Common use of Code Section 280G Clause in Contracts

Code Section 280G. If any 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 or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, 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 but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the 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 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 absolute 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. If Notwithstanding any payment provision in this Agreement to the contrary, if all or benefit any portion of the payments or benefits received or to be received realized by Executive in connection either alone or together with a “change in ownership other payments or control” of 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, whether such payments or benefits provided to Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to the terms Section 9 of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Payments shall be reduced to the extent necessary so that no portion thereof of such payments shall be subject to the excise tax imposed by Section 4999 of the Code but and any corresponding and/or applicable state law provision; provided, however, that such reduction shall only be made if, by reason of such reduction, the Executive's net after-after tax benefit to Executive shall exceed the net after-after tax benefit to Executive if no such reduction was were not made. For purposes of this Section 1214, “"net after-after tax benefit” " shall mean the sum of (i) the total of all payments and the value of all benefits which amount received or realized by Executive receives or is then entitled pursuant to receive from the Company this Agreement that would constitute “a "parachute payments” payment" within the meaning of Section 280G of the CodeCode 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 (iiiii) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which the foregoing payments or benefits shall be paid to realized by Executive (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiiiv) the amount of excise taxes imposed with respect to the payments and or benefits described in (i) and (ii) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive Code 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 any corresponding 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 or all amounts which may constitute “excess parachute paymentsapplicable state law provision.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute 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. If (i) Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the 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 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 the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section section 280G of the Code, then, to the extent necessary to make such portion of the 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 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 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 the Company's accounting firm which (or, in the case of a payment following a Change in Control the accounting firm that was, immediately prior to the Change in Control, the Company's independent auditor) (the "Auditor"), does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (C) the Severance Payments shall be reduced only to the extent necessary so that no portion thereof shall be subject the Total Payments (other than those referred to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean in clause (iA) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would (B)) in their entirety constitute “parachute payments” 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, less in the opinion of Tax Counsel, and (iiD) the amount value of all federal, state and local income taxes payable with respect to any noncash benefit or any deferred payment or benefit included in the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing Total Payments shall be paid to Executive determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii4) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the 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 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 absolute 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. If any payment or benefit received or 6.1 Notwithstanding anything in this Agreement to be received by Executive in connection with the contrary, if Employee is a “change disqualified individual” (as defined in ownership or control” Section 280G(c) of the Company Internal Revenue Code of 1986, as amended (within the meaning of Section 280G of the “Code”)), whether payable pursuant and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Employee has the right to the terms of this Agreement receive from Employer or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”)person, would constitute a “parachute payment” within the meaning of (as defined in Section 280G 280G(b)(2) of the Code), then the Payments payments and benefits provided for in this Agreement shall be either (a) reduced to (but not below zero) so that the extent necessary 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 so that no portion thereof of such amounts and benefits received by Employee shall be subject to the excise tax imposed by Section 4999 of the Code but only ifor (b) paid in full, by reason of such reduction, whichever produces the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, better “net after-tax benefitposition” shall mean to Employee (i) taking into account any applicable excise tax under Section 4999 of the total Code and any other applicable taxes). The reduction of all payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the value of all benefits order in which Executive receives such payment or is then entitled to receive from the Company benefit would be paid or provided (beginning with such payment or benefit that would constitute 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 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 payments” within the meaning of payment under Section 280G of the Code, less (ii) the amount 280G Firm will retain the services of all federalan independent valuation expert. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, state and local income taxes payable when aggregated with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the other payments and benefits described in (i) above by Section 4999 of the 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 from Employer (or as soon as practicable its affiliates) used in the event that the Accounting Firm has determining if a “parachute payment” exists, exceeds $1.00 less than 15 business days advance notice that Executive may receive a Paymentthree (3) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any 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 absolute 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.times Employee’s

Code Section 280G. If In the event that it is determined that any payment or distribution of any type to or for your benefit received or to be received made by Executive in connection with a “change in the Company, by any of its affiliates, by any person who acquires ownership or control” effective control or ownership of a substantial portion of the Company Company’s assets (within the meaning of Section 280G of the Code)Code or by any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company otherwise (the “Total Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, 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 but only ifor any interest or penalties with respect to such excise tax (such excise tax, by reason 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; 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, the net on an after-tax benefit to Executive basis, of (i) or (ii) above. If the Total Payments must be reduced as provided in the previous paragraph, the reduction shall exceed occur in the net following order: (1) reduction of cash payments for which the full amount is treated as a "parachute payment" (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 preceding sentence, awards shall be selected in a manner that maximizes the after-tax benefit aggregate amount of reduced Total Payments provided to Executive you, provided that if no such reduction was made. For purposes (and only if) necessary in order to avoid the imposition of this an additional tax under Section 12, “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G 409A of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing awards instead shall be paid 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 Executive (based 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 aggregate exercise price less applicable taxes. Also, if two or more equity awards are granted on the rate in effect for such year as set forth in the Code as in effect at the time same date, each award will be reduced on a pro-rata basis. All mathematical determinations and all determinations of whether any of the first payment of the foregoingTotal Payments are parachute payments that are required to be made under this Section 5(b), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the code. The foregoing determination will shall be made by a nationally recognized accounting independent audit firm selected by the Company (the “Accounting FirmAccountants”) selected by Executive and reasonably acceptable ), who shall provide their determination, together with detailed supporting calculations regarding the amount of any relevant matters, both to 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 capacity to the person or entity that is acquiring the Company, provided, that the Accounting Firm’s determination . Such determinations shall be made based upon “substantial authority” within by the meaning of Section 6662 Accountants using reasonable good faith interpretations of the Code. The Accounting Firm shall provide Executive As expressly permitted by Treasury Regulations section 1.280G-1 Q/A-32, with respect to performing any present value calculations that are required in connection with this Section 5(b), you and the Company with its each affirmatively elect to utilize the Applicable Federal Rates ("AFR") that are in effect as of the Effective Date and the Accountants shall therefore use such AFRs in their 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 or all amounts which may constitute “excess parachute payments.” calculations. If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute discretion, may Accountants 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 under Section 4999 of the CodeCode is payable with respect to a Total Payment, it shall furnish the Company and 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 such reduced amount to Executive. Executive the fees and costs of 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 Accountants which are incurred 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 Executive5(b).

