Common use of Golden Parachute Provisions Clause in Contracts

Golden Parachute Provisions. If Executive becomes entitled to the payments, benefits and equity acceleration described in Sections 3 and 4 and such payments and benefits, together with any other payments or transfers of property (collectively the “Severance Payments”), constitute “parachute” payments under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company shall pay an additional amount (the “Gross-Up Payment”) to Executive. The Gross-Up Payment shall be equal to the amount necessary so that the net amount retained by Executive, after subtracting the parachute excise tax imposed by Section 4999 of the Code, as amended, or any successor statute then in effect (the “Excise Tax”), and after also subtracting all federal, state or local income tax, FICA tax and Excise Tax on the Gross-Up Payment, shall be equal to the net amount Executive would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The amount of the Gross-Up Payment shall be determined in good faith by nationally recognized registered public accountants or tax counsel selected by the Company, who shall apply the following assumptions: (i) Executive shall be treated as paying federal income taxes at the highest marginal rate in the calendar year in which the Gross-Up Payment is made, and (ii) Executive shall be treated as paying state and local income taxes at the highest marginal rate(s) in the calendar year in which the Gross-Up Payment is made in the locality of Executive’s residence as of the effective date of Executive’s termination or resignation, net of the maximum reduction in federal income taxes that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall be made within five business days after the effective date of Executive’s termination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay Executive within that time an estimate, determined in good faith by the Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but in no event later than the 30th day after the effective date of Executive’s termination or resignation. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Executive within five business days after written demand. In all events, any Gross-Up Payment made pursuant to this Section 6 shall be paid to Executive no later than the end of the calendar year following the year in which the related taxes are remitted to the applicable taxing authority. If the actual Excise Tax imposed is less than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive shall repay at the time that the amount of the reduced Excise Tax is finally determined the portion of the Gross-Up Payment attributable to that reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax, FICA tax and federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by Executive, to the extent the repayment results in a reduction in or refund of Excise Tax, FICA tax or federal, state or local income tax), plus interest on the amount of the repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If the actual Excise Tax imposed is more than the amount that was taken into account in determining the amount of the Gross-Up Payment, the Company shall make an additional Gross-Up Payment in respect of such excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) at the time that the amount of the excess is finally determined.

Golden Parachute Provisions. If Executive becomes entitled (a) Anything in this Agreement to the paymentscontrary notwithstanding, if any payment or benefit to the Executive under this Agreement or otherwise would be a “golden parachute payment” or “indemnification payment” within the meaning of Section 18(k) of the Federal Deposit Insurance Act, such payment or benefit shall not be made unless permitted under (b) In the event that the benefits and equity acceleration described provided for in Sections 3 and 4 and such payments and benefitsthe Agreement, together when aggregated with any other payments or transfers of property benefits received by the Executive (collectively the “Severance PaymentsAggregate Benefits”), would (i) constitute “parachuteparachute payments” payments under within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended and (the “Code”), then the Company shall pay an additional amount (the “Gross-Up Payment”ii) to Executive. The Gross-Up Payment shall would be equal subject to the amount necessary so that the net amount retained by Executive, after subtracting the parachute excise tax imposed by Section 4999 of the Code, as amended, or any successor statute then in effect Code (the “Excise Tax”), and after also subtracting all federal, state or local income tax, FICA tax and Excise Tax on then the Gross-Up Payment, shall Executive’s Aggregate Benefits will be equal to the net amount Executive would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The amount of the Gross-Up Payment shall be determined in good faith by nationally recognized registered public accountants or tax counsel selected by the Company, who shall apply the following assumptionseither: (ia) Executive shall be treated delivered in full, or (b) delivered as paying federal income taxes at the highest marginal rate in the calendar year in which the Gross-Up Payment is made, and (ii) Executive shall be treated to such lesser extent as paying state and local income taxes at the highest marginal rate(s) in the calendar year in which the Gross-Up Payment is made in the locality of Executive’s residence as of the effective date of Executive’s termination or resignation, net of the maximum reduction in federal income taxes that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall be made within five business days after the effective date of Executive’s termination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay Executive within that time an estimate, determined in good faith by the Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but would result in no event later than the 30th day after the effective date of Executive’s termination or resignation. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Executive within five business days after written demand. In all events, any Gross-Up Payment made pursuant to this Section 6 shall be paid to Executive no later than the end of the calendar year following the year in which the related taxes are remitted to the applicable taxing authority. If the actual Excise Tax imposed is less than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive shall repay at the time that the amount of the reduced Excise Tax is finally determined the portion of the Gross-Up Payment attributable to that reduction (plus the portion of the Gross-Up Payment attributable such Aggregate Benefits being subject to the Excise Tax, FICA tax and whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Executive on an after- tax imposed basis of the greatest amount of Aggregate Benefits, notwithstanding that all or some portion of such Aggregate Benefits may be taxable under Section 4999 of the Code. Unless the Company and the Executive otherwise agree in writing, any determination required under this paragraph will be made in writing by an independent certified public accounting firm mutually agreeable to the Company and the Executive (the “Accounting Firm”) whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this paragraph, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive will furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably request in order to make a determination under this paragraph. To the extent any reduction in Aggregate Benefits is required by this paragraph, Aggregate Benefits shall be reduced or eliminated in reverse order of time of payment (that is, Aggregate Benefits payable later shall be reduced or eliminated before any reduction or elimination of Aggregate Benefits payable sooner), Aggregate Benefits payable at the same time shall be reduced or eliminated in accordance with the Executive’s instructions provided the Company has no reasonable objection thereto, and all reductions or eliminations shall be based on the portion value of the Gross-Up Payment being repaid Aggregate Benefits established for purposes of the determination required under this paragraph. All fees and expenses of the Accounting Firm shall be borne solely by Executivethe Company. (c) The provisions of this Agreement are subject to and shall be interpreted to be consistent with Applicable Law, which terms control over the terms of this Agreement in the event