Common use of Code Section 280G Clause in Contracts

Code Section 280G. If any of the payments or benefits received or to be received by Executive (including, without limitation, any payment or benefits received in connection with a Change in Control or Executive’s termination of employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 5.9, be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code” and such tax, the “Excise Tax”), then prior to making the 280G Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to Executive of the 280G Payments after payment of the Excise Tax to (ii) the Net Benefit to Executive if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the 280G Payments be reduced to the minimum extent necessary to ensure that no portion of the 280G Payments is subject to the Excise Tax. “Net Benefit” shall mean the present value of the 280G Payments net of all federal, state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 shall be made in a manner determined by the Corporation that is consistent with the requirements of Section 409A. All calculations and determinations under this Section 5.9 shall be made by an independent accounting firm or independent tax counsel appointed by the Corporation (the “Tax Counsel”) whose determinations shall be conclusive and binding on the Corporation and Executive for all purposes. For purposes of making the calculations and determinations required by this Section 5.9, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Corporation and Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section 5.9. The Corporation shall bear all costs the Tax Counsel may reasonably incur in connection with its services.

Code Section 280G. If 6.1 Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any benefit, payment or distribution by the Company to or for the benefit of the payments or benefits received or to be received by Executive (including, without limitation, any payment whether payable or benefits received in connection with a Change in Control or Executive’s termination of employment, whether distributable pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such benefits, payments collectively or distributions are hereinafter referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 5.9if paid, be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code” and such tax, the “Excise Tax”)) imposed by Code Section 4999, then prior to the making of any of the 280G PaymentsPayments to the Executive, a calculation shall be made comparing (i) the Net Benefit (as defined below) net benefit to Executive the Executive, of the 280G Payments after payment of the Excise Tax Tax, to (ii) the Net Benefit net benefit to Executive the Executive, if the 280G Payments are had been limited to the extent necessary to avoid being subject to the Excise Tax. Only if If the amount calculated under (i) above is less than the amount calculated under (ii) above will above, then the 280G Payments shall be reduced limited to the minimum extent necessary to ensure that no portion of the 280G Payments is avoid being subject to the Excise TaxTax (the “Reduced Amount”). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the change of control, as determined by the Determination Firm (as defined in subsection (b) below). For purposes of this Section 6, present value shall be determined in accordance with Code Section 280G(d)(4). For purposes of this Section 6, the “Net BenefitParachute Value” shall mean of a Payment means the present value as of the 280G Payments net date of all federalthe change of control of the portion of such Payment that constitutes a “parachute payment” under Code Section 280G(b)(2), state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 shall be made in a manner as determined by the Corporation that is consistent with Determination Firm for purposes of determining whether and to what extent the requirements of Section 409A. Excise Tax will apply to such Payment. 6.2 All calculations and determinations required to be made under this Section 5.9 6, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, shall be made by an independent independent, nationally recognized accounting firm or independent tax counsel appointed by compensation consulting firm mutually acceptable to the Corporation Company and the Executive (the “Tax CounselDetermination Firm”) whose determinations which shall provide detailed supporting calculations both to the Company and the Executive within 15 days of the receipt of notice from the Executive that a Payment is due to be made, or such earlier time as is requested by the Company. All fees and expenses of the Determination Firm shall be conclusive borne solely by the Company. Any determination by the Determination Firm shall be binding upon the Company and binding on the Corporation and Executive for all purposesExecutive. For purposes As a result of making the calculations and determinations required uncertainty in the application of Code Section 4999 at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments hereunder will have been unnecessarily limited by this Section 5.96 (“Underpayment”), consistent with the Tax Counsel may rely on reasonablecalculations required to be made hereunder. The Determination Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive together with interest at the applicable Federal rate provided for in Code Section 7872(f)(2), good faith assumptions and approximations concerning but no later than March 15 of the application year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. 6.3 In the event that the provisions of Code Section 280G and Section 4999 of the Code. The Corporation and Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under or any successor provisions are repealed without succession, this Section 5.9. The Corporation 6 shall bear all costs the Tax Counsel may reasonably incur in connection with its servicesbe of no further force or effect.

Code Section 280G. If any of 6.4.1 in the payments or benefits received or to event it shall be received by Executive (including, without limitation, determined that any payment or benefits received in connection with a Change in Control distribution to the Executive or for the Executive’s termination benefit which is in the nature of employmentcompensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), whether paid or payable pursuant to the terms of this Agreement or otherwise (a “Payment”), would constitute a “parachute payment” under Section 280G(b)(2) of the Code and would be subject to the excise tax imposed by Section 4999 of the Code (together with any other planinterest or penalties imposed with respect to such excise tax, arrangement or agreement, or otherwise) (all such payments collectively referred to herein as the “280G PaymentsExcise 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 received by the Executive shall exceed the net after-tax benefit received by the Executive 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 the Executive, 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 6.4.1, “net after-tax benefit” shall mean (i) the Payments which the Executive receives or are then entitled to receive from the Company that would constitute “parachute payments” within the meaning of Section 280G of the Code and wouldCode, but for this Section 5.9, be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code” and such tax, the “Excise Tax”), then prior to making the 280G Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to Executive of the 280G Payments after payment of the Excise Tax to less (ii) the Net Benefit to Executive if the 280G Payments are limited amount of all federal, state and local income taxes payable with respect to the extent necessary Payments calculated at the maximum marginal income tax rate for each year in which the Payments shall be paid to avoid being 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), less (iii) the amount of Excise Taxes imposed with respect to the Payments. 6.4.2 All determinations required to be made under this Section 6.4 shall be made by 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”), provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code, The Accounting Firm shall provide its determination, together with detailed supporting calculations and documentation, to the Executive and the Company within 15 business days following the date of termination of the Executive’s employment, if applicable, or such other time as requested by the Executive (provided that the Executive reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. Only if the amount calculated under (i) above is less than the amount under (ii) above will the 280G Payments be reduced to the minimum extent necessary to ensure that no portion All reasonable fees and expenses of the 280G Payments is subject to the Excise Tax. “Net Benefit” shall mean the present value of the 280G Payments net of all federal, state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 Accounting Firm in reaching such a determination shall be made in a manner determined borne solely by the Corporation that is consistent with the requirements of Section 409A. All calculations and determinations under this Section 5.9 shall be made by an independent accounting firm or independent tax counsel appointed by the Corporation (the “Tax Counsel”) whose determinations shall be conclusive and binding on the Corporation and Executive for all purposes. For purposes of making the calculations and determinations required by this Section 5.9, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Corporation and Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section 5.9. The Corporation shall bear all costs the Tax Counsel may reasonably incur in connection with its servicesCompany.