Code Section 280G. If (a) In the event it shall be determined that any payment or distribution to you or for your benefit received or to be received by Executive which is in connection with the nature of compensation and is contingent on a “change in the ownership or control” effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G 280G(b)(2) of the Code), whether paid or payable pursuant to the terms of this Agreement letter agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company otherwise (the a “PaymentsPayment”), would constitute a “parachute payment” within the meaning of under Section 280G 280G(b)(2) of the CodeCode and would be subject to the excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the “Excise Tax”), then 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 but only if, by reason of such reduction, the net after-tax benefit to Executive received by you shall exceed the net after-tax benefit to Executive received by you if no such reduction 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 12section, “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits Payments which Executive receives you receive or is are then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing Payments calculated at the maximum marginal income tax rate for each year in which the foregoing Payments shall be paid to Executive you (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes Excise Taxes imposed with respect to the payments and benefits described in Payments. (ib) above by All determinations required to be made under this Section 4999 of the code. The foregoing determination will 12 shall be made by a such nationally recognized accounting firm as may be selected by the Audit Committee of the Board of the Company as constituted immediately prior to the change in control transaction (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 its determination, together with detailed supporting calculations and documentation, to you and the Company with its determinations and detailed supporting calculations with respect thereto at least within 15 business days prior to following the date on which Executive would be entitled to receive a Payment of termination of your employment, if applicable, or such other time as requested by you (or as soon as practicable in the event provided, that the Accounting Firm has less than 15 business days advance notice you reasonably believe 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 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 absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall may 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 Excise Tax) 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 All reasonable fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will reaching such a determination shall be borne exclusively solely by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. (a) If any payment or benefit received Employee would receive under this Agreement, when combined with any other payment or benefit Employee receives pursuant to be received by Executive in connection with a Change of Control (for purposes of this section, 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 or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “PaymentsPayment”), ) would constitute a “parachute payment” within the meaning of Code Section 280G of the Codeand, the Payments shall be reduced to the extent necessary so that no portion thereof shall but for this sentence, be subject to the excise tax imposed by Code Section 4999 of (the Code but only if“Excise Tax”), by reason of then such reduction, the net after-tax benefit to Executive Payment shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean be either: (i) the total full amount of all payments and the value of all benefits which Executive receives such Payment; or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) such lesser amount (a “Reduced Payment”) as would result in no portion of the amount Payment being subject to the Excise Tax, whichever of all the foregoing amounts, taking into account the applicable federal, state and local employment taxes, income taxes payable with and the Excise Tax, results in Employee’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or 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 foregoing calculated at Reduced Payment amount that would result in no portion of the maximum marginal income tax rate for each year in which Payment being subject to the foregoing Excise Tax, then the Payment shall be paid to Executive (based on the rate in effect for such year as set forth reduced or eliminated in the Code as in effect at the time of the first payment of the foregoing), less 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 (ii) applies, and the calculation of the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the code. The foregoing determination will Reduced Payment if applicable, shall be made performed by a nationally recognized certified public accounting firm as may be designated by the Company (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 to both the Company and Employee within fifteen (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 of the receipt of any notice from Employee that there has been a Payment, or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction earlier time as is required requested by this Section 12, Executive, in his sole and absolute 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 12a form that can be relied upon for tax filing purposes. The first $10,000 of All fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will shall be borne exclusively solely by the Company. (d) Employee may receive a Payment that is, in the aggregate, either more or less than the amount 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) in the balance event of any an Underpayment, the Company shall promptly pay an amount equal to the Underpayment to Employee, together with interest on such fees and expenses, if any shall be borne exclusively by Executiveamount at the applicable federal rate from the date such amount would have been paid to Employee had the provisions of Section 7(a)(ii) not been applied until the date of payment.

Code Section 280G. If (i) Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the 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 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 the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section section 280G of the Code, then, to the extent necessary to make such portion of the 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 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 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 the Company's accounting firm which (or, in the case of a payment following a Change in Control the accounting firm that was, immediately prior to the Change in Control, the Company's independent auditor) (the "Auditor"),does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (C) the Severance Payments shall be reduced only to the extent necessary so that no portion thereof shall be subject the Total Payments (other than those referred to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean in clause (iA) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would or(B)) in their entirety constitute “parachute payments” 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, less in the opinion of Tax Counsel, and (iiD) the amount value of all federal, state and local income taxes payable with respect to any noncash benefit or any deferred payment or benefit included in the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing Total Payments shall be paid to Executive determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii4) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the 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 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 absolute 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. If (a) Executive shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any payment amount payable to or other benefit receivable by Executive hereunder, including, without limitation, any excise tax imposed by Section 4999 of the Code; provided, however, that any such amount or benefit received or 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 by Executive in connection with which is deemed to constitute a “change in ownership Parachute Payment (whether or control” of the Company (within the meaning of Section 280G of the Code), whether payable pursuant to the terms of this Agreement or any other not under an existing plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”other agreement), and would constitute a “parachute payment” within result in the meaning imposition on Executive of an excise tax under Section 280G 4999 of the Code, the Payments (all such amounts and benefits being hereinafter called “Total 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 but only if, by reason of such reduction, the net after-tax benefit to received by the Executive shall exceed the net after-tax benefit to received by the Executive if no such reduction was made. For purposes of this Section 123.3, “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits which the Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the CodeParachute Payments, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to the Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing)) and the amount of applicable employment taxes, less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the codeCode. The foregoing determination will be made by For purposes of this Section 3.3, “Parachute Payment” shall mean 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 authorityparachute payment” within the meaning of as defined in Section 6662 280G 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 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 absolute 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. If Notwithstanding any payment provision of this Agreement to the contrary, if all or benefit any portion of the payments or benefits received or realized by any Executive pursuant to be received by this Agreement either alone or together with other payments or benefits which such Executive in connection with a “change in ownership receives or control” of realizes or is then entitled to receive or realize from the Company (or any of its affiliates would constitute an “excess parachute payment” within the meaning of Section 280G of the Code)Code and/or any corresponding and applicable state law provision, whether such payments or benefits provided to such Executive shall be reduced by reducing the amount of payments or benefits payable to such Executive 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 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 paragraph, “net after tax benefit” shall mean the sum of (i) the total amount received or realized by such Executive pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), that would constitute a “parachute payment” within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision, 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 but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean plus (iii) the total of all other payments and the value of all 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 paymentspayment” within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision, less (iiiii) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which the foregoing payments or benefits shall be paid to realized by such Executive (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiiiv) the amount of excise taxes imposed with respect to the payments and or benefits described in (i) and (ii) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive Code 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 any corresponding 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 or all amounts which may constitute “excess parachute paymentsapplicable state law provision.