of a conflict between Applicable Law and this Agreement. Notwithstanding anything herein to the contrary, no payment or benefit shall be paid or provided to the Executive or be vested or accrued if any such payment or benefit, vesting or accrual would violate Applicable Law and, to the extent any such payment or benefit that has been paid, provided, vested or accrued is determined to be in violation of Applicable Law, any such payment or benefit shall be subject to recoupment or cancellation. In the repayment results in a reduction in or refund event of Excise Taxany such violation, FICA tax or federal, state or local income tax), plus interest on the amount of the repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If the actual Excise Tax imposed is more than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive and the Company shall make an additional Gross-Up Payment cooperate in respect good faith to endeavor to meet the requirements of such excess (plus interest at Applicable Law in a manner that preserves to the rate provided in Section 1274(b)(2)(B) greatest extent possible the intent and purposes of this Amendment. “Applicable Law” means the Code) at laws, statutes, rules, regulations, treaties, directives, guidelines, ordinances, codes, administrative or judicial precedents or authorities and orders of any Governmental Authority, as well as the time that interpretation or administration thereof by any Governmental Authority charged with the amount of the excess is finally determined.enforcement, interpretation or administration thereof, and all applicable administrative orders, decisions, judgments, directed duties, requests, licenses, authorizations, decrees and permits of, and agreements with any Governmental Authority, to which

Golden Parachute Provisions. If Executive (i) In the event Employee becomes entitled to the payments, receive payments and benefits and equity acceleration described in Sections 3 and 4 hereunder or otherwise and such payments and benefits, together with any other payments or transfers of property (collectively the “Severance Payments”), constitute “parachute” payments under Section 280G of the Internal Revenue Code of 1986, as amended benefits (the “CodeTotal Payments”), then ) will be subject to the Company shall pay an additional amount tax (the “Gross-Up PaymentExcise Tax”) to Executive. The Gross-Up Payment shall be equal to the amount necessary so that the net amount retained by Executive, after subtracting the parachute excise tax imposed by Section 4999 of the Code, as amended, or any successor statute then in effect (the “Excise Tax”), and after also subtracting all federal, state or local income tax, FICA similar tax and Excise Tax on the Gross-Up Payment, shall that may hereafter be equal to the net amount Executive would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The amount of the Gross-Up Payment shall be determined in good faith by nationally recognized registered public accountants or tax counsel selected by the Company, who shall apply the following assumptions: (i) Executive shall be treated as paying federal income taxes at the highest marginal rate in the calendar year in which the Gross-Up Payment is made, and (ii) Executive shall be treated as paying state and local income taxes at the highest marginal rate(s) in the calendar year in which the Gross-Up Payment is made in the locality of Executive’s residence as of the effective date of Executive’s termination or resignation, net of the maximum reduction in federal income taxes that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall be made within five business days after the effective date of Executive’s termination or resignation, provided that if the Gross-Up Payment cannot be determined within that timeimposed, the Company shall pay Executive within that time an estimatecompute the “Net After-Tax Amount,” and the “Reduced Amount,” and shall adjust the Total Payments as described below. The Net After-Tax Amount shall mean the present value of all amounts payable to Employee hereunder, determined in good faith net of all federal income, excise and employment taxes imposed on Employee by reason of such payments. The Reduced Amount shall mean the Company, of the minimum largest aggregate amount of the GrossTotal Payments that if paid to Employee would result in Employee receiving a Net After-Up Payment and shall pay the remainder (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but in no event later Tax Amount that is equal to or greater than the 30th day after Net After-Tax Amount that Employee would have received if the effective date of Executive’s termination or resignationTotal Payments had been made. If the estimated payment Company determines that there is more than the amount later determined to have been duea Reduced Amount, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall Total Payments will be repaid by Executive within five business days after written demand. In all events, any Gross-Up Payment made pursuant to this Section 6 shall be paid to Executive no later than the end of the calendar year following the year in which the related taxes are remitted reduced to the applicable taxing authorityReduced Amount. If the actual Excise Tax imposed is less than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive shall repay at the time that the amount of the reduced Excise Tax is finally determined the portion of the Gross-Up Payment attributable to that Such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax, FICA tax and federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by ExecutiveTotal Payments shall, to the extent permitted by Section 280G of the repayment Code and does not result in additional taxes under Code Section 409A, be in the order specified by Employee or, if not specified or cannot be specified, be made by first reducing or eliminating any cash severance benefits, then by reducing or eliminating any accelerated vesting of equity awards in the manner that results in a reduction the largest amount being paid to Employee and then by reducing or eliminating any other remaining Total Payments, in or refund each case in reverse order beginning with the payments which are to be paid the farthest in time from the date of the transaction triggering the Excise Tax, FICA tax or federal, state or local income tax), plus interest on the amount . (ii) The calculation of the repayment at Total Payments that are subject to the rate provided Excise Tax and the assumptions to be utilized in respect thereof shall be made by a nationally recognized certified public accounting firm or other professional organization that is recognized as an expert in determinations and calculations for purposes of Section 1274(b)(2)(B280G of the Code that is selected by the Board prior to the transaction resulting in the application (or potential application) of Section 280G of the CodeCode for purposes of making the applicable determinations hereunder, which firm shall not, without Employee’s consent, be a firm serving as accountant or auditor for the entities effecting the transaction that results in the application (or potential application) of Section 280G of the Code (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to the Company and Employee. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon the Company and Employee. If the actual Excise Tax imposed is more than the amount that was taken into account in determining the amount of the Gross-Up Paymentrequested by Employee, the Company shall make an additional Gross-Up Payment cooperate with Employee in good faith in valuing, and the Accounting Firm shall take into account the value of, services provided or to be provided by Employee (including Employee’s agreeing to refrain from performing services pursuant to a covenant not to compete or similar covenant, before, on or after the date of a change in ownership or control of the Company (within the meaning of Treasury Regulation Section 1.280G-1, Q&A-2(b)) such that payments in respect of such excess (plus interest at services may be considered reasonable compensation within the rate provided in meaning of Treasury Regulation Section 1274(b)(2)(B) 1.280G-1, Q&A-9 and Q&A-40 to Q&A-44 and/or exempt from the definition of the Code) at term “parachute payment” within the time that the amount meaning of the excess is finally determinedTreasury Regulation Section 1.280G-1, Q&A-2(a), in accordance with Treasury Regulation Section 1.280G-1, Q&A-5(a)).

