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 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, any of its affiliates, any person who acquires ownership or control” effective control of the Company or ownership of a substantial portion of the Company’s assets (within the meaning of Code Section 280G G, as amended, and the regulations thereunder) or any affiliate of the Code)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 shall be payable either in (i) full or (ii) as to such lesser amount which would result in no portion of such reductionpayments or distributions being subject to the Excise Tax, whichever method provides you with the net greater payments or distributions on an after-tax benefit to Executive shall exceed basis. All mathematical determinations and all determinations of whether any of 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 Total Payments are “parachute payments” (within the meaning of Section section 280G of the Code) that are required to be made under this Section 6, less shall be made by the independent professionals retained by the Company (ii) the “Auditors”), who shall provide their determination (the “Determination”), together with detailed supporting calculations regarding the amount of all federalany relevant matters, state and local income taxes payable with respect both to the foregoing calculated at Company and to you within twenty (20) business days of your termination date, if applicable, or such earlier time as is requested by the maximum marginal income tax rate for each year in which Company or you. Any determination by the foregoing Auditors shall be paid to Executive (based on binding upon the rate in effect for such year as set forth in Company and you, absent manifest error. The Company shall pay the Code as in effect at the time fees and costs of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the Auditors. Any reduction in payments and and/or 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, 6 shall occur in his sole and absolute discretion, may determine which the following order: (i) reduction of cash payments in reverse chronological order such that the payment owed on the latest date following the occurrence of the Payments event triggering such Excise Tax shall be reduced the first payment to be reduced; and (ii) reduction of other benefits paid to you in reverse chronological order such that the extent necessary so that no portion thereof benefit owed on the latest date following the occurrence of the event triggering such Excise Tax shall be subject the first payment to be reduced. In the excise tax imposed by Section 4999 event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the Codedate of grant for your equity awards (i.e., and the Company shall pay such most recently granted equity awards are 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 Executivefirst).

Code Section 280G. If Anything in this Agreement to the contrary notwithstanding, prior to the payment of any compensation or benefits payable under this Agreement, the certified public accountants of Employer who served as accountants immediately prior to a change of control (the “Certified Public Accountants”) shall determine as promptly as practical and in any event within 20 business days following a change of control whether any payment or distribution by Employer to or for the benefit received of Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, any other plans or agreements or otherwise) would more likely than not be nondeductible by Employer for Federal income purposes because of Code section 280G; and if it is, then the aggregate present value of amounts payable or distributable to or for the benefit of Employee pursuant to this Agreement (such payments or distributions pursuant to this Agreement are thereinafter referred to as “Agreement Payments”) shall be reduced (but not below zero) to the Reduced Amount. For purposes of this Section, the “Reduced Amount” shall be an amount expressed in present value, which maximizes the aggregate present value of the Agreement Payments without causing any payment to be received nondeductible by Executive in connection with a “change in ownership or control” Employer because of the Company (within the meaning of said 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 . The reduction of the Company (Agreement Payments hereunder by the “Payments”), Reduction Amount shall be made by the Employer in such manner as to result in Employee receiving the greatest amount of after-tax benefits hereunder. If under this Section the Certified Public Accountants determine that any payment would constitute a “parachute payment” within the meaning more likely than not be nondeductible by Employer because of Section 280G of the Code, the Payments Employer shall be reduced promptly give Employee notice to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 effect and a copy of the Code but only if, by reason detailed calculation thereof and of such reduction, the net after-tax benefit to Executive shall exceed the net after-tax benefit to Executive if no such reduction was madeReduced Amount. For purposes of this Section, present value shall be determined in accordance with Section 12, “net after-tax benefit” 280G(d)(4) of the Code. All determinations made by the Certified Public Accountants shall mean be binding upon Employer and Employee. (i) As a result of the total of all payments and uncertainty in 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 application of Section 280G of the Code, less it is possible that Agreement Payments may have been made by Employer, which should not have been made (ii) “Overpayment”), in each case, consistent with 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 calculation 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 codeReduced Amount hereunder. 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 In the event that the Accounting Firm Certified Public Accountants, based upon the assertion of a deficiency by the Internal Revenue Service against Employer or Employee which said Certified Public Accountants believe 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 high probability of any or all amounts which may constitute “excess parachute payments.” If the Accounting Firm success, determines that an Overpayment has been made, any such reduction is required by this Overpayment shall be treated for all purposes as a loan to Employee which Employee shall repay to Employer together with interest at the applicable Federal rate provided for in Section 12, Executive, in his sole and absolute discretion, may determine which 7872(f)(2)(A) of the Payments Code; provided, however, that no amount shall be reduced payable by Employee to Employer in and to the extent necessary so that no portion thereof shall be such payment would not reduce the amount which is subject to the excise tax imposed by taxation under Section 4999 of the Code. In the event that the Certified Public Accountants, and based upon controlling precedent, determine that an Underpayment has occurred, any such Underpayment shall be promptly paid by Employer to or for the Company shall pay such reduced amount to Executive. Executive and benefit of Employee together with interest at the Company shall each provide the Accounting Firm access to and copies of any books, records, and documents applicable Federal rate provided for 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 Section 7872(f)(2)(A) 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 ExecutiveCode.