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute 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. If (a) In the event it shall be determined that any payment or distribution to you or for your benefit received or to be received by Executive which is in connection with the nature of compensation and is contingent on a “change in the ownership or control” effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G 280G(b)(2) of the Code), whether paid or payable pursuant to the terms of this Agreement letter or any other plan, arrangement or agreement with the Company or an affiliate of the Company otherwise (the a “PaymentsPayment”), would constitute a “parachute payment” within the meaning of under Section 280G 280G(b)(2) of the CodeCode and would be subject to the excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the “Excise Tax”), then 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 but only if, by reason of such reduction, the net after-tax benefit to Executive received by you shall exceed the net after-tax benefit to Executive received by you if no such reduction 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 129(a), “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits Payments which Executive receives you receive or is are then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing Payments calculated at the maximum marginal income tax rate for each year in which the foregoing Payments shall be paid to Executive you (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes Excise Taxes imposed with respect to the payments and benefits described in Payments. (ib) above by All determinations required to be made under this Section 4999 of the code. The foregoing determination will 9 shall be made by a such nationally recognized accounting firm as may be selected by the Audit Committee of the Board of Directors of the Company as constituted immediately prior to the change in control transaction (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 its determination, together with detailed supporting calculations and documentation, to you and the Company with its determinations and detailed supporting calculations with respect thereto at least within 15 business days prior to following the date on which Executive would be entitled to receive a Payment of termination of your employment, if applicable, or such other time as requested by you (or as soon as practicable in the event provided that the Accounting Firm has less than 15 business days advance notice you reasonably believe 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 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 absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall may 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 Excise Tax) 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 All fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will shall be borne exclusively solely by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. If (a) Executive shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any payment amount payable to or other benefit receivable by Executive hereunder, including, without limitation, any excise tax imposed by Section 4999 of the Code; provided, however, that any such amount or benefit received or 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 by Executive in connection with which is deemed to constitute a “change in ownership Parachute Payment (whether or control” of the Company (within the meaning of Section 280G of the Code), whether payable pursuant to the terms of this Agreement or any other not under an existing plan, arrangement or agreement with other agreement), and would result in the Company or imposition on Executive of an affiliate excise tax under Section 4999 of the Company Code (the all such amounts and benefits being hereinafter called “Total Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, 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 but only if, by reason of such reduction, the net after-tax benefit to received by Executive shall exceed the net after-tax benefit to received by Executive if no such reduction was made. For purposes of this Section 123.3, “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the CodeParachute Payments, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing)) and the amount of applicable employment taxes, less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the codeCode. The foregoing determination will be made by For purposes of this Section 3.3, “Parachute Payment” shall mean 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 authorityparachute payment” within the meaning of as defined in Section 6662 280G 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 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 absolute 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. If (a) In the event it shall be determined that any payment or distribution to you or for your benefit received or to be received by Executive which is in connection with the nature of compensation and is contingent on a “change in the ownership or control” effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G 280G(b)(2) of the Code), whether paid or payable pursuant to the terms of this Agreement letter or any other plan, arrangement or agreement with the Company or an affiliate of the Company otherwise (the a “PaymentsPayment”), would constitute a “parachute payment” within the meaning of under Section 280G 280G(b)(2) of the CodeCode and would be subject to the excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the “Excise Tax”), then 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 but only if, by reason of such reduction, the net after-tax benefit to Executive received by you shall exceed the net after-tax benefit to Executive received by you if no such reduction 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 128(a), “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits Payments which Executive receives you receive or is are then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing Payments calculated at the maximum marginal income tax rate for each year in which the foregoing Payments shall be paid to Executive you (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes Excise Taxes imposed with respect to the payments and benefits described in Payments. (ib) above by All determinations required to be made under this Section 4999 of the code. The foregoing determination will 8 shall be made by a such nationally recognized accounting firm as may be selected by the Audit Committee of the Board of Directors of the Company as constituted immediately prior to the change in control transaction (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 its determination, together with detailed supporting calculations and documentation, to you and the Company with its determinations and detailed supporting calculations with respect thereto at least within 15 business days prior to following the date on which Executive would be entitled to receive a Payment of termination of your employment, if applicable, or such other time as requested by you (or as soon as practicable in the event provided that the Accounting Firm has less than 15 business days advance notice you reasonably believe 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 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 absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall may 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 Excise Tax) 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 All fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will shall be borne exclusively solely by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. If (a) In the event it shall be determined that any payment or distribution to you or for your benefit received or to be received by Executive which is in connection with the nature of compensation and is contingent on a “change in the ownership or control” effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G 280G(b)(2) of the Code), whether paid or payable pursuant to the terms of this Agreement letter or any other plan, arrangement or agreement with the Company or an affiliate of the Company otherwise (the “Payments”a "Payment"), would constitute a “"parachute payment” within the meaning of " under Section 280G 280G(b)(2) of the CodeCode and would be subject to the excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the "Excise Tax"), then 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 but only if, by reason of such reduction, the net after-tax benefit to Executive received by you shall exceed the net after-tax benefit to Executive received by you if no such reduction was made. For purposes of this Section 127(a), “"net after-tax benefit” " shall mean (i) the total of all payments and the value of all benefits Payments which Executive receives you receive or is are then entitled to receive from the Company that would constitute “"parachute payments” " within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing Payments calculated at the maximum marginal income tax rate for each year in which the foregoing Payments shall be paid to Executive you (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes Excise Taxes imposed with respect to the payments and benefits described in Payments. (ib) above by All determinations required to be made under this Section 4999 of the code. The foregoing determination will 7 shall be made by a such nationally recognized accounting firm as may be selected by the Audit Committee of the Board of Directors of the Company as constituted immediately prior to the change in control transaction (the “"Accounting Firm”) selected by Executive and reasonably acceptable to the Company"), provided, that the Accounting Firm’s 's determination shall be made based upon “"substantial authority” " within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive its determination, together with detailed supporting calculations and documentation, to you and the Company with its determinations and detailed supporting calculations with respect thereto at least within 15 business days prior to following the date on which Executive would be entitled to receive a Payment of termination of your employment, if applicable, or such other time as requested by you (or as soon as practicable in the event provided that the Accounting Firm has less than 15 business days advance notice you reasonably believe 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 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 absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall may 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 Excise Tax) 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 All fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will shall be borne exclusively solely by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. If Notwithstanding any payment provision in this Agreement to the contrary, if all or benefit any portion of the payments or benefits received or to be received realized by Executive in connection either alone or together with a “change in ownership other payments or control” of 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, whether such payments or benefits provided to Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to the terms Section 11 of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Payments shall be reduced to the extent necessary so that no portion thereof of such payments shall be subject to the excise tax imposed by Section 4999 of the Code but and any corresponding and/or applicable state law provision; provided, however, that such reduction shall only be made if, by reason of such reduction, the Executive's net after-after tax benefit to Executive shall exceed the net after-after tax benefit to Executive if no such reduction was were not made. For purposes of this Section 1216, “"net after-after tax benefit” " shall mean the sum of (i) the total of all payments and the value of all benefits which amount received or realized by Executive receives or is then entitled pursuant to receive from the Company this Agreement that would constitute “a "parachute payments” payment" within the meaning of Section 280G of the CodeCode 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 (iiiii) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which the foregoing payments or benefits shall be paid to realized by Executive (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiiiv) the amount of excise taxes imposed with respect to the payments and or benefits described in (i) and (ii) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive Code 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 any corresponding 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 or all amounts which may constitute “excess parachute paymentsapplicable state law provision.