Golden Parachute Provisions. If Executive becomes entitled Notwithstanding any provision in this Agreement to the paymentscontrary (other than Sections 6.9 and 6.10 which will apply under the circumstances described in those paragraphs and below), if, as of the date of the Change of Control, the Change Entity (after consulting with an independent accounting or compensation consulting company) ascertains that the compensation and benefits and equity acceleration provided to the Executive pursuant to or under this Agreement (other than the amounts described in Sections 3 6.9 and 4 6.10, either alone or when combined with other compensation and benefits received by the Executive, would constitute “excess parachute payments” within the meaning of Section 280G of the Code, or the Treasury Regulations promulgated thereunder, then: (a) The relevant provisions of any change of control agreement to which the Corporation and the Executive are parties on the Date of the Change of Control will apply; or (b) If the Executive and the Corporation are not parties to a change of control agreement on the Date of the Change of Control such parachute payments and benefitsshall be retroactively (if necessary) reduced to the extent necessary to avoid Excise Taxes, together which reduction shall comply with Section 409A of the Code. Notwithstanding the foregoing or any other payments or transfers provision of property (collectively this Agreement to the “Severance Payments”)contrary, constitute “parachute” payments if any portion of the amount herein payable to the Executive is determined to be non-deductible pursuant to the regulations promulgated under Section 280G of the Code, the Corporation shall be required only to pay to the Executive the amount determined to be deductible under Section 280G. If the Internal Revenue Code Service subsequently and finally decides that the amount of 1986, as amended compensation and benefits (including after the “Code”reduction applied under this Section 5) will generate Excise Taxes on compensation and benefits (other than those amounts described in Sections 6.9 and 6.10), then the Company shall pay Executive will immediately remit an additional amount (to the “Gross-Up Payment”) to Executive. The Gross-Up Payment shall be Change Entity equal to the difference between the amount necessary so paid (other than those amounts described in Sections 6.9 and 6.10) and the amount paid (other than those amounts described in Sections 6.9 and 6.10). Also, the Executive agrees to promptly notify the Corporation of an assessment or inquiry from the Internal Revenue Service relating to payments under this Agreement that the net amount retained by Executivewould, after subtracting the parachute excise tax imposed by Section 4999 if made final, result in imposition of the Code, as amended, or any successor statute then in effect (the “Excise Tax”), and after also subtracting all federal, state or local income tax, FICA tax and an Excise Tax on and also agrees to cooperate in resisting any Excise Tax assessment. However, the Gross-Up Payment, Corporation will have complete control over resolution of any claim by the Internal Revenue Service that might generate an Excise Tax (although it will have no dispositive power over any other tax matter that may be subject to the same audit) and the Corporation will bear all costs associated with that effort provided that any costs paid or reimbursed by the Corporation shall be equal subject to the net amount Executive would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The amount of the Gross-Up Payment shall be determined in good faith by nationally recognized registered public accountants or tax counsel selected by the Company, who shall apply the following assumptionslimitations: (i) Executive the costs eligible for payment shall be treated as paying federal income taxes at include any costs arising during the highest marginal rate in lifetime of the calendar year in which the Gross-Up Payment is made, and Executive; (ii) Executive shall be treated as paying state and local income taxes at the highest marginal rate(s) in the calendar amount of costs paid during any taxable year in which the Gross-Up Payment is made in the locality of Executive’s residence as of the effective date Executive may not affect the amount of Executive’s termination or resignation, net costs eligible for payment in any other taxable of the maximum reduction in federal income taxes that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall be made within five business days after the effective date of Executive’s termination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay Executive within that time an estimate, determined in good faith by the Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder year; (plus interest at the rate provided in Section 1274(b)(2)(Biii) of the Code) as soon as the amount can be determined but in no event later than the 30th day after the effective date of Executive’s termination or resignation. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Executive within five business days after written demand. In all events, any Gross-Up Payment made pursuant to this Section 6 costs being paid shall be paid to Executive no later than the end December 31 of the calendar year following the year in which they were incurred; and (iv) the related taxes are remitted right to the applicable taxing authority. If the actual Excise Tax imposed is less than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive shall repay at the time that the amount of the reduced Excise Tax is finally determined the portion of the Gross-Up Payment attributable payment may not be subject to that reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax, FICA tax and federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by Executive, to the extent the repayment results in a reduction in liquidation or refund of Excise Tax, FICA tax or federal, state or local income tax), plus interest on the amount of the repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If the actual Excise Tax imposed is more than the amount that was taken into account in determining the amount of the Gross-Up Payment, the Company shall make an additional Gross-Up Payment in respect of such excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) at the time that the amount of the excess is finally determinedexchange for another benefit.