Code Section 280G. If any of (a) Notwithstanding anything in this Agreement to the payments or benefits received or to contrary, in the event it shall be received by Executive (including, without limitation, determined that any payment or benefits received in connection with a Change in Control distribution by the Company to or Executive’s termination for the benefit of employment, the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such benefits, payments collectively or distributions are hereinafter referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 5.9if paid, be subject to the excise tax imposed under by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code” and such tax, the “Excise Tax”), then then, prior to the making of any Payments to the 280G PaymentsExecutive, a calculation shall be made comparing (iX) the Net Benefit (as defined below) net after-tax benefit to the Executive of the 280G Payments after payment by the Executive of the Excise Tax Tax, to (iiY) the Net Benefit net after-tax benefit to the Executive if the 280G Payments are had been limited to the extent necessary to avoid being subject to the Excise Tax. Only if If the amount calculated under (iX) above is less than the amount calculated under (iiY) above will above, then the 280G Payments shall be reduced limited to the minimum extent necessary to ensure that no portion of the 280G Payments is avoid being subject to the Excise TaxTax (the “Reduced Amount”). “Net Benefit” shall mean the present value The reduction of the 280G Payments net of all federaldue hereunder, stateif applicable, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 shall be made in a manner determined by the Corporation that is consistent with the requirements of Section 409A. All calculations and determinations under this Section 5.9 shall be made by an independent accounting firm or independent tax counsel appointed first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value (as defined below) to actual present value of such Payments as of the date of the Change in Control, as determined by the Corporation Determination Firm (the “Tax Counsel”as defined in Section 3.7(b)(ii)) whose determinations shall be conclusive and binding on the Corporation and Executive for all purposesbelow). For purposes of making the calculations and determinations required by this Section 5.93.7, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of present value shall be determined in accordance with Section 280G and Section 4999 280G(d)(4) of the Code. The Corporation and Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under For purposes of this Section 5.9. The Corporation shall bear all costs 3.7, the “Parachute Value” of a Payment means the present value as of the date of the Change in Control of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax Counsel may reasonably incur in connection with its serviceswill apply to such Payment.

Code Section 280G. If any of (a) Notwithstanding anything in this Agreement to the payments or benefits received or to contrary, in the event it shall be received by Executive (including, without limitation, determined that any payment or benefits received in connection with a Change in Control distribution by Employer to or Executive’s termination for the benefit of employment, Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such benefits, payments collectively or distributions are hereinafter referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 5.9if paid, be subject to the excise tax imposed under by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code” and such tax, the “Excise Tax”), then then, prior to the making the 280G Paymentsof any Payments to Employee, a calculation shall be made comparing (iX) the Net Benefit (as defined below) net after-tax benefit to Executive Employee of the 280G Payments after payment by Employee of the Excise Tax Tax, to (iiY) the Net Benefit net after-tax benefit to Executive Employee if the 280G Payments are had been limited to the extent necessary to avoid being subject to the Excise Tax. Only if If the amount calculated under (iX) above is less than the amount calculated under (iiY) above will above, then the 280G Payments shall be reduced limited to the minimum extent necessary to ensure that no portion of the 280G Payments is avoid being subject to the Excise TaxTax (the “Reduced Amount”). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value (as defined below) to actual present value of such Payments as of the date of the Change in Control, as determined by the Determination Firm (as defined in Section 10(b)(ii)) below). For purposes of this Section 10, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes of this Section 10, the “Net BenefitParachute Value” shall mean of a Payment means the present value as of the 280G Payments net date of all federalthe Change in Control of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 shall be made in a manner as determined by the Corporation that is consistent with Determination Firm for purposes of determining whether and to what extent the requirements of Section 409A. Excise Tax will apply to such Payment. (b) All calculations and determinations required to be made under this Section 5.9 10, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, shall be made by an independent accounting firm or independent tax counsel appointed compensation consulting firm selected by the Corporation Employer (the “Tax CounselDetermination Firm”) whose determinations which shall provide detailed supporting calculations both to Employer and Employee within 15 business days after the receipt of notice from Employee that a Payment is due to be made, or such earlier time as is requested by Employer. All fees and expenses of the Determination Firm shall be conclusive borne solely by Employer. Any determination by the Determination Firm shall be binding upon Employer and binding on Employee. As a result of the Corporation and Executive for all purposes. For purposes of making the calculations and determinations required by this Section 5.9, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments which Employee was entitled to, but did not receive pursuant to Section 10, could have been made without the imposition of the Excise Tax (“Underpayment”), consistent with the calculations required to be made hereunder. In such event, the Determination Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Employer to or for the benefit of Employee but no later than March 15 of the year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. (c) In the event that the provisions of Code Section 280G and Section 4999 of the Code. The Corporation and Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under or any successor provisions are repealed without succession, this Section 5.9. The Corporation 10 shall bear all costs the Tax Counsel may reasonably incur in connection with its servicesbe of no further force or effect.”