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute 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. If Notwithstanding any payment provision of this Agreement to the contrary, if all or benefit any portion of the payments or benefits received or realized by an 2006 Employee Investor pursuant to be received by Executive in connection this Agreement either alone or together with a “change in ownership other payments or control” of benefits which 2006 Employee Investor receives or realizes or is then entitled to receive or realize from the Company (or any of its affiliates would constitute an “excess parachute payment” within the meaning of Section 280G of the Code)Code and/or any corresponding and applicable state law provision, whether such payments or benefits provided to 2006 Employee Investor shall be reduced by reducing the amount of payments or benefits payable to 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 that such reduction shall only be made if, by reason of such reduction, 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 paragraph, “net after tax benefit” shall mean the sum of (i) the total amount received or realized by 2006 Employee Investor pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), that would constitute a “parachute payment” within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision, 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 but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean plus (iii) the total of all other payments and the value of all 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 paymentspayment” within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision, less (iiiii) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which the foregoing payments or benefits shall be paid to Executive realized by 2006 Employee Investor (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiiiv) the amount of excise taxes imposed with respect to the payments and or benefits described in (i) and (ii) above by Section 4999 of the codeCode and any corresponding and applicable state law provision. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable Notwithstanding any other agreements or arrangements to the Companycontrary, provided, that this Section 13 sets forth 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 2006 Employee Investors’ sole and exclusive rights with regard to the Company with and its determinations and detailed supporting calculations with respect thereto at least 15 business days prior Subsidiaries relating 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 or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this potential tax treatment under Section 12, Executive, in his sole 280G and absolute 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, 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 any corresponding state law provisions of any books, records, and documents in the possession of Executive payments or the Company, as the case may be, reasonably requested benefits realized 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 an 2006 Employee Investor under 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 ExecutiveAgreement.

Code Section 280G. If Notwithstanding any payment provision of this Agreement to the contrary, if all or benefit any portion of the payments or benefits received or to be received realized by Executive in connection pursuant to this Agreement either alone or together with a “change in ownership other payments or control” of benefits which Executive receives or realizes or is then entitled to receive or realize from the Company (or any of its affiliates would constitute an "EXCESS PARACHUTE PAYMENT" within the meaning of Section 280G of the Code)Code and/or any corresponding and applicable state law provision, whether payable pursuant such payments or benefits provided to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Payments Executive shall be reduced by reducing the amount of payments or benefits payable to Executive to the extent necessary so that no portion thereof of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code but and any corresponding and/or applicable state law provision; provided that such reduction shall only be made if, by reason of such reduction, the Executive's net after-after tax benefit to Executive shall exceed the net after-after tax benefit to Executive if no such reduction was were not made. For purposes of this Section 12paragraph, “net after-tax benefit” "NET AFTER TAX BENEFIT" shall mean the sum of (i) the total of all payments and the value of all benefits which amount received or realized by Executive receives or is then entitled pursuant to receive from the Company this Agreement that would constitute “a "parachute payments” payment" within the meaning of Section 280G of the CodeCode 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 (iiiii) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which the foregoing payments or benefits shall be paid to realized by Executive (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiiiv) the amount of excise taxes imposed with respect to the payments and or benefits described in (i) and (ii) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive Code 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 any corresponding 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 or all amounts which may constitute “excess parachute paymentsapplicable state law provision.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute 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. If Notwithstanding any payment provision of this Agreement to the contrary, if all or benefit any portion of the payments or benefits received or realized by an Employee Investor pursuant to be received by Executive in connection this Agreement either alone or together with a “change in ownership other payments or control” of benefits which Employee Investor receives or realizes or is then entitled to receive or realize from the Company (or any of its affiliates would constitute an "EXCESS PARACHUTE PAYMENT" within the meaning of Section 280G of the Code)Code and/or any corresponding and applicable state law provision, whether payable pursuant such payments or benefits provided to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Payments Employee Investor shall be reduced by reducing the amount of payments or benefits payable to Employee Investor to the extent necessary so that no portion thereof of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code but and any corresponding and/or applicable state law provision; provided that such reduction shall only be made if, by reason of such reduction, the Employee Investor's net after-after tax benefit to Executive shall exceed the net after-after tax benefit to Executive if no such reduction was were not made. For purposes of this Section 12paragraph, “net after-tax benefit” "NET AFTER TAX BENEFIT" shall mean the sum of (i) the total of all payments and the value of all benefits which Executive receives amount received or is then entitled realized by Employee Investor pursuant to receive from the Company this Agreement that would constitute “a "parachute payments” payment" within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision, plus (ii) all other payments or benefits which 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 (iiiii) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which the foregoing payments or benefits shall be paid to Executive realized by Employee Investor (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiiiv) the amount of excise taxes imposed with respect to the payments and or benefits described in (i) and (ii) above by Section 4999 of the codeCode and any corresponding and applicable state law provision. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable Notwithstanding any other agreements or arrangements to the Companycontrary (including without limitation those entered into in connection with the 2004 Retention Plan), provided, that this SECTION 13 sets forth the Accounting Firm’s determination shall be made based upon “substantial authority” 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 6662 280G of the Code. The Accounting Firm 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 provide Executive and not be subject to the provisions of such Severance Agreement which require the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business days prior to "gross-up" 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 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 absolute discretion, may determine which of the Payments shall be reduced Employee Investor to the extent necessary so that to put the Employee Investor in the same after tax position which he would have been in had no portion thereof shall be subject excise tax been imposed on payments to the excise tax imposed by Employee Investor pursuant to Section 4999 of the CodeCode and any corresponding and/or applicable state law provision. For purposes of determining the application of the preceding sentence, 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 excess parachute payment that is attributable to this Agreement shall bear the possession same proportion to the total amount of excess parachute payments received by the Executive or the Company, as the case may be, reasonably requested 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 Accounting FirmEmployee Investor. The parties hereto acknowledge that, and otherwise cooperate with except as set forth in above, the Accounting Firm in connection with the preparation and issuance provisions of the determinations and calculations contemplated by this Section 12. The first $10,000 of fees and expenses of 10 shall not be construed to limit the Accounting Firm for its services in connection Employee Investor's rights 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 Executiverespect to his Severance Agreement.]