Golden Parachute Provisions. If (a) In the event Executive becomes entitled to the payments, receive payments and benefits and equity acceleration described in Sections 3 and 4 hereunder or otherwise and such payments and benefits, together with any other payments or transfers of property (collectively the “Severance Payments”), constitute “parachute” payments under Section 280G of the Internal Revenue Code of 1986, as amended benefits (the “CodeTotal Payments”), then ) will be subject to the Company shall pay an additional amount tax (the “Gross-Up PaymentExcise Tax”) to Executive. The Gross-Up Payment shall be equal to the amount necessary so that the net amount retained by Executive, after subtracting the parachute excise tax imposed by Section 4999 of the Code, or any similar tax that may hereafter be imposed, the Company shall compute the “Net After-Tax Amount,” and the “Reduced Amount,” and shall adjust the Total Payments as amendeddescribed below. The Net After-Tax Amount shall mean the present value of all amounts payable to Executive hereunder, net of all federal income, excise and employment taxes imposed on Executive by reason of such payments. The Reduced Amount shall mean the largest aggregate amount of the Total Payments that if paid to Executive would result in Executive receiving a Net After-Tax Amount that is equal to or greater than the Net After-Tax Amount that Executive would have received if the Total Payments had been made. If the Company determines that there is a Reduced Amount, the Total Payments will be reduced to the Reduced Amount. Such reduction to the Total Payments shall, to the extent permitted by Section 280G and Section 409A, be in the order specified by the Executive or, if not specified or can’t be specified, be made by first reducing or eliminating any cash severance benefits, then by reducing or eliminating any accelerated vesting of equity awards in the manner that results in the largest amount being paid to Executive and then by reducing or eliminating any other remaining Total Payments, in each case in reverse order beginning with the payments which are to be paid the farthest in time from the date of the transaction triggering the Excise Tax. (b) For purposes of determining whether the Total Payments will be subject to the Excise Tax and the amounts of such Excise Tax and for purposes of determining the Reduced Amount and the Net After-Tax Amount: (i) any other payments or benefits received or to be received by Executive in connection with a Change in Control of the Company or Executive’s termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement, or agreement with the Company, or with any successor statute then individual, entity, or group of individuals or entities whose actions result in effect (a change in control of the Company or any Person affiliated with the Company or such Persons) shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of a tax advisor selected by the Company and reasonably acceptable to Executive (“Tax Counsel”), and after also subtracting all federalsuch other payments or benefits (in whole or in part) should be treated by the courts as representing reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code), state or local income tax, FICA tax and otherwise not subject to the Excise Tax; (ii) the amount of the Total Payments that shall be treated as subject to the Excise Tax on the Gross-Up Payment, shall be equal to the net amount Executive would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The lesser of (A) the total amount of the Gross-Up Payment shall be determined Total Payments; or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (a) above); (iii) in good faith by nationally recognized registered public accountants the event that Executive disputes any calculation or tax counsel selected determination made by the Company, who the matter shall apply be determined by Tax Counsel, the following assumptions: fees and expenses of which shall be borne solely by the Company; and (iiv) Executive shall be treated as paying deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is madeChange in Control of the Company occurs, and (ii) Executive shall be treated as paying state and local income taxes at the highest marginal rate(s) rate of taxation in the calendar year in which the Gross-Up Payment is made in the state and locality of Executive’s residence as of on the effective date of Executive’s termination or resignationthe Change in Control of the Company, net of the maximum reduction in federal income taxes that which could be obtained from deducting those deduction of such state and local taxes. The Gross-Up Payment shall be made within five business days after , taking into account the effective date of Executive’s termination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay Executive within that time an estimate, determined reduction in good faith by the Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder (plus interest at the rate provided in itemized deduction under Section 1274(b)(2)(B) 68 of the Code) as soon as the amount can be determined but in no event later than the 30th day after the effective date of Executive’s termination or resignation. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Executive within five business days after written demand. In all events, any Gross-Up Payment made pursuant to this Section 6 shall be paid to Executive no later than the end of the calendar year following the year in which the related taxes are remitted to the applicable taxing authority. If the actual Excise Tax imposed is less than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive shall repay at the time that the amount of the reduced Excise Tax is finally determined the portion of the Gross-Up Payment attributable to that reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax, FICA tax and federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by Executive, to the extent the repayment results in a reduction in or refund of Excise Tax, FICA tax or federal, state or local income tax), plus interest on the amount of the repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If the actual Excise Tax imposed is more than the amount that was taken into account in determining the amount of the Gross-Up Payment, the Company shall make an additional Gross-Up Payment in respect of such excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) at the time that the amount of the excess is finally determined.