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 of the payments amount payable to or benefits received or to be received other benefit receivable by Executive (hereunder, including, without limitation, any payment excise tax imposed by Section 4999 of the Code; provided, however, that any such amount or benefits received in connection with benefit deemed to be a Change in Control Parachute Payment (as defined below) alone or Executive’s termination of employment, whether pursuant when added to the terms of this Agreement or any other amount payable or paid to or other benefit receivable or received by Executive which is deemed to constitute a Parachute Payment (whether or not under an existing plan, arrangement or other agreement), or otherwise) and would result in the imposition on Executive of an excise tax under Section 4999 of the Code, (all such payments collectively referred to herein as the amounts and benefits being hereinafter called “280G Total Payments”) constitute “parachute payments” within shall be reduced to the meaning of Section 280G of the Code and would, but for this Section 5.9, extent necessary so that no portion thereof shall be subject to the excise tax imposed under by Section 4999 of the Internal Revenue Code but only if, by reason of 1986, as amended (the “Code” and such taxreduction, the net after-tax benefit received by the Executive shall exceed the net after-tax benefit received by the Executive if no such reduction was made. For purposes of this Section 3.3, “Excise Tax”), then prior to making the 280G Payments, a calculation net after-tax benefit” shall be made comparing mean (i) the Net Benefit (as defined below) total of all payments and the value of all benefits which the Executive receives or is then entitled to Executive of receive from the 280G Payments after payment of the Excise Tax to Company that would constitute Parachute Payments, less (ii) the Net Benefit to Executive if the 280G Payments are limited amount of all federal, state and local income taxes payable with respect to the extent necessary to avoid being subject foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to the Excise Tax. Only if 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 calculated under of applicable employment taxes, less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above is less than the amount under (ii) above will the 280G Payments be reduced to the minimum extent necessary to ensure that no portion of the 280G Payments is subject to the Excise Tax. “Net Benefit” shall mean the present value of the 280G Payments net of all federal, state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 shall be made in a manner determined by the Corporation that is consistent with the requirements of Section 409A. All calculations and determinations under this Section 5.9 shall be made by an independent accounting firm or independent tax counsel appointed by the Corporation (the “Tax Counsel”) whose determinations shall be conclusive and binding on the Corporation and Executive for all purposes. For purposes of making the calculations and determinations required by this Section 5.9, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Corporation and Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under For purposes of this Section 5.9. The Corporation 3.3, “Parachute Payment” shall bear all costs mean a “parachute payment” as defined in Section 280G of the Tax Counsel may reasonably incur in connection with its servicesCode.

Code Section 280G. (a) If any of the payments or benefits received or to be received by the Executive (including, without limitation, any payment or benefits received in connection with a Change in Control or the Executive’s termination of employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section Code section 280G of the Code and would, but for this Section 5.9, will be subject to the excise tax imposed under Section Code section 4999 of the Internal Revenue Code of 1986, as amended (the “Code” and such tax, the “Excise Tax”), then prior to making the such 280G Payments, a calculation Payments shall be made comparing reduced by the minimum amount required so that no amount payable to the Executive will be subject to the Excise Tax (i) with the Net Benefit cash severance under this Agreement to be reduced first and with any further reductions that may be required to be determined by Tax Counsel (as defined below) to Executive of the 280G Payments after payment of the Excise Tax to (ii) the Net Benefit to Executive if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the 280G Payments be reduced to the minimum extent necessary to ensure that no portion of the 280G Payments is subject to the Excise Tax. “Net Benefit” shall mean the present value of the 280G Payments net of all federal, state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 shall be made in a manner determined by that minimizes the Corporation that is consistent with impact to the requirements of Section 409A. Executive). (b) All calculations and determinations under this Section 5.9 shall be made by an independent accounting firm or independent tax counsel appointed by the Corporation Bank (the “Tax Counsel”) whose determinations shall be conclusive and binding on the Corporation Bank and the Executive for all purposes. For purposes of making the calculations and determinations required by this Section 5.9, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section Code sections 280G and Section 4999 of the Code4999. The Corporation Bank and the Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section 5.9. The Corporation Bank shall bear all costs the Tax Counsel may reasonably incur in connection with its services. (c) The Bank’s obligations under this Section shall not be conditioned upon the Executive’s termination of employment. By way of example, in the event of a Change in Control that does not result in Executive’s termination of employment or entitlement to severance benefits under this Agreement, but which causes the accelerated vesting of any shares of restricted stock, stock options or other awards issued to the Executive giving rise to an Excise Tax, the Bank’s obligations under this Section shall apply with respect to such accelerated vesting.

Code Section 280G. If 1Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any benefit, payment or distribution by the Company to or for the benefit of the payments or benefits received or to be received by Executive (including, without limitation, any payment whether payable or benefits received in connection with a Change in Control or Executive’s termination of employment, whether distributable pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such benefits, payments collectively or distributions are hereinafter referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 5.9if paid, be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code” and such tax, the “Excise Tax”)) imposed by Code Section 4999, then prior to the making of any of the 280G PaymentsPayments to the Executive, a calculation shall be made comparing (i) the Net Benefit (as defined below) net benefit to Executive the Executive, of the 280G Payments after payment of the Excise Tax Tax, to (ii) the Net Benefit net benefit to Executive the Executive, if the 280G Payments are had been limited to the extent necessary to avoid being subject to the Excise Tax. Only if If the amount calculated under (i) above is less than the amount calculated under (ii) above will above, then the 280G Payments shall be reduced limited to the minimum extent necessary to ensure that no portion of the 280G Payments is avoid being subject to the Excise TaxTax (the “Reduced Amount”). “Net Benefit” shall mean the present value The reduction of the 280G Payments net of all federaldue hereunder, stateif applicable, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 shall be made in a manner determined by the Corporation that is consistent with the requirements of Section 409A. All calculations and determinations under this Section 5.9 shall be made by an independent accounting firm or independent tax counsel appointed first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the change of control, as determined by the Corporation Determination Firm (the “Tax Counsel”as defined in subsection (b) whose determinations shall be conclusive and binding on the Corporation and Executive for all purposesbelow). For purposes of making the calculations and determinations required by this Section 5.96, present value shall be determined in accordance with Code Section 280G(d)(4). For purposes of this Section 6, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning “Parachute Value” of a Payment means the application of Section 280G and Section 4999 present value as of the Code. The Corporation date of the change of control of the portion of such Payment that constitutes a “parachute payment” under Code Section 280G(b)(2), as determined by the Determination Firm for purposes of determining whether and Executive shall furnish to what extent the Excise Tax Counsel with will apply to such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section 5.9. The Corporation shall bear all costs the Tax Counsel may reasonably incur in connection with its servicesPayment.

