor pursuant to this Agreement that would constitute a "“parachute payment" ” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision provision, plus (ii) all other payments or benefits which Executive 2006 Director Investor receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "“parachute payment" ” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iii) the amount of federal or state income taxes payable with respect to the payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits shall be realized by Executive 2006 Director Investor (based upon the rate in effect for such year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by Section 4999 of the Code and any corresponding and applicable state law provision. Notwithstanding any other agreements or arrangements to the contrary, this Section 13 sets forth the 2006 Director Investors’ sole and exclusive rights with regard to the Company and its Subsidiaries relating to the potential tax treatment under Section 280G and Section 4999 of the Code and any corresponding state law provisions of any payments or benefits realized by an 2006 Director Investor under this Agreement.

Code Section 280G. Notwithstanding (a) In the event it shall be determined that any provision payment or distribution to you or for your benefit which is in this Agreement to the contrary, if all nature of compensation and is contingent on a change in the ownership or any effective control of the Company or the ownership of a substantial portion of the payments or benefits received or realized by Executive either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from assets of the Company (within the meaning of Section 280G(b)(2) of the Code), whether paid or any of its affiliates payable pursuant to this letter or otherwise (a "Payment"), would constitute a "parachute payment" within the meaning of under Section 280G 280G(b)(2) of the Internal Revenue Code and would be subject to the excise tax imposed by Section 4999 of 1986the Code (together with any interest or penalties imposed with respect to such excise tax, as amended (or any successor section) and the regulations promulgated thereunder (the "CodeExcise Tax") and/or any corresponding and applicable state law provision), such payments or benefits provided to Executive then the Payments shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments thereof shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall but only be made if, by reason of such reduction, Executive's the net after after-tax benefit received by you shall exceed the net after after-tax benefit received by you if no such reduction were not was made. For purposes of this Section 148(a), "net after after-tax benefit" shall mean the sum of (i) the total amount received Payments which you receive or realized by Executive pursuant are then entitled to this Agreement receive from the Company that would constitute a "parachute paymentpayments" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provisionCode, less (iiiii) the amount of federal or all federal, state and local income taxes payable with respect to the payments or benefits described in (i) and (ii) above Payments calculated at the maximum marginal individual income tax rate for each year in which payments or benefits the Payments shall be realized by Executive paid to you (based upon on the rate in effect for such year as set forth in the Code as in effect at the time of the first receipt or realization payment of the foregoing), less (iviii) the amount of excise taxes Excise Taxes imposed with respect to the payments or benefits described in Payments. (ib) and (ii) above All determinations required to be made under this Section 8 shall be made by Section 4999 such nationally recognized accounting firm as may be selected by the Audit Committee of the Code Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm's determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination, together with detailed supporting calculations and documentation, to you and the Company within 15 business days following the date of termination of your employment, if applicable, or such other time as requested by you (provided that you reasonably believe that any corresponding of the Payments may be subject to the Excise Tax) or the Company. All fees and applicable state law provisionexpenses of the Accounting Firm shall be borne solely by the Company.

Code Section 280G. Notwithstanding (a) In the event it shall be determined that any provision payment or distribution to you or for your benefit which is in this Agreement to the contrary, if all nature of compensation and is contingent on a change in the ownership or any effective control of the Company or the ownership of a substantial portion of the payments or benefits received or realized by Executive either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from assets of the Company or any of its affiliates would constitute a "parachute payment" (within the meaning of Section 280G 280G(b)(2) of the Internal Revenue Code), whether paid or payable pursuant to this letter or otherwise (a “Payment”), would constitute a “parachute payment” under Section 280G(b)(2) of the Code and would be subject to the excise tax imposed by Section 4999 of 1986the Code (together with any interest or penalties imposed with respect to such excise tax, as amended (or any successor section) and the regulations promulgated thereunder (“Excise Tax”), then the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive Payments shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments thereof shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall but only be made if, by reason of such reduction, Executive's the net after after-tax benefit received by you shall exceed the net after after-tax benefit received by you if no such reduction were not was made. The specific Payments that shall be reduced and the order of such reduction shall be determined so as to achieve the most favorable economic benefit to you, and to the extent economically equivalent, the Payments shall be reduced pro rata, all as determined by the Company in its sole discretion. For purposes of this Section 148(a), "“net after after-tax benefit" ” shall mean the sum of (i) the total amount received Payments which you receive or realized by Executive pursuant are then entitled to this Agreement receive from the Company that would constitute a "“parachute payment" payments” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provisionCode, less (iiiii) the amount of federal or all federal, state and local income taxes payable with respect to the payments or benefits described in (i) and (ii) above Payments calculated at the maximum marginal individual income tax rate for each year in which payments or benefits the Payments shall be realized by Executive paid to you (based upon on the rate in effect for such year as set forth in the Code as in effect at the time of the first receipt or realization payment of the foregoing), less (iviii) the amount of excise taxes Excise Taxes imposed with respect to the payments or benefits described in Payments. (ib) and (ii) above All determinations required to be made under this Section 8 shall be made by Section 4999 such nationally recognized accounting firm as may be selected by the Audit Committee of the Code Board as constituted immediately prior to the change in control transaction (the “Accounting Firm”), provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination, together with detailed supporting calculations and documentation, to you and the Company within 15 business days following the date of termination of your employment, if applicable, or such other time as requested by you (provided that you reasonably believe that any corresponding of the Payments may be subject to the Excise Tax) or the Company. All fees and applicable state law provisionexpenses of the Accounting Firm shall be borne solely by the Company.