Golden Parachute Provisions. If Executive becomes entitled (a) Anything in this Agreement to the payments, benefits and equity acceleration described in Sections 3 and 4 and such payments and benefits, together with any other payments or transfers of property (collectively the “Severance Payments”), constitute “parachute” payments under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company shall pay an additional amount (the “Gross-Up Payment”) to Executive. The Gross-Up Payment shall be equal to the amount necessary so that the net amount retained by Executive, after subtracting the parachute excise tax imposed by Section 4999 of the Code, as amended, or any successor statute then in effect (the “Excise Tax”), and after also subtracting all federal, state or local income tax, FICA tax and Excise Tax on the Gross-Up Payment, shall be equal to the net amount Executive would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The amount of the Gross-Up Payment shall be determined in good faith by nationally recognized registered public accountants or tax counsel selected by the Company, who shall apply the following assumptions: (i) Executive shall be treated as paying federal income taxes at the highest marginal rate in the calendar year in which the Gross-Up Payment is made, and (ii) Executive shall be treated as paying state and local income taxes at the highest marginal rate(s) in the calendar year in which the Gross-Up Payment is made in the locality of Executive’s residence as of the effective date of Executive’s termination or resignation, net of the maximum reduction in federal income taxes that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall be made within five business days after the effective date of Executive’s termination or resignation, provided that if the Gross-Up Payment cannot be determined within that timecontrary notwithstanding, the Company shall pay Executive within not be obligated to make any payment hereunder that time an estimate, determined in good faith by the Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder (plus interest at the rate provided in would be prohibited as a “golden parachute payment” or “indemnification payment” under Section 1274(b)(2)(B18(k) of the CodeFederal Deposit Insurance Act. (b) as soon as If any payment or benefit to the amount can Executive under this Agreement or otherwise would be determined but in no event later than a “golden parachute payment” or “indemnification payment” within the 30th day after the effective date meaning of Executive’s termination or resignation. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B18(k) of the CodeFederal Deposit Insurance Act, such payment or benefit shall not be made unless permitted under applicable law. The Company shall use best efforts promptly to apply to the appropriate federal banking agency for a determination that any golden parachute payment is permissible. (c) The provisions of this Agreement are subject to and shall be repaid by Executive within five business days after written demandinterpreted to be consistent with Applicable Law, which terms control over the terms of this Agreement in the event of a conflict between Applicable Law and this Agreement. In all eventsNotwithstanding anything herein to the contrary, any Gross-Up Payment made pursuant to this Section 6 no payment or benefit shall be paid to Executive no later than the end of the calendar year following the year in which the related taxes are remitted or provided to the applicable taxing authority. If the actual Excise Tax imposed is less than the amount that was taken into account in determining the amount of the Gross-Up PaymentExecutive or be vested or accrued if any such payment or benefit, Executive shall repay at the time that the amount of the reduced Excise Tax is finally determined the portion of the Gross-Up Payment attributable to that reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax, FICA tax and federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by Executivevesting or accrual would violate Applicable Law and, to the extent any such payment or benefit that has been paid, provided, vested or accrued is determined to be in violation of Applicable Law, any such payment or benefit shall be subject to recoupment or cancellation. In the repayment results in a reduction in or refund event of Excise Taxany such violation, FICA tax or federal, state or local income tax), plus interest on the amount of the repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If the actual Excise Tax imposed is more than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive and the Company shall make an additional Gross-Up Payment cooperate in respect good faith to endeavor to meet the requirements of such excess (plus interest at Applicable Law in a manner that preserves to the rate provided greatest extent possible the intent and purposes of this Amendment. “Applicable Law” means the laws, statutes, rules, regulations, treaties, directives, guidelines, ordinances, codes, administrative or judicial precedents or authorities and orders of any Governmental Authority, as well as the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, decisions, judgments, directed duties, requests, licenses, authorizations, decrees and permits of, and agreements with any Governmental Authority, to which the Company or the Executive are a party or by which the Company or the Executive are bound, in Section 1274(b)(2)(B) each case whether or not having the force of law, and all orders, decisions, judgments, and decrees of all courts or arbitrators in proceedings or actions to which the Code) at Company or the time that Executive are a party or by which the amount Company or the Executive are bound. “Governmental Authority” means the United States of America, any state or territory thereof and any federal, state, provincial, city, town, municipality, county or local authority, including without limitation, the excess is finally determinedFederal Deposit Insurance Corporation, the New York State Department of Financial Services, and any board, bureau, instrumentality, agency or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

Golden Parachute Provisions. If Executive Employee becomes entitled to the payments, benefits and equity acceleration described in Sections 3 and 4 2.1 through 2.4 and such payments and benefits, together with any other payments or transfers of property (collectively the “Severance Payments”), constitute “parachute” payments under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company shall pay an additional amount (the “Gross-Up Payment”) to ExecutiveEmployee. The Gross-Up Payment shall be equal to the amount necessary so that the net amount retained by ExecutiveEmployee, after subtracting the parachute excise tax imposed by Section 4999 of the Code, as amended, or any successor statute then in effect (the “Excise Tax”), and after also subtracting all federal, state or local income tax, FICA tax and Excise Tax on the Gross-Up Payment, shall be equal to the net amount Executive Employee would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The amount of the Gross-Up Payment shall be determined in good faith by nationally recognized registered public accountants or tax counsel selected by the Company, who shall apply the following assumptions: (i) Executive Employee shall be treated as paying federal income taxes at the highest marginal rate in the calendar year in which the Gross-Up Payment is made, and (ii) Executive Employee shall be treated as paying state and local income taxes at the highest marginal rate(s) in the calendar year in which the Gross-Up Payment is made in the locality of ExecutiveEmployee’s residence as of the effective date of ExecutiveEmployee’s termination or resignation, net of the maximum reduction in federal income taxes that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall be made within five business days after the effective date of ExecutiveEmployee’s termination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay Executive Employee within that time an estimate, determined in good faith by the Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but in no event later than the 30th day after the effective date of ExecutiveEmployee’s termination or resignation. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Executive Employee within five business days after written demand. In all events, any Gross-Up Payment made pursuant to this Section 6 shall be paid to Executive Employee no later than the end of the calendar year following the year in which the related taxes are remitted to the applicable taxing authority. If the actual Excise Tax imposed is less than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive Employee shall repay at the time that the amount of the reduced Excise Tax is finally determined the portion of the Gross-Up Payment attributable to that reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax, FICA tax and federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by ExecutiveEmployee, to the extent the repayment results in a reduction in or refund of Excise Tax, FICA tax or federal, state or local income tax), plus interest on the amount of the repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If the actual Excise Tax imposed is more than the amount that was taken into account in determining the amount of the Gross-Up Payment, the Company shall make an additional Gross-Up Payment in respect of such excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) at the time that the amount of the excess is finally determined.