Code Section 280G. If (a) Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any of the payments or benefits received or to be received by Executive (includingbenefit, without limitation, any payment or benefits received in connection with a Change in Control distribution by the Corporation to or Executive’s termination for the benefit of employment, Employee (whether payable or distributable pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such benefits, payments collectively or distributions are hereinafter referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 5.9if paid, be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code” and such tax, the “Excise Tax”)) imposed by Section 4999 of the Code, then then, prior to the making the 280G Paymentsof any Payments to Employee, a calculation shall be made comparing (i) the Net Benefit (as defined below) net after-tax benefit to Executive Employee of the 280G Payments after payment by Employee of the Excise Tax Tax, to (ii) the Net Benefit net after-tax benefit to Executive Employee if the 280G Payments are had been limited to the extent necessary to avoid being subject to the Excise Tax. Only if If the amount calculated under (i) above is less than the amount calculated under (ii) above will above, then the 280G Payments shall be reduced limited to the minimum extent necessary to ensure that no portion of the 280G Payments is avoid being subject to the Excise TaxTax (the “Reduced Amount”). “Net Benefit” shall mean the present value The reduction of the 280G Payments net of all federaldue hereunder, stateif applicable, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 shall be made in a manner determined by the Corporation that is consistent with the requirements of Section 409A. All calculations and determinations under this Section 5.9 shall be made by an independent accounting firm or independent tax counsel appointed first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the change of control, as determined by the Corporation Determination Firm (the “Tax Counsel”as defined in Section 9(b) whose determinations shall be conclusive and binding on the Corporation and Executive for all purposesbelow). For purposes of making the calculations and determinations required by this Section 5.99, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of present value shall be determined in accordance with Section 280G and Section 4999 280G(d)(4) of the Code. The Corporation and Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under For purposes of this Section 5.9. The Corporation shall bear all costs 9, the “Parachute Value” of a Payment means the present value as of the date of the change of control of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax Counsel may reasonably incur in connection with its serviceswill apply to such Payment.

Code Section 280G. If (a) Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any benefit, payment or distribution by Employer to or for the benefit of the payments or benefits received or to be received by Executive (including, without limitation, any payment whether payable or benefits received in connection with a Change in Control or Executive’s termination of employment, whether distributable pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such benefits, payments collectively or distributions are hereinafter referred to herein as the “280G Payments”) constitute would, if paid, be subject to the excise tax (the “parachute payments” within Excise Tax”) imposed by Section 4999 of the meaning Code, then the aggregate present value of the Payments shall be reduced (but not below zero) to an amount expressed in present value that maximizes the aggregate present value of the Payments without causing the Payments or any part thereof to be subject to the Excise Tax and therefore nondeductible by Employer because of Section 280G of the Code and would, but for this Section 5.9, be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Reduced Amount”). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the change of control, as determined by the Determination Firm (as defined in Section 10(b) below). For purposes of this Section 10, present value shall be determined in accordance with Section 280G(d)(4) of the Code” and such tax. For purposes of this Section 10, the “Excise Tax”), then prior to making Parachute Value” of a Payment means the 280G Payments, a calculation shall be made comparing (i) the Net Benefit (present value as defined below) to Executive of the 280G Payments after payment date of the change of control of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to such Payment. (iib) the Net Benefit All determinations required to Executive if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the 280G Payments be reduced to the minimum extent necessary to ensure that no portion of the 280G Payments is subject to the Excise Tax. “Net Benefit” shall mean the present value of the 280G Payments net of all federal, state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 shall be made in a manner determined by the Corporation that is consistent with the requirements of Section 409A. All calculations and determinations under this Section 5.9 10, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, shall be made by an independent accounting firm or independent tax counsel appointed by the Corporation compensation consulting firm mutually acceptable to Employer and Executive (the “Tax CounselDetermination Firm”) whose determinations which shall provide detailed supporting calculations both to Employer and Executive within 15 business days of the receipt of notice from Executive that a Payment is due to be made, or such earlier time as is requested by Employer. All fees and expenses of the Determination Firm shall be conclusive borne solely by Employer. Any determination by the Determination Firm shall be binding upon Employer and binding on Executive. As a result of the Corporation and Executive for all purposes. For purposes of making the calculations and determinations required by this Section 5.9, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning uncertainty in the application of Section 280G and Section 4999 of the CodeCode at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments hereunder will have been unnecessarily limited by this Section 10 (“Underpayment”), consistent with the calculations required to be made hereunder. The Corporation Determination Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Employer to or for the benefit of Executive shall furnish together with interest at the Tax Counsel with applicable Federal rate provided for in Section 7872(f)(2) of the Code, but no later than March 15 of the year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section 5.9. The Corporation shall bear all costs the Tax Counsel may reasonably incur in connection with its servicesUnderpayment arises.

Code Section 280G. If any of (a) Notwithstanding anything in this Agreement to the payments or benefits received or to contrary, in the event it shall be received by Executive (including, without limitation, determined that any payment or benefits received in connection with a Change in Control distribution by Employer to or Executive’s termination for the benefit of employment, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such benefits, payments collectively or distributions are hereinafter referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 5.9if paid, be subject to the excise tax imposed under by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code” and such tax, the “Excise Tax”), then then, prior to the making the 280G Paymentsof any Payments to Executive, a calculation shall be made comparing (iX) the Net Benefit (as defined below) net after-tax benefit to Executive of the 280G Payments after payment by Executive of the Excise Tax Tax, to (iiY) the Net Benefit net after-tax benefit to Executive if the 280G Payments are had been limited to the extent necessary to avoid being subject to the Excise Tax. Only if If the amount calculated under (iX) above is less than the amount calculated under (iiY) above will above, then the 280G Payments shall be reduced limited to the minimum extent necessary to ensure that no portion of the 280G Payments is avoid being subject to the Excise TaxTax (the “Reduced Amount”). “Net Benefit” shall mean the present value The reduction of the 280G Payments net of all federaldue hereunder, stateif applicable, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 shall be made in a manner determined by the Corporation that is consistent with the requirements of Section 409A. All calculations and determinations under this Section 5.9 shall be made by an independent accounting firm or independent tax counsel appointed first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value (as defined below) to actual present value of such Payments as of the date of the Change in Control, as determined by the Corporation Determination Firm (the “Tax Counsel”as defined in Section 10(b)(ii)) whose determinations shall be conclusive and binding on the Corporation and Executive for all purposesbelow). For purposes of making the calculations and determinations required by this Section 5.910, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of present value shall be determined in accordance with Section 280G and Section 4999 280G(d)(4) of the Code. The Corporation and Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under For purposes of this Section 5.9. The Corporation shall bear all costs 10, the “Parachute Value” of a Payment means the present value as of the date of the Change in Control of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax Counsel may reasonably incur in connection with its serviceswill apply to such Payment.