Code Section 280G. If any 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 or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, 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 but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the 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 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 her sole and absolute 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. If any 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 or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”"PAYMENTS"), would constitute a “"parachute payment” " within the meaning of Section 280G of the Code, 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 but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section SECTION 12, “"net after-tax benefit” " shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “"parachute payments” " within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the codeCode. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”"ACCOUNTING FIRM") selected by Executive and reasonably acceptable to the Company, providedPROVIDED, that the Accounting Firm’s '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 's best interest to waive the receipt of any or all amounts which may constitute “"excess parachute payments.” " If the Accounting Firm determines that such reduction is required by this Section SECTION 12, Executive, in his sole and absolute 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 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 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. If any 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 or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “"Payments”"), would constitute a “"parachute payment” " within the meaning of Section 280G of the Code, 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 but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “"net after-tax benefit” " shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “"parachute payments” " within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the codeCode. 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 '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 's best interest to waive the receipt of any 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 absolute 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 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. If Notwithstanding any payment provision of this Agreement to ----------------- the contrary, if all or benefit any portion of the payments or benefits received or to be received realized by Executive in connection pursuant to this Agreement either alone or together with a “change in ownership other payments or control” of 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 Code)Internal Revenue Code of 1986, whether payable pursuant to the terms of this Agreement as amended (or any other plan, arrangement or agreement with successor section) and the Company or an affiliate of the Company regulations promulgated thereunder (the “Payments”)"Code") and/or any corresponding and ---- applicable state law provision, would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Payments such payments or benefits provided to Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to this Agreement to the extent necessary so that no portion thereof of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code but and any corresponding and/or applicable state law provision; provided that such reduction shall only be made if, by reason of such -------- ---- reduction, the Executive's net after-after tax benefit to Executive shall exceed the net after-after tax benefit to Executive if no such reduction was were not made. For purposes of this Section 12paragraph, “"net after---- after tax benefit” " shall mean the sum of (i) the total of all payments and the value of all benefits which amount received or ----------------- realized by Executive receives or is then entitled pursuant to receive from the Company this Agreement that would constitute “a "parachute payments” payment" within the meaning of Section 280G of the CodeCode 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 (iiiii) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (i) and (ii) above calculated at the maximum marginal margin individual income tax rate for each year in which the foregoing payments or benefits shall be paid to realized by Executive (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiiiv) the amount of excise taxes imposed with respect to the payments and or benefits described in (i) and (ii) above by Section 4999 of the codeCode and any corresponding and applicable state law provision. 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 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 absolute 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. If (a) Executive shall bear all expense of, and be solely responsible for, any excise tax imposed by Section 4999 of the Code (such excise tax being the “Excise Tax”) to the extent applicable; provided, however, that any 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 under the terms of this Agreement or any other plan, arrangement or agreement with the Company either Employer or an affiliate of the Company Employer Group (collectively, the “Payments”), ) that would constitute a “parachute payment” within the meaning of Section 280G of the CodeCode (to the extent applicable), 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 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 to Executive shall exceed the net after-tax benefit to benefit” that would be received by Executive if no such reduction was made. For purposes of this Section 12, . (b) The “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits Payments which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income and employment taxes payable by Executive with respect to the foregoing calculated at the maximum highest marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes Excise Tax imposed with respect to the payments and benefits described in clause (ib)(i) above by Section 4999 of the code. The foregoing determination above. (c) All determinations under this Paragraph 18 will be made by a nationally an actuarial firm, accounting firm, law firm, or consulting firm experienced and generally recognized accounting firm in 280G matters (the “Accounting 280G Firm”) selected that is chosen by Executive and reasonably acceptable MVB prior to the Company, provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” a change in ownership or control of a corporation (within the meaning of Treasury regulations under Section 6662 280G of the Code). The Accounting 280G Firm shall provide Executive be required to evaluate the applicability of Section 280G to this case and the Company with 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 determinations successor. MVB will direct the 280G Firm to submit any determination it makes under this Paragraph 18 and detailed supporting calculations with respect thereto at least 15 business days prior to the date on which both Executive would be entitled to receive a Payment (or and MVB as soon as practicable in the event that the Accounting Firm has less than 15 business days advance notice that Executive may receive a Paymentreasonably practicable. (d) in order that Executive may determine whether it is in Executive’s best interest to waive the receipt of any or all amounts which may constitute “excess parachute payments.” If the Accounting 280G Firm determines that one or more reductions are required under this Paragraph 18, such reduction is required by this Section 12, Executive, in his sole and absolute discretion, may determine which of the 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 imposed by Section 4999 of the CodeExcise Tax, and the Company 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 Company shall each extent that, the deemed loan and payment would either (i) 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 Accounting 280G Firm access to and copies of any books, records, and documents in the their possession of Executive or the Company, as the case may be, reasonably requested by the Accounting 280G Firm, and otherwise cooperate with the Accounting Firm 280G Firm, in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 12Paragraph 18. The first $10,000 For purposes of fees 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 expenses 4999 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 ExecutiveCode.