Golden Parachute Provisions. If Executive becomes entitled (a) Notwithstanding any provision of this Agreement to the paymentscontrary, benefits and equity acceleration described in Sections 3 and 4 and such payments and benefits, together with the event that any other payments amount or transfers benefit to be paid or provided under this Agreement or otherwise to the Executive constitutes a “parachute payment” within the meaning of property (collectively the “Severance Payments”), constitute “parachute” payments under Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”)and but for this provision, then the Company shall pay an additional amount (the “Gross-Up Payment”) to Executive. The Gross-Up Payment shall would be equal subject to the amount necessary so that the net amount retained by Executive, after subtracting the parachute excise tax imposed by Section 4999 of the CodeCode (such tax or taxes, together with any equivalent state or local excise taxes and any interest and penalties, being hereafter collectively referred to as amended, or any successor statute then in effect (the “Excise Tax”), and after also subtracting all federal, state or local income tax, FICA tax and Excise Tax on then the Gross-Up Payment, totality of those amounts shall be equal either: (a) delivered to the net amount Executive in full, or (b) delivered to the Executive as to such lesser extent which would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The amount of the Gross-Up Payment shall be determined in good faith by nationally recognized registered public accountants or tax counsel selected by the Company, who shall apply the following assumptions: (i) Executive shall be treated as paying federal income taxes at the highest marginal rate in the calendar year in which the Gross-Up Payment is made, and (ii) Executive shall be treated as paying state and local income taxes at the highest marginal rate(s) in the calendar year in which the Gross-Up Payment is made in the locality of Executive’s residence as of the effective date of Executive’s termination or resignation, net of the maximum reduction in federal income taxes that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall be made within five business days after the effective date of Executive’s termination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay Executive within that time an estimate, determined in good faith by the Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but result in no event later than the 30th day after the effective date of Executive’s termination or resignation. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Executive within five business days after written demand. In all events, any Gross-Up Payment made pursuant to this Section 6 shall be paid to Executive no later than the end of the calendar year following the year in which the related taxes are remitted to the applicable taxing authority. If the actual Excise Tax imposed is less than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive shall repay at the time that the amount of the reduced Excise Tax is finally determined the portion of the Gross-Up Payment attributable to that reduction (plus the portion of the Gross-Up Payment attributable such payments and benefits being subject to the Excise Tax, FICA tax and whichever of the foregoing amounts, taking into account the applicable federal, state and local income tax imposed on and employment taxes and the portion of the Gross-Up Payment being repaid by Executive, to the extent the repayment results in a reduction in or refund of Excise Tax, FICA results in the receipt by the Executive on an after-tax or federalbasis, state or local income tax), plus interest on of the greatest amount of the repayment at the rate provided in such payments and benefits, notwithstanding that all or some portion of such amount may be taxable under Section 1274(b)(2)(B) 4999 of the Code. Any reduction of any amount required by this provision shall occur in the following order: (1) reduction of cash payments to the Executive under this Agreement or otherwise; (2) reduction of vesting acceleration of stock options or other stock-based awards under this Agreement or otherwise; and (3) reduction of other benefits paid or provided to the Executive. If two or more stock options or other stock-based awards are granted on the actual Excise Tax imposed is more than same date, each option or award will be reduced on a pro rata basis (dollar-for-dollar). (b) Unless the amount that was taken into account Company and the Executive otherwise agree, any determination required under this Section 5 shall be made in determining writing by the amount Company’s outside auditors immediately prior to the Change in Control (the “Accounting Firm”), whose determination shall be conclusive and binding upon the Executive and the Company for all purposes. (c) The Company and the Executive shall each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Gross-Up PaymentCompany or the Executive, as the Company shall make an additional Gross-Up Payment case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in respect of such excess (plus interest at connection with the rate provided in Section 1274(b)(2)(B) preparation and issuance of the Codedeterminations and calculations contemplated by Section 5(b). (d) at the time that the amount The fees and expenses of the excess is finally determinedAccounting Firm for its services in connection with the determinations and calculations contemplated by Section 5(b) shall be borne by the Company.