Code Section 280G. If any of (a) In the payments or benefits received or to event it shall be received by Executive (including, without limitation, determined that any payment or benefits received distribution to you or for your benefit which is in connection with the nature of compensation and is contingent on a Change change in Control the ownership or Executive’s termination effective control of employmentthe Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), whether paid or payable pursuant to this letter or otherwise (a "Payment"), would constitute a "parachute payment" under Section 280G(b)(2) of the terms Code 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 received by you shall exceed the net after-tax benefit received by you if no such reduction was made. For purposes of this Agreement Section 8(a), "net after-tax benefit" shall mean (i) the Payments which you receive or any other plan, arrangement or agreement, or otherwise) (all such payments collectively referred are then entitled to herein as receive from the “280G Payments”) Company that would constitute “"parachute payments” " within the meaning of Section 280G of the Code and wouldCode, but for this Section 5.9, be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code” and such tax, the “Excise Tax”), then prior to making the 280G Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to Executive of the 280G Payments after payment of the Excise Tax to less (ii) the Net Benefit to Executive if the 280G Payments are limited amount of all federal, state and local income taxes payable with respect to the extent necessary Payments calculated at the maximum marginal income tax rate for each year in which the Payments shall be paid to avoid being 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 imposed with respect to the Payments. (b) All determinations required to be made under this Section 8 shall be made by 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"), provided, that the Accounting Firm's determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination, together with detailed supporting calculations and documentation, to you and the Company within 15 business days following the date of termination of your employment, if applicable, or such other time as requested by you (provided that you reasonably believe that any of the Payments may be subject to the Excise Tax) or the Company. Only if the amount calculated under (i) above is less than the amount under (ii) above will the 280G Payments be reduced to the minimum extent necessary to ensure that no portion All fees and expenses of the 280G Payments is subject to the Excise Tax. “Net Benefit” shall mean the present value of the 280G Payments net of all federal, state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 Accounting Firm shall be made in a manner determined borne solely by the Corporation that is consistent with the requirements of Section 409A. All calculations and determinations under this Section 5.9 shall be made by an independent accounting firm or independent tax counsel appointed by the Corporation (the “Tax Counsel”) whose determinations shall be conclusive and binding on the Corporation and Executive for all purposes. For purposes of making the calculations and determinations required by this Section 5.9, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Corporation and Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section 5.9. The Corporation shall bear all costs the Tax Counsel may reasonably incur in connection with its servicesCompany.

Code Section 280G. If any of (a) In the payments or benefits received or to event it shall be received by Executive (including, without limitation, determined that any payment or benefits received distribution to you or for your benefit which is in connection with the nature of compensation and is contingent on a Change change in Control the ownership or Executive’s termination effective control of employmentthe Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), whether paid or payable pursuant to this letter or otherwise (a “Payment”), would constitute a “parachute payment” under Section 280G(b)(2) of the terms Code 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 received by you shall exceed the net after-tax benefit 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 Agreement Section 8(a), “net after-tax benefit” shall mean (i) the Payments which you receive or any other plan, arrangement or agreement, or otherwise) (all such payments collectively referred are then entitled to herein as receive from the “280G Payments”) Company that would constitute “parachute payments” within the meaning of Section 280G of the Code and wouldCode, but for this Section 5.9, be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code” and such tax, the “Excise Tax”), then prior to making the 280G Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to Executive of the 280G Payments after payment of the Excise Tax to less (ii) the Net Benefit to Executive if the 280G Payments are limited amount of all federal, state and local income taxes payable with respect to the extent necessary Payments calculated at the maximum marginal income tax rate for each year in which the Payments shall be paid to avoid being 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 imposed with respect to the Payments. (b) All determinations required to be made under this Section 8 shall be made by 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”), provided, that the Accounting Firm’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination, together with detailed supporting calculations and documentation, to you and the Company within 15 business days following the date of termination of your employment, if applicable, or such other time as requested by you (provided that you reasonably believe that any of the Payments may be subject to the Excise Tax) or the Company. Only if the amount calculated under (i) above is less than the amount under (ii) above will the 280G Payments be reduced to the minimum extent necessary to ensure that no portion All fees and expenses of the 280G Payments is subject to the Excise Tax. “Net Benefit” shall mean the present value of the 280G Payments net of all federal, state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 Accounting Firm shall be made in a manner determined borne solely by the Corporation that is consistent with the requirements of Section 409A. All calculations and determinations under this Section 5.9 shall be made by an independent accounting firm or independent tax counsel appointed by the Corporation (the “Tax Counsel”) whose determinations shall be conclusive and binding on the Corporation and Executive for all purposes. For purposes of making the calculations and determinations required by this Section 5.9, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Corporation and Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section 5.9. The Corporation shall bear all costs the Tax Counsel may reasonably incur in connection with its servicesCompany.

Code Section 280G. If 10.1 Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any benefit, payment or distribution by the Company to or for the benefit of the payments or benefits received or to be received by Executive (including, without limitation, any payment whether payable or benefits received in connection with a Change in Control or Executive’s termination of employment, whether distributable pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such benefits, payments collectively or distributions are hereinafter referred to herein as the “280G Payments”) constitute would, if paid, be subject to the excise tax (the “parachute payments” within Excise Tax”) imposed by Section 4999 of the meaning Code, then the aggregate present value of the Payments shall be reduced (but not below zero) to an amount expressed in present value that maximizes the aggregate present value of the Payments without causing the Payments or any part thereof to be subject to the Excise Tax and therefore nondeductible by the Company because of Section 280G of the Code and would, but for this Section 5.9, be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Reduced Amount”). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the change of control, as determined by the Determination Firm (as defined in subsection (b) below). For purposes of this Section 10, present value shall be determined in accordance with Section 280G(d)(4) of the Code” and such tax. For purposes of this Section 10, the “Excise Tax”), then prior to making Parachute Value” of a Payment means the 280G Payments, a calculation shall be made comparing (i) the Net Benefit (present value as defined below) to Executive of the 280G Payments after payment date of the change of control of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Determination Firm for purposes of determining whether and to what extent the Excise Tax will apply to (ii) the Net Benefit such Payment. 10.2 All determinations required to Executive if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the 280G Payments be reduced to the minimum extent necessary to ensure that no portion of the 280G Payments is subject to the Excise Tax. “Net Benefit” shall mean the present value of the 280G Payments net of all federal, state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 shall be made in a manner determined by the Corporation that is consistent with the requirements of Section 409A. All calculations and determinations under this Section 5.9 10, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, shall be made by an independent independent, nationally recognized accounting firm or independent tax counsel appointed by compensation consulting firm mutually acceptable to the Corporation Company and the Executive (the “Tax CounselDetermination Firm”) whose determinations which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the receipt of notice from the Executive that a Payment is due to be made, or such earlier time as is requested by the Company. All fees and expenses of the Determination Firm shall be conclusive borne solely by the Company. Any determination by the Determination Firm shall be binding upon the Company and binding on the Corporation and Executive for all purposesExecutive. For purposes As a result of making the calculations and determinations required by this Section 5.9, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments hereunder will have been unnecessarily limited by this Section 10 (“Underpayment”), consistent with the calculations required to be made hereunder. The Determination Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code, but no later than March 15 of the year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. 10.3 In the event that the provisions of Code Section 280G and Section 4999 of the Code. The Corporation and Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under or any successor provisions are repealed without succession, this Section 5.9. The Corporation 10 shall bear all costs the Tax Counsel may reasonably incur in connection with its servicesbe of no further force or effect.