Code Section 280G. If Notwithstanding any payment provision of this Agreement to ----------------- the contrary, if all or benefit any portion of the payments or benefits received or to be received realized by Executive in connection pursuant to this Agreement either alone or together with a “change in ownership other payments or control” of 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 Code)Internal Revenue Code of 1986, whether payable pursuant to the terms of this Agreement as amended (or any other plan, arrangement or agreement with successor section) and the Company or an affiliate of the Company regulations promulgated thereunder (the “Payments”)"Code") and/or any corresponding and ---- applicable state law provision, would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Payments such payments or benefits provided to Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to this Agreement to the extent necessary so that no portion thereof of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code but and any corresponding and/or applicable state law provision; provided that such reduction shall only be made if, by reason of such -------- ---- reduction, the Executive's net after-after tax benefit to Executive shall exceed the net after-after tax benefit to Executive if no such reduction was were not made. For purposes of this Section 12paragraph, “"net after---- after tax benefit” " shall mean the sum of (i) the total of all payments and the value of all benefits which amount received or ----------------- realized by Executive receives or is then entitled pursuant to receive from the Company this Agreement that would constitute “a "parachute payments” payment" within the meaning of Section 280G of the CodeCode 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 (iiiii) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which the foregoing payments or benefits shall be paid to realized by Executive (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiiiv) the amount of excise taxes imposed with respect to the payments and or benefits described in (i) and (ii) above by Section 4999 of the codeCode and any corresponding and applicable state law provision. 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 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 absolute 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. If Notwithstanding any payment provision of this Agreement to the contrary, if all or benefit any portion of the payments or benefits received or to be received realized by Executive in connection pursuant to this Agreement either alone or together with a “change in ownership other payments or control” of 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 Code)Code and/or any corresponding and applicable state law provision, whether payable pursuant such payments or benefits provided to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Payments Executive shall be reduced by reducing the amount of payments or benefits payable to Executive pursuant to this Agreement to the extent necessary so that no portion thereof of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code but and any corresponding and/or applicable state law provision; provided that such reduction shall only be made if, by reason of such reduction, the Executive's net after-after tax benefit to Executive shall exceed the net after-after tax benefit to Executive if no such reduction was were not made. For purposes of this Section 12paragraph, “"net after-after tax benefit” " shall mean the sum of (ia) the total of all payments and the value of all benefits which amount received or realized by Executive receives or is then entitled pursuant to receive from the Company this Agreement that would constitute “a "parachute payments” payment" within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision, plus (b) 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 (iic) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (a) and (b) above calculated at the maximum marginal individual income tax rate for each year in which the foregoing payments or benefits shall be paid to realized by Executive (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiid) the amount of excise taxes imposed with respect to the payments and or benefits described in (ia) and (b) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive Code 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 any corresponding 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 or all amounts which may constitute “excess parachute paymentsapplicable state law provision.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute 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. If (a) In the event it shall be determined that any payment or distribution to you or for your benefit received or to be received by Executive which is in connection with the nature of compensation and is contingent on a “change in the ownership or control” effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G 280G(b)(2) of the Code), whether paid or payable pursuant to the terms of this Agreement letter or any other plan, arrangement or agreement with the Company or an affiliate of the Company otherwise (the a “PaymentsPayment”), would constitute a “parachute payment” within the meaning of under Section 280G 280G(b)(2) of the CodeCode and would be subject to the excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the “Excise Tax”), then 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 but only if, by reason of such reduction, the net after-tax benefit to Executive received by you shall exceed the net after-tax benefit to Executive received by you if no such reduction 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 128(a), “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits Payments which Executive receives you receive or is are then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing Payments calculated at the maximum marginal income tax rate for each year in which the foregoing Payments shall be paid to Executive you (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes Excise Taxes imposed with respect to the payments and benefits described in Payments. (ib) above by All determinations required to be made under this Section 4999 of the code. The foregoing determination will 8 shall be made by a such nationally recognized accounting firm as may be selected by the Audit Committee of the Board as constituted immediately prior to the change in control transaction (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 its determination, together with detailed supporting calculations and documentation, to you and the Company with its determinations and detailed supporting calculations with respect thereto at least within 15 business days prior to following the date on which Executive would be entitled to receive a Payment of termination of your employment, if applicable, or such other time as requested by you (or as soon as practicable in the event provided that the Accounting Firm has less than 15 business days advance notice you reasonably believe 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 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 absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall may 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 Excise Tax) 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 All fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will shall be borne exclusively solely by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. If Notwithstanding any payment provision of this Agreement to the contrary, if all or benefit any portion of the payments or benefits received or realized by any Executive pursuant to be received by this Agreement either alone or together with other payments or benefits which such Executive in connection with a “change in ownership receives or control” of realizes or is then entitled to receive or realize from the Company (or any of its affiliates would constitute an "excess parachute payment" within the meaning of Section 280G of the Code)Code and/or any corresponding and applicable state law provision, whether payable pursuant such payments or benefits provided to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, the Payments such Executive shall be reduced by reducing the amount of payments or benefits payable to such Executive to the extent necessary so that no portion thereof of such payments or benefits shall be subject to the excise tax imposed by Section 4999 of the Code but and any corresponding and/or applicable state law provision; provided that such reduction shall only be made if, by reason of such reduction, the such Executive's net after-after tax benefit to Executive shall exceed the net after-after tax benefit to Executive if no such reduction was were not made. For purposes of this Section 12paragraph, “"net after-after tax benefit” " shall mean the sum of (i) the total of all payments and the value of all benefits which amount received or realized by such Executive receives or is then entitled pursuant to receive from the Company this Agreement that would constitute “a "parachute payments” payment" within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law 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 (iiiii) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which the foregoing payments or benefits shall be paid to realized by such Executive (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiiiv) the amount of excise taxes imposed with respect to the payments and or benefits described in (i) and (ii) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive Code 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 any corresponding 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 or all amounts which may constitute “excess parachute paymentsapplicable state law provision.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute 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. If Notwithstanding any payment provision of this Agreement to the contrary, if all or benefit any portion of the payments or benefits received or realized by the 2008 Employee Investor pursuant to be received by Executive in connection this Agreement either alone or together with a “change in ownership other payments or control” of benefits which 2008 Employee Investor receives or realizes or is then entitled to receive or realize from the Company (or any of its affiliates would constitute an “excess parachute payment” within the meaning of Section 280G of the Code)Code and/or any corresponding and applicable state law provision, whether such payments or benefits provided to 2008 Employee Investor shall be reduced by reducing the amount of payments or benefits payable to 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 that such reduction shall only be made if, by reason of such reduction, 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 paragraph, “net after tax benefit” shall mean the sum of (i) the total amount received or realized by 2008 Employee Investor pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), that would constitute a “parachute payment” within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision, 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 but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean plus (iii) the total of all other payments and the value of all 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 paymentspayment” within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision, less (iiiii) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which the foregoing payments or benefits shall be paid to Executive realized by 2008 Employee Investor (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiiiv) the amount of excise taxes imposed with respect to the payments and or benefits described in (i) and (ii) above by Section 4999 of the codeCode and any corresponding and applicable state law provision. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable Notwithstanding any other agreements or arrangements to the Companycontrary, provided, that this Section 13 sets forth the Accounting Firm2008 Employee Investor’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive sole and exclusive rights with regard to the Company with and its determinations and detailed supporting calculations with respect thereto at least 15 business days prior Subsidiaries relating 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 or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this potential tax treatment under Section 12, Executive, in his sole 280G and absolute 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, 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 any corresponding state law provisions of any books, records, and documents in the possession of Executive payments or the Company, as the case may be, reasonably requested benefits realized 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 2008 Employee Investor under 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 ExecutiveAgreement.