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 any payment or benefit received or to be received by Executive in connection with a “change in ownership or control” Employee would receive from the Company, Parent, any member of the Company (within the meaning of Section 280G of the Code)Parent Group, 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 Company, any acquirer of the Company, and/or pursuant to this Agreement , but determined without regard to any additional payment required under this section, (collectively, the “Payments280G Payment”), ) would (x) constitute a “parachute payment” within the meaning of Section 280G 2800 of the Code, the Payments shall be reduced to the extent necessary so that no portion thereof shall and (y) be subject to the excise tax imposed by Section 4999 of the Code but only ifor any interest or penalties payable with respect to such excise tax (such excise tax, by reason together with any such interest and penalties, are hereinafter collectively referred to as the “280G Excise Tax”), then such 2800 Payments shall be either (a) the full amount of such reduction2800 Payments or (b) such lesser amount (with cash payments being reduce first) as would, resulting no portion of flexible payments pending subject to 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 122800 Excise Tax, “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 whichever of the Codeforegoing amounts, less (ii) taking into account the amount of all applicable federal, state and local employment taxes, income taxes payable with respect and the 2800 Excise Tax, results in Employee’s receipt, on an after-tax basis, of the greater amount of the 2800 Payments notwithstanding that all or some portion of the 2800 Payments may be subject to the foregoing calculated at 2800 Excise Tax. The accounting firm engaged by the maximum marginal income tax rate Company for each year in which general audit purposes as of the day prior to the effective date of the change of control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is also service as accountant or auditor for the individual, entity or group which will control the Company upon the occurrence of a change of control, the Company 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 appoint a nationally recognized accounting firm (other than the “Accounting Firm”) selected accounting firm engaged by Executive and reasonably acceptable the Company for general audit purposes to make the determinations required hereunder. The Company shall bear all expenses with respect to the Company, provided, determinations by such accounting firm required to be made hereunder. The- Company shall request that the Accounting Firm’s determination shall be made based upon “substantial authority” within accounting firm engaged to make the meaning of Section 6662 of the Code. The Accounting Firm shall determinations hereunder provide Executive and its calculations, together with detailed supporting documentation, to the Company with its determinations and detailed supporting calculations with respect thereto at least 15 business Employee within thirty (30) days prior to after the date on which Executive would be entitled such accounting firm has been engaged to receive a Payment (make such determinations or such other time as soon as practicable in requested by 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 Company or all amounts which may constitute “excess parachute payments.” Employee. If the Accounting Firm accounting firm determines that such reduction no 2800 Excise Tax is required by this Section 12payable with respect to a 2800 Payment, 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 request that it furnish the Company and Employee with an opinion reasonably acceptable to Employee that no 2800 Excise Tax will be imposed with respect to such reduced amount to Executive2800 Payment. Executive Any good· faith determinations of the accounting firm made hereunder shall be final, binding, and conclusive upon the Company and Employee. Notwithstanding the foregoing, if the Internal Revenue Service determines that 2800 Excise Taxes are owed, the Company shall each provide promptly pay the Accounting Firm access 2800 Tax Restoration Payment 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 ExecutiveEmployee.

Code Section 280G. If In the event that it is determined that any payment payments or benefit received benefits provided under this Agreement, together with any payments or benefits to be received provided under any other plan, program, arrangement or agreement, would constitute parachute payments within the meaning of Section 280G of the Code and would, but for this Section 13 be subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (the “Excise Tax”), then the amounts of any such payments or benefits under this Agreement and such other arrangements shall be either (a) paid in full or (b) reduced to the minimum extent necessary to ensure that no portion of the payments or benefits is subject to the Excise Tax, whichever of the foregoing (a) or (b) results in the Executive’s receipt on an after-tax basis of the greatest amount of payments and benefits after taking into account the applicable federal, state, local and foreign income, employment and excise taxes (including the Excise Tax). The Company shall cooperate in good faith with the Executive in connection making such determination, including but not limited to providing the Executive with an estimate of any parachute payments as soon as reasonably practicable prior to an event constituting a “change in the ownership or control” effective control of the Company or in the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G 280G(b)(2)(A) of the Code), whether payable . Any such reduction pursuant to this Section 13 shall be made in a manner that results in the terms of this Agreement or any other plan, arrangement or agreement greatest economic benefit for the Executive and is consistent with the Company or an affiliate of the Company (the “Payments”), would constitute a “parachute payment” within the meaning requirements of Section 280G of the Code, the Payments 409A. Any determination required under this Section 13 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 made in which the foregoing shall be paid to Executive (based on the rate writing 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 good faith by a nationally recognized public accounting firm (the “Accounting Firm”) selected by mutual agreement of the Company and the 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 paid for its services in connection with the determinations and calculations contemplated by this Section 12 will be borne exclusively by the Company, . The Company and the balance of any Executive shall provide the accounting firm with such fees information and expensesdocuments as the accounting firm may reasonably request in order to make a determination under this Section 13.” 3. Except as amended herein, if any shall be borne exclusively by Executivethe Employment Agreement is hereby ratified and affirmed.

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 (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 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 (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 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 as constituted immediately prior to the above change in control (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 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 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 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 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 (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 1210(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 10 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, 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 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.