Code Section 280G. If 6.1 Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any benefit, payment or distribution by the Company to or for the benefit of the payments or benefits received or to be received by Executive (including, without limitation, any payment whether payable or benefits received in connection with a Change in Control or Executive’s termination of employment, whether distributable pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such benefits, payments collectively or distributions are hereinafter referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 5.9if paid, be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code” and such tax, the “Excise Tax”)) imposed by Code Section 4999, then prior to the making of any of the 280G PaymentsPayments to the Executive, a calculation shall be made comparing (i) the Net Benefit (as defined below) net benefit to Executive the Executive, of the 280G Payments after payment of the Excise Tax Tax, to (ii) the Net Benefit net benefit to Executive the Executive, if the 280G Payments are had been limited to the extent necessary to avoid being subject to the Excise Tax. Only if If the amount calculated under (i) above is less than the amount calculated under (ii) above will above, then {OR055187.DOCX; 3} the 280G Payments shall be reduced limited to the minimum extent necessary to ensure that no portion of the 280G Payments is avoid being subject to the Excise TaxTax (the “Reduced Amount”). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the change of control, as determined by the Determination Firm (as defined in subsection (b) below). For purposes of this Section 6, present value shall be determined in accordance with Code Section 280G(d)(4). For purposes of this Section 6, the “Net BenefitParachute Value” shall mean of a Payment means the present value as of the 280G Payments net date of all federalthe change of control of the portion of such Payment that constitutes a “parachute payment” under Code Section 280G(b)(2), state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 shall be made in a manner as determined by the Corporation that is consistent with Determination Firm for purposes of determining whether and to what extent the requirements of Section 409A. Excise Tax will apply to such Payment. 6.2 All calculations and determinations required to be made under this Section 5.9 6, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, shall be made by an independent independent, nationally recognized accounting firm or independent tax counsel appointed by compensation consulting firm mutually acceptable to the Corporation Company and the Executive (the “Tax CounselDetermination Firm”) whose determinations which shall provide detailed supporting calculations both to the Company and the Executive within 15 days of the receipt of notice from the Executive that a Payment is due to be made, or such earlier time as is requested by the Company. All fees and expenses of the Determination Firm shall be conclusive borne solely by the Company. Any determination by the Determination Firm shall be binding upon the Company and binding on the Corporation and Executive for all purposesExecutive. For purposes As a result of making the calculations and determinations required uncertainty in the application of Code Section 4999 at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments hereunder will have been unnecessarily limited by this Section 5.96 (“Underpayment”), consistent with the Tax Counsel may rely on reasonablecalculations required to be made hereunder. The Determination Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive together with interest at the applicable Federal rate provided for in Code Section 7872(f)(2), good faith assumptions and approximations concerning but no later than March 15 of the application year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. 6.3 In the event that the provisions of Code Section 280G and Section 4999 of the Code. The Corporation and Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under or any successor provisions are repealed without succession, this Section 5.9. The Corporation 6 shall bear all costs the Tax Counsel may reasonably incur in connection with its servicesbe of no further force or effect.

Code Section 280G. If any of (a) Notwithstanding anything in this Agreement to the payments or benefits received or to contrary, in the event it shall be received by Executive (including, without limitation, determined that any payment or benefits received in connection with a Change in Control distribution by Employer to or Executive’s termination for the benefit of employment, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such benefits, payments collectively or distributions are hereinafter referred to herein as the “280G "Payments”") constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 5.9if paid, be subject to the excise tax imposed under by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code” and such tax, the “"Excise Tax”"), then then, prior to the making the 280G Paymentsof any Payments to Executive, a calculation shall be made comparing (iX) the Net Benefit (as defined below) net after-tax benefit to Executive of the 280G Payments after payment by Executive of the Excise Tax to Tax, 10 (iiY) the Net Benefit net after-tax benefit to Executive if the 280G Payments are had been limited to the extent necessary to avoid being subject to the Excise Tax. Only if If the amount calculated under (iX) above is less than the amount calculated under (iiY) above will above, then the 280G Payments shall be reduced limited to the minimum extent necessary to ensure that no portion of the 280G Payments is avoid being subject to the Excise TaxTax (the "Reduced Amount"). “Net Benefit” The reduction of the Payments due hereunder, if applicable, shall mean bc made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value (as defined below) to actual present value of such Payments as of the date of the Change in Control, as determined by the Determination Firm (as defined in Section IO(b)(ii)) below). For purposes of this Section 10, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes of this Section 10, the "Parachute Value" of a Payment means the present value as of the 280G Payments net date of all federalthe Change in Control of the portion of such Payment that constitutes a "parachute payment" under Section 280G(b)(2) of the Code, state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 shall be made in a manner as determined by the Corporation that is consistent with Determination Firm for purposes of determining whether and to what extent the requirements of Section 409A. Excise Tax will apply to such Payment. (b) All calculations and determinations required to be made under this Section 5.9 10, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, shall be made by an independent accounting firm or independent tax counsel appointed compensation consulting firm selected by Employer (the "Determination Firm") which shall provide detailed supporting calculations both to Employer and Executive within 1 5 business days after the receipt of notice from Executive that a Payment is due to be made, or such earlier time as is requested by Employer. All fees and expenses of the Determination Firm shall be borne solely by Employer. Any determination by the Corporation (the “Tax Counsel”) whose determinations Determination Firm shall be conclusive binding upon Employer and binding on Executive. As a result of the Corporation and Executive for all purposes. For purposes of making the calculations and determinations required by this Section 5.9, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments which Executive was entitled to, but did not receive pursuant to Section 10, could have been made without the imposition of the Excise Tax ("Underpayment"), consistent with the calculations required to bc made hereunder. In such event, the Determination Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Employer to or for the benefit of Executive but no later than March 15 of the year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. (c) In the event that the provisions of Code Section 280G and Section 4999 of the Code. The Corporation and Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under or any successor provisions are repealed without succession, this Section 5.9. The Corporation 10 shall bear all costs the Tax Counsel may reasonably incur in connection with its servicesbe of no further force or effect.