Code Section 280G. If (a) In the event it shall be determined that any payment or distribution to you or for your benefit received or to be received by Executive which is in connection with the nature of compensation and is contingent on a “change in the ownership or control” effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G 280G(b)(2) of the Code), whether paid or payable pursuant to the terms of this Agreement letter or any other plan, arrangement or agreement with the Company or an affiliate of the Company otherwise (the a “PaymentsPayment”), would constitute a “parachute payment” within the meaning of under Section 280G 280G(b)(2) of the CodeCode and would be subject to the excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the “Excise Tax”), then 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 but only if, by reason of such reduction, the net after-tax benefit to Executive received by you shall exceed the net after-tax benefit to Executive received by you if no such reduction was made. For purposes of this Section 129(a), “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits Payments which Executive receives you receive or is are then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing Payments calculated at the maximum marginal income tax rate for each year in which the foregoing Payments shall be paid to Executive you (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes Excise Taxes imposed with respect to the payments and benefits described in Payments. (ib) above by All determinations required to be made under this Section 4999 of the code. The foregoing determination will 9 shall be made by a such nationally recognized accounting firm as may be selected by the Audit Committee of the Board of Directors of the Company as constituted immediately prior to the change in control transaction (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 its determination, together with detailed supporting calculations and documentation, to you and the Company with its determinations and detailed supporting calculations with respect thereto at least within 15 business days prior to following the date on which Executive would be entitled to receive a Payment of termination of your employment, if applicable, or such other time as requested by you (or as soon as practicable in the event provided that the Accounting Firm has less than 15 business days advance notice you reasonably believe 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 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 absolute discretion, may determine which of the Payments shall be reduced to the extent necessary so that no portion thereof shall may 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 Excise Tax) 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 All fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 12 will shall be borne exclusively solely by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executive.

Code Section 280G. If (i) Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined that any payment payment, distribution, or other action by the Company to or for the benefit received or to be received by Executive in connection with a “change in ownership or control” of the Company Employee (within the meaning of Section 280G of the Code), whether paid or payable or distributed or distributable pursuant to the terms of this the Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company otherwise (the each a “PaymentsPayment”)), would constitute a result in an “excess parachute payment” within the meaning of Section 280G 280G(b)(i) of the Code, then the Payments shall be reduced to the extent necessary so “Reduced Amount;” provided, however, that no portion thereof such reduction shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, made unless the net after-tax benefit to Executive shall received by the Employee after such reduction would exceed the net after-tax benefit to Executive received by the Employee if no such reduction was mademade The “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be an excess parachute payment under Section 280G(b)(i) of the Code. For purposes of this Section 127(e), “net after-tax benefit” present value shall mean (ibe determined in accordance with Section 280G(d)(4) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code. If applicable, less Payments shall be reduced in the following order: (A) any cash severance based on a multiple of Base Salary or Annual Bonus; (B) any other cash amounts payable to the Employee; (C) benefits valued as parachute payments; and (D) acceleration of vesting of any equity awards. If and to the extent necessary to avoid a violation of Section 409A, no amounts payable under any “nonqualified deferred compensation plan” subject to Section 409A shall be reduced until after all other Payments have been reduced. (ii) All determinations required to be made under this Section 7(e), including the amount of all federal, state any Reduced Amount and local income taxes payable with respect the Payments that are to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing be reduced pursuant to Section 7(e)(i) and shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm the Company’s accountants serving immediately prior to the date of the applicable Change in Control (the “Accounting Firm”) selected by Executive and reasonably acceptable ), which shall provide detailed supporting calculations both to the Company and the Employee within 15 business days of the receipt of notice from the Employee that there has been a Payment, or such earlier time as is requested by the Company, provided, that the . The Accounting Firm’s determination decision as to which Payments are to be reduced shall be made based upon “substantial authority” within in consultation with the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive Employee 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 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 absolute 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 CodeEmployee’s consent, and the Company which 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 not be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executiveunreasonably withheld.