Golden Parachute Provisions. If Executive becomes entitled Notwithstanding any provision in this Agreement to the payments, benefits contrary (other than Paragraphs 27 and equity acceleration 31 which will apply under the circumstances described in Sections 3 those paragraphs and 4 below), if, as of the date of the Change of Control, the Change Entity (after consulting with an independent accounting or compensation consulting company) ascertains that the compensation and benefits provided to the Executive pursuant to or under this Agreement (other than the amounts described in Paragraphs 27 and 31, either alone or when combined with other compensation and benefits received by the Executive, would constitute "parachute payments" within the meaning of Section 280G of the Code, or the regulations adopted thereunder, then: (a) The relevant provisions of any change of control agreement to which the Corporation and the Executive are parties on the Date of the Change of Control will apply; or (b) If the Executive and the Corporation are not parties to a change of control agreement on the Date of the Change of Control such parachute payments and benefitsshall be retroactively (if necessary) reduced to the extent necessary to avoid excise taxes otherwise arising under Section 4999 of the Code. Upon written notice to Executive, together with calculations of Corporation's independent auditors, Executive shall remit to Corporation the amount of the reduction plus such interest as may be necessary to avoid the imposition of such excise tax. Notwithstanding the foregoing or any other payments or transfers provision of property (collectively this Agreement to the “Severance Payments”)contrary, constitute “parachute” payments if any portion of the amount herein payable to the Executive is determined to be non-deductible pursuant to the regulations promulgated under Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”"), then the Company shall pay an additional amount (the “Gross-Up Payment”) to Executive. The Gross-Up Payment Corporation shall be equal required only to pay to Executive the amount necessary so that the net amount retained by Executive, after subtracting the parachute excise tax imposed by determined to be deductible under Section 4999 of the Code, as amended, or any successor statute then in effect (the “Excise Tax”), and after also subtracting all federal, state or local income tax, FICA tax and Excise Tax on the Gross-Up Payment, shall be equal to the net amount Executive would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The amount of the Gross-Up Payment shall be determined in good faith by nationally recognized registered public accountants or tax counsel selected by the Company, who shall apply the following assumptions: (i) Executive shall be treated as paying federal income taxes at the highest marginal rate in the calendar year in which the Gross-Up Payment is made, and (ii) Executive shall be treated as paying state and local income taxes at the highest marginal rate(s) in the calendar year in which the Gross-Up Payment is made in the locality of Executive’s residence as of the effective date of Executive’s termination or resignation, net of the maximum reduction in federal income taxes that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall be made within five business days after the effective date of Executive’s termination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay Executive within that time an estimate, determined in good faith by the Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but in no event later than the 30th day after the effective date of Executive’s termination or resignation. 280G. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Executive within five business days after written demand. In all events, any Gross-Up Payment made pursuant to this Section 6 shall be paid to Executive no later than the end of the calendar year following the year in which the related taxes are remitted to the applicable taxing authority. If the actual Excise Tax imposed is less than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive shall repay at the time Internal Revenue Service subsequently and finally decides that the amount of compensation and benefits (including after the reduced reduction applied under this Paragraph 16) will generate Excise Taxes on compensation and benefits (other than those amounts described in Paragraphs 27 and 31), the Executive will immediately remit an additional amount to the Change Entity equal to the difference between the amount paid (other than those amounts described in Paragraphs 27 and 31) and the amount paid (other than those amounts described in Paragraphs 27 and 31). Also, the Executive agrees to promptly notify the Corporation of an assessment or inquiry from the Internal Revenue Service relating to payments under this Agreement that would, if made final, result in imposition of an Excise Tax is finally determined and also agrees to cooperate in resisting any Excise Tax assessment. However, the portion Corporation will have complete control over resolution of any claim by the Gross-Up Payment attributable to Internal Revenue Service that reduction might generate an Excise Tax (plus the portion of the Gross-Up Payment attributable although it will have no dispositive power over any other tax matter that may be subject to the Excise Tax, FICA tax same audit) and federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by Executive, to the extent the repayment results in a reduction in or refund of Excise Tax, FICA tax or federal, state or local income tax), plus interest on the amount of the repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If the actual Excise Tax imposed is more than the amount Corporation will bear all costs associated with that was taken into account in determining the amount of the Gross-Up Payment, the Company shall make an additional Gross-Up Payment in respect of such excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) at the time that the amount of the excess is finally determinedeffort.