Code Section 280G. If 6.1 Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any benefit, payment or distribution by the Company to or for the benefit of the payments or benefits received or to be received by Executive (including, without limitation, any payment whether payable or benefits received in connection with a Change in Control or Executive’s termination of employment, whether distributable pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such benefits, payments collectively or distributions are hereinafter referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 5.9if paid, be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code” and such tax, the “Excise Tax”)) imposed by Code Section 4999, then prior to the making of any of the 280G PaymentsPayments to the Executive, a calculation shall be made comparing (i) the Net Benefit (as defined below) net benefit to Executive the Executive, of the 280G Payments after payment of the Excise Tax Tax, to (ii) the Net Benefit net benefit to Executive the Executive, if the 280G Payments are had been limited to the extent necessary to avoid being subject to the Excise Tax. Only if If the amount calculated under (i) above is less than the amount calculated under (ii) above will above, then {OR055508.DOCX; 1} the 280G Payments shall be reduced limited to the minimum extent necessary to ensure that no portion of the 280G Payments is avoid being subject to the Excise TaxTax (the “Reduced Amount”). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the change of control, as determined by the Determination Firm (as defined in subsection (b) below). For purposes of this Section 6, present value shall be determined in accordance with Code Section 280G(d)(4). For purposes of this Section 6, the “Net BenefitParachute Value” shall mean of a Payment means the present value as of the 280G Payments net date of all federalthe change of control of the portion of such Payment that constitutes a “parachute payment” under Code Section 280G(b)(2), state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 shall be made in a manner as determined by the Corporation that is consistent with Determination Firm for purposes of determining whether and to what extent the requirements of Section 409A. Excise Tax will apply to such Payment. 6.2 All calculations and determinations required to be made under this Section 5.9 6, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, shall be made by an independent independent, nationally recognized accounting firm or independent tax counsel appointed by compensation consulting firm mutually acceptable to the Corporation Company and the Executive (the “Tax CounselDetermination Firm”) whose determinations which shall provide detailed supporting calculations both to the Company and the Executive within 15 days of the receipt of notice from the Executive that a Payment is due to be made, or such earlier time as is requested by the Company. All fees and expenses of the Determination Firm shall be conclusive borne solely by the Company. Any determination by the Determination Firm shall be binding upon the Company and binding on the Corporation and Executive for all purposesExecutive. For purposes As a result of making the calculations and determinations required uncertainty in the application of Code Section 4999 at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments hereunder will have been unnecessarily limited by this Section 5.96 (“Underpayment”), consistent with the Tax Counsel may rely on reasonablecalculations required to be made hereunder. The Determination Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive together with interest at the applicable Federal rate provided for in Code Section 7872(f)(2), good faith assumptions and approximations concerning but no later than March 15 of the application year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. 6.3 In the event that the provisions of Code Section 280G and Section 4999 of the Code. The Corporation and Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under or any successor provisions are repealed without succession, this Section 5.9. The Corporation 6 shall bear all costs the Tax Counsel may reasonably incur in connection with its servicesbe of no further force or effect.

Code Section 280G. If (a) Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any of the payments or benefits received or to be received by Executive (includingbenefit, without limitation, any payment or benefits received in connection with a Change in Control distribution by the Corporation to or Executive’s termination for the benefit of employment, Employee (whether payable or distributable pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such benefits, payments collectively or distributions are hereinafter referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 5.9if paid, be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code” and such tax, the “Excise Tax”)) imposed by Section 4999 of the Code, then then, prior to the making the 280G Paymentsof any Payments to Employee, a calculation shall be made comparing (i) the Net Benefit (as defined below) net after-tax benefit to Executive Employee of the 280G Payments after payment by Employee of the Excise Tax Tax, to (ii) the Net Benefit net after-tax benefit to Executive Employee if the 280G Payments are had been limited to the extent necessary to avoid being subject to the Excise Tax. Only if If the amount calculated under (i) above is less than the amount calculated under (ii) above will above, then the 280G Payments shall be reduced limited to the minimum extent necessary to ensure that no portion of the 280G Payments is avoid being subject to the Excise TaxTax (the “Reduced Amount”). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the change of control, as determined by the Determination Firm (as defined in Section 9(b) below). For purposes of this Section, present value shall be determined in accordance with Section 280G(d)(4) of the Code. For purposes of this Section 9, the “Net BenefitParachute Value” shall mean of a Payment means the present value as of the 280G Payments net date of all federalthe change of control of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 shall be made in a manner as determined by the Corporation that is consistent with Determination Firm for purposes of determining whether and to what extent the requirements of Section 409A. Excise Tax will apply to such Payment. (b) All calculations and determinations required to be made under this Section 5.9 Section, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, shall be made by an independent independent, nationally recognized accounting firm or independent tax counsel appointed by compensation consulting firm mutually acceptable to the Corporation and Employee (the “Tax CounselDetermination Firm”) whose determinations which shall be conclusive and binding on provide detailed supporting calculations both to the Corporation and Executive for all purposesEmployee within 15 business days of the receipt of notice from Employee that a Payment is due to be made, or such earlier time as is requested by the Corporation. For purposes All fees and expenses of making the calculations Determination Firm shall be borne solely by the Corporation. Any determination by the Determination Firm shall be binding upon the Corporation and determinations required by this Section 5.9, Employee. As a result of the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning uncertainty in the application of Section 280G and Section 4999 of the CodeCode at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments hereunder will have been unnecessarily limited by this Section (“Underpayment”), consistent with the calculations required to be made hereunder. The Determination Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Corporation and Executive shall furnish to or for the Tax Counsel benefit of Employee together with interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code, but no later than March 15 of the year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section 5.9. The Corporation shall bear all costs the Tax Counsel may reasonably incur in connection with its servicesUnderpayment arises.