Code Section 280G. If any payment or benefit received or Notwithstanding anything to be received by Executive the contrary in connection with this Agreement, if the Employee is a “change disqualified individual” (as defined in ownership or control” of the Company (within the meaning of Code Section 280G of the Code280G(c)), whether payable pursuant to and the terms of payments and benefits provided for under this Agreement or Agreement, together with any other plan, arrangement or agreement with payments and benefits which the Employee has the right to receive from the Company or an affiliate any of the Company (the “Payments”)its affiliates, would constitute a “parachute payment” within (as defined in Code Section 280G(b)(2)), then the meaning of Section 280G of the Code, the Payments payments and benefits provided for under this Agreement shall be either (a) reduced to (but not below zero) so that the extent necessary 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(b)(3)) and so that no portion thereof of such 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 Code but only if, by reason of such reduction, the better net after-tax position to the Employee (taking into account any applicable excise tax under Code Section 4999 and any other applicable taxes). The reduction of payments and 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 Executive shall exceed the net after-tax benefit be provided in kind hereunder in a similar order. The determination as to Executive if no whether any such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) in the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the code. The foregoing determination will provided hereunder is necessary shall be made by a nationally recognized accounting firm mutually agreed to by the Company and the Employee. 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 the Company (or its affiliates) used in determining if a parachute payment exists, exceeds one dollar ($1.00) less than three times the “Accounting Firm”) selected by Executive and reasonably acceptable Employee’s base amount, then the Employee shall immediately repay such excess to the Company, provided, Company upon notification 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 an overpayment 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 or all amounts which may constitute “excess parachute paymentsbeen made.” If the Accounting Firm determines that such reduction is required by this Section 12, Executive, in his sole and absolute 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. If Notwithstanding any payment provision of this Agreement to the contrary, if all or benefit any portion of the payments or benefits received or realized by an 2006 Director Investor pursuant to be received by Executive in connection this Agreement either alone or together with a “change in ownership other payments or control” of benefits which 2006 Director Investor receives or realizes or is then entitled to receive or realize from the Company (or any of its affiliates would constitute an “excess parachute payment” within the meaning of Section 280G of the Code)Code and/or any corresponding and applicable state law provision, whether such payments or benefits provided to 2006 Director Investor shall be reduced by reducing the amount of payments or benefits payable to 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 that such reduction shall only be made if, by reason of such reduction, 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 paragraph, “net after tax benefit” shall mean the sum of (i) the total amount received or realized by 2006 Director Investor pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), that would constitute a “parachute payment” within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision, 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 but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean plus (iii) the total of all other payments and the value of all 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 paymentspayment” within the meaning of Section 280G of the CodeCode and any corresponding and applicable state law provision, less (iiiii) the amount of all federal, federal or state and local income taxes payable with respect to the foregoing payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which the foregoing payments or benefits shall be paid to Executive realized by 2006 Director Investor (based on upon the rate in effect for such year as set forth in the Code as in effect at the time of the first payment receipt or realization of the foregoing), less (iiiiv) the amount of excise taxes imposed with respect to the payments and or benefits described in (i) and (ii) above by Section 4999 of the codeCode and any corresponding and applicable state law provision. The foregoing determination will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable Notwithstanding any other agreements or arrangements to the Companycontrary, provided, that this Section 13 sets forth 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 2006 Director Investors’ sole and exclusive rights with regard to the Company with and its determinations and detailed supporting calculations with respect thereto at least 15 business days prior Subsidiaries relating 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 or all amounts which may constitute “excess parachute payments.” If the Accounting Firm determines that such reduction is required by this potential tax treatment under Section 12, Executive, in his sole 280G and absolute 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, 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 any corresponding state law provisions of any books, records, and documents in the possession of Executive payments or the Company, as the case may be, reasonably requested benefits realized 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 an 2006 Director Investor under 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 ExecutiveAgreement.

Code Section 280G. If (i) Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined that any payment payment, distribution, or other action by the Company to or for the benefit received or to be received by Executive in connection with a “change in ownership or control” of the Company Employee (within the meaning of Section 280G of the Code), whether paid or payable or distributed or distributable pursuant to the terms of this the Agreement or any other plan, arrangement or agreement with the Company or an affiliate of the Company otherwise (the each a “PaymentsPayment”)), would constitute a result in an “excess parachute payment” within the meaning of Section 280G 280G(b)(i) of the Code, then the Payments shall be reduced to the extent necessary so “Reduced Amount;” provided, however, that no portion thereof such reduction shall be subject to the excise tax imposed by Section 4999 of the Code but only if, by reason of such reduction, made unless the net after-tax benefit to Executive shall received by the Employee after such reduction would exceed the net after-tax benefit to Executive received by the Employee if no such reduction was made. The “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of Payments without causing any Payment to be an excess parachute payment under Section 280G(b)(i) of the Code. For purposes of this Section 127(e), “net after-tax benefit” present value shall mean (ibe determined in accordance with Section 280G(d)(4) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code. If applicable, less Payments shall be reduced in the following order: (A) any cash severance based on a multiple of Base Salary or Annual Bonus; (B) any other cash amounts payable to the Employee; (C) benefits valued as parachute payments; and (D) acceleration of vesting of any equity awards. If and to the extent necessary to avoid a violation of Section 409A, no amounts payable under any “nonqualified deferred compensation plan” subject to Section 409A shall be reduced until after all other Payments have been reduced. (ii) All determinations required to be made under this Section 7(e), including the amount of all federal, state any Reduced Amount and local income taxes payable with respect the Payments that are to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing be reduced pursuant to Section 7(e)(i) and shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the code. The foregoing determination will be made by a nationally recognized accounting firm the Company’s accountants serving immediately prior to the date of the applicable Change in Control (the “Accounting Firm”) selected by Executive and reasonably acceptable ), which shall provide detailed supporting calculations both to the Company and the Employee within 15 business days of the receipt of notice from the Employee that there has been a Payment, or such earlier time as is requested by the Company, provided, that the . The Accounting Firm’s determination decision as to which Payments are to be reduced shall be made based upon “substantial authority” within in consultation with the meaning of Section 6662 of the Code. The Accounting Firm shall provide Executive Employee 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 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 absolute 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 CodeEmployee’s consent, and the Company which 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 not be borne exclusively by the Company, and the balance of any such fees and expenses, if any shall be borne exclusively by Executiveunreasonably withheld.

Code Section 280G. If any 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 or any other plan, arrangement or agreement with the Company or an affiliate of the Company (the “Payments”), would constitute a “parachute payment” within the meaning of Section 280G of the Code, 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 but only if, by reason of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was made. For purposes of this Section 12, “net after-tax benefit” shall mean (i) the total of all payments and the value of all benefits which Executive receives or is then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the codeCode. 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 '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 's best interest to waive the receipt of any 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 her sole and absolute 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 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.