Code Section 280G. Notwithstanding If any provision payment or benefit received or to be received by Executive in this Agreement to the contrary, if all connection with a “change in ownership or any portion control” of the payments or benefits received or realized by Executive either alone or together with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates would constitute a "parachute payment" (within the meaning of Section 280G of the Internal Revenue Code Code), whether payable pursuant to the terms of 1986, as amended (this Agreement or any successor section) and other plan, arrangement or agreement with the regulations promulgated thereunder Company or an affiliate of the Company (the "“Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive the Payments shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments thereof shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall but only be made if, by reason of such reduction, Executive's the net after after-tax benefit to Executive shall exceed the net after after-tax benefit to Executive if no such reduction were not was made. For purposes of this Section 1412, "“net after after-tax benefit" ” shall mean the sum of (i) the total amount received of all payments and the value of all benefits which Executive receives or realized by Executive pursuant is then entitled to this Agreement receive from the Company that would constitute a "“parachute payment" payments” within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provisionCode, less (iiiii) the amount of federal or all federal, state and local income taxes payable with respect to the payments or benefits described in (i) and (ii) above foregoing calculated at the maximum marginal individual income tax rate for each year in which payments or benefits the foregoing shall be realized by paid to Executive (based upon on the rate in effect for such year as set forth in the Code as in effect at the time of the first receipt or realization payment of the foregoing), less (iviii) the amount of excise taxes imposed with respect to the payments or and benefits described in (i) and (ii) above by Section 4999 of the Code code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable to the Company, provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any corresponding or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in her sole and applicable state law provisionabsolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $10,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. Notwithstanding If any provision payment or benefit received or to be received by Executive in connection with a "change in ownership or control" of the Company (within the meaning of Section 280G of the Code), whether payable pursuant to the terms of this Agreement to the contrary, if all or any portion of the payments other plan, arrangement or benefits received or realized by Executive either alone or together agreement with other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company or any an affiliate of its affiliates the Company (the "Payments"), would constitute a "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (or any successor section) and the regulations promulgated thereunder (the "Code") and/or any corresponding and applicable state law provision, such payments or benefits provided to Executive Payments shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to Section 9 of this Agreement to the extent necessary so that no portion of such payments thereof shall be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision; provided, however, that such reduction shall but only be made if, by reason of such reduction, Executive's the net after after-tax benefit to Executive shall exceed the net after after-tax benefit to Executive if no such reduction were not was made. For purposes of this Section 1412, "net after after-tax benefit" shall mean the sum of (i) the total amount received of all payments and the value of all benefits which Executive receives or realized by Executive pursuant is then entitled to this Agreement receive from the Company that would constitute a "parachute paymentpayments" within the meaning of Section 280G of the Code and any corresponding and applicable state law provision plus (ii) all other payments or benefits which Executive receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a "parachute payment" within the meaning of Section 280G of the Code and any corresponding and applicable state law provisionCode, less (iiiii) the amount of federal or all federal, state and local income taxes payable with respect to the payments or benefits described in (i) and (ii) above foregoing calculated at the maximum marginal individual income tax rate for each year in which payments or benefits the foregoing shall be realized by paid to Executive (based upon on the rate in effect for such year as set forth in the Code as in effect at the time of the first receipt or realization payment of the foregoing), less (iviii) the amount of excise taxes imposed with respect to the payments or and benefits described in (i) and (ii) above by Section 4999 of the Code Code. The foregoing determination will be made by a nationally recognized accounting firm (the "Accounting Firm") selected by Executive and reasonably acceptable to the Company, provided, that the Accounting Firm's determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive and the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which Executive would be entitled to receive a Payment (or as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Payment) in order that Executive may determine whether it is in Executive's best interest to waive the receipt of any corresponding or all amounts which may constitute "excess parachute payments." If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and applicable state law provisionabsolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code, and the Company shall pay such reduced amount to Executive. Executive and the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12. The first $5,000 of fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.