Code Section 280G. If To the extent that any of amount payable to you hereunder, when combined with any other payment or benefit (collectively, the payments or benefits received or to be received by Executive (including“Payments”, which shall include, without limitation, the vesting of any payment equity awards or benefits received in connection with other non-cash benefit or property) that could be considered a Change in Control or Executive’s termination of employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such payments collectively referred to herein as the “280G Payments”) constitute “parachute paymentspayment,” within the meaning of as such term is defined under Section 280G of the Code and would, but for this Section 5.9, be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code” and such tax, the “Excise Tax”), then prior to making exceed the limitations of Section 280G Paymentsof the Code such that an excise tax will be imposed under Section 4999 of the Code, a calculation the Payments shall be made comparing either (ia) reduced (but not below zero) so that the Net Benefit present value of such total Payments received by you will be one dollar ($1.00) less than three times your “base amount” (as defined belowin Section 280G(b)(3) to Executive of the 280G Payments after payment of the Excise Tax to (iiCode) the Net Benefit to Executive if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the 280G Payments be reduced to the minimum extent necessary to ensure and so that no portion of the 280G such Payments is received by you will be subject to the Excise Tax. “Net Benefit” shall mean the present value excise tax imposed by Section 4999 of the 280G Payments net of all federalCode, state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 such parachute payments shall be made reduced in a manner determined by the Corporation following order: (i) any portion of the cash severance payable hereunder that is consistent with not “nonqualified deferred compensation” for purposes of Code Section 409A, (ii) any benefits continuation valued as parachute payments, (iii) any accelerated vesting of any equity awards and (iv) any portion of the requirements cash severance payable hereunder and any other cash amounts that are “nonqualified deferred compensation” for purposes of Code Section 409A. All calculations 409A, or (b) paid in full, whichever of (a) or (b) produces the better net after tax position to you (taking into account any applicable excise tax under Section 4999 of the Code and determinations under this Section 5.9 shall be made by an independent accounting firm or independent tax counsel appointed by the Corporation (the “Tax Counsel”) whose determinations shall be conclusive and binding on the Corporation and Executive for all purposesany other applicable taxes). For purposes of making the calculations and determinations required by this Section 5.922, the Tax Counsel Company may engage an independent accounting firm or independent counsel to make such determinations, which shall be conclusive and binding on the Company and you, and such independent accounting firm or independent counsel may rely on reasonable, good faith assumptions and approximations concerning the application applicable of Section 280G and Section 4999 of the Code. The Corporation and Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section 5.9. The Corporation shall bear all costs the Tax Counsel may reasonably incur in connection with its services.

Code Section 280G. If 6.1 Notwithstanding anything in this Agreement to the contrary, in the event it shall be determined that any benefit, payment or distribution by the Company to or for the benefit of the payments or benefits received or to be received by Executive (including, without limitation, any payment whether payable or benefits received in connection with a Change in Control or Executive’s termination of employment, whether distributable pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such benefits, payments collectively or distributions are hereinafter referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 5.9if paid, be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code” and such tax, the “Excise Tax”)) imposed by Code Section 4999, then prior to the making of any of the 280G PaymentsPayments to the Executive, a calculation shall be made comparing (i) the Net Benefit (as defined below) net benefit to Executive the Executive, of the 280G Payments after payment of the Excise Tax Tax, to (ii) the Net Benefit net benefit to Executive the Executive, if the 280G Payments are had been limited to the extent necessary to avoid being subject to the Excise Tax. Only if If the amount calculated under (i) above is less than the amount calculated under (ii) above will above, then {OR055187.DOCX; 3} the 280G Payments shall be reduced limited to the minimum extent necessary to ensure that no portion of the 280G Payments is avoid being subject to the Excise TaxTax (the “Reduced Amount”). The reduction of the Payments due hereunder, if applicable, shall be made by first reducing cash Payments and then, to the extent necessary, reducing those Payments having the next highest ratio of Parachute Value to actual present value of such Payments as of the date of the change of control, as determined by the Determination Firm (as defined in subsection (b) below). For purposes of this Section 6, present value shall be determined in accordance with Code Section 280G(d)(4). For purposes of this Section 6, the “Net BenefitParachute Value” shall mean of a Payment means the present value as of the 280G Payments net date of all federalthe change of control of the portion of such Payment that constitutes a “parachute payment” under Code Section 280G(b)(2), state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 shall be made in a manner as determined by the Corporation that is consistent with Determination Firm for purposes of determining whether and to what extent the requirements of Section 409A. Excise Tax will apply to such Payment. 6.2 All calculations and determinations required to be made under this Section 5.9 6, including whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced Amount, and the assumptions to be utilized in arriving at such determinations, shall be made by an independent independent, nationally recognized accounting firm or independent tax counsel appointed by compensation consulting firm mutually acceptable to the Corporation Company and the Executive (the “Tax CounselDetermination Firm”) whose determinations which shall provide detailed supporting calculations both to the Company and the Executive within 15 days of the receipt of notice from the Executive that a Payment is due to be made, or such earlier time as is requested by the Company. All fees and expenses of the Determination Firm shall be conclusive borne solely by the Company. Any determination by the Determination Firm shall be binding upon the Company and binding on the Corporation and Executive for all purposesExecutive. For purposes As a result of making the calculations and determinations required uncertainty in the application of Code Section 4999 at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments hereunder will have been unnecessarily limited by this Section 5.96 (“Underpayment”), consistent with the Tax Counsel may rely on reasonablecalculations required to be made hereunder. The Determination Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive together with interest at the applicable Federal rate provided for in Code Section 7872(f)(2), good faith assumptions and approximations concerning but no later than March 15 of the application year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises. 6.3 In the event that the provisions of Code Section 280G and Section 4999 of the Code. The Corporation and Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under or any successor provisions are repealed without succession, this Section 5.96 shall be of no further force or effect. The Corporation shall bear all costs the Tax Counsel may reasonably incur in connection with its services.{OR055187.DOCX; 3}