Golden Parachute Provisions. If Executive becomes entitled Notwithstanding any provision in this Agreement to the paymentscontrary (other than Sections 6.9 and 6.10 which will apply under the circumstances described in those paragraphs and below), if, as of the date of the Change of Control, the Change Entity (after consulting with an independent accounting or compensation consulting company) ascertains that the compensation and benefits and equity acceleration provided to the Executive pursuant to or under this Agreement (other than the amounts described in Sections 3 6.9 and 4 6.10), either alone or when combined with other compensation and benefits received by the Executive, would constitute “excess parachute payments” within the meaning of Section 280G of the Code, or the Treasury Regulations promulgated thereunder, then: (a) The relevant provisions of any change of control agreement and/or employment agreement to which the Corporation and the Executive are parties on the Date of the Change of Control will apply; or (b) If the Executive and the Corporation are not parties to a change of control agreement and/or employment agreement on the Date of the Change of Control, such payments compensation and benefitsbenefits shall be (retroactively, together if necessary) reduced to the extent necessary to avoid Excise Taxes, which reduction shall comply with Section 409A of the Code. Notwithstanding the foregoing or any other payments or transfers provision of property (collectively this Agreement to the “Severance Payments”)contrary, constitute “parachute” payments if any portion of the amount herein payable to the Executive is determined to be non-deductible pursuant to the Treasury Regulations promulgated under Section 280G of the Code, the Corporation shall be required only to pay to the Executive the amount determined to be deductible under Section 280G of the Code. If the Internal Revenue Service subsequently and finally decides that the amount of compensation and benefits (including after the reduction applied under this Article 5) will generate Excise Taxes or a loss of deduction under Section 280G of the Code of 1986, as amended with respect to the compensation and benefits (the “Code”other than those amounts described in Sections 6.9 and 6.10), then the Company shall pay Executive will immediately remit an additional amount (to the “Gross-Up Payment”) to Executive. The Gross-Up Payment shall be Change Entity equal to the difference between the amount paid (other than those amounts described in Sections 6.9 and 6.10) and the minimum amount necessary so that to avoid the net amount retained by Executive, after subtracting the parachute excise tax imposed by imposition of Excise Taxes or a loss of deduction under Section 4999 280G of the Code. Also, as amendedthe Executive agrees to promptly notify the Corporation of an assessment or inquiry from the Internal Revenue Service relating to payments under this Agreement that would, or any successor statute then if made final, result in effect (the “Excise Tax”), and after also subtracting all federal, state or local income tax, FICA tax and imposition of an Excise Tax on or a loss of deduction under Section 280G of the Gross-Up PaymentCode and also agrees to cooperate in resisting any Excise Tax assessment. However, the Corporation will have complete control over resolution of any claim by the Internal Revenue Service that might generate an Excise Tax (although it will have no dispositive power over any other tax matter that may be subject to the same audit) and the Corporation will bear all costs associated with that effort provided that any costs paid or reimbursed by the Corporation shall be equal subject to the net amount Executive would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The amount of the Gross-Up Payment shall be determined in good faith by nationally recognized registered public accountants or tax counsel selected by the Company, who shall apply the following assumptionslimitations: (i) Executive the costs eligible for payment shall be treated as paying federal income taxes at include any costs arising during the highest marginal rate in lifetime of the calendar year in which the Gross-Up Payment is made, and Executive; (ii) Executive shall be treated as paying state and local income taxes at the highest marginal rate(s) in the calendar amount of costs paid during any taxable year in which the Gross-Up Payment is made in the locality of Executive’s residence as of the effective date Executive may not affect the amount of Executive’s termination or resignation, net costs eligible for payment in any other taxable year of the maximum reduction in federal income taxes that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall be made within five business days after the effective date of Executive’s termination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay Executive within that time an estimate, determined in good faith by the Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder ; (plus interest at the rate provided in Section 1274(b)(2)(Biii) of the Code) as soon as the amount can be determined but in no event later than the 30th day after the effective date of Executive’s termination or resignation. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Executive within five business days after written demand. In all events, any Gross-Up Payment made pursuant to this Section 6 costs being paid shall be paid to Executive no later than the end last day of the calendar Executive’s taxable year following the year in which they were incurred; and (iv) the related taxes are remitted right to the applicable taxing authority. If the actual Excise Tax imposed is less than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive shall repay at the time that the amount of the reduced Excise Tax is finally determined the portion of the Gross-Up Payment attributable payment may not be subject to that reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax, FICA tax and federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by Executive, to the extent the repayment results in a reduction in liquidation or refund of Excise Tax, FICA tax or federal, state or local income tax), plus interest on the amount of the repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If the actual Excise Tax imposed is more than the amount that was taken into account in determining the amount of the Gross-Up Payment, the Company shall make an additional Gross-Up Payment in respect of such excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) at the time that the amount of the excess is finally determinedexchange for another benefit.

Golden Parachute Provisions. If (a) In the event Executive becomes entitled to the payments, receive payments and benefits and equity acceleration described in Sections 3 and 4 hereunder or otherwise and such payments and benefits, together with any other payments or transfers of property (collectively the “Severance Payments”), constitute “parachute” payments under Section 280G of the Internal Revenue Code of 1986, as amended benefits (the “CodeTotal Payments”), then ) will be subject to the Company shall pay an additional amount tax (the “Gross-Up PaymentExcise Tax”) to Executive. The Gross-Up Payment shall be equal to the amount necessary so that the net amount retained by Executive, after subtracting the parachute excise tax imposed by Section 4999 of the Code, as amended, or any successor statute then in effect similar tax that may hereafter be imposed, the Tax Counsel (defined below) shall compute the “Net After-Tax Amount,” and the “Reduced Amount,” and shall adjust the Total Payments as described below. The Net After-Tax Amount shall mean the present value of the Total Payments, net of all federal income, excise and employment taxes that would be imposed on Executive by reason of such payments. The Reduced Amount shall mean the largest aggregate amount of the Total Payments that can be paid without any amount being subject to the Excise Tax. If the Company determines that the Reduced Amount is greater than the Net After-Tax Amount, the Total Payments will be reduced to the Reduced Amount. Such reduction to the Total Payments shall, to the extent permitted by Section 280G and Section 409A, be in the order specified by the Executive or, if not specified or can’t be specified, be made by first reducing or eliminating any cash severance benefits, then by reducing or eliminating any accelerated vesting of equity awards in the manner that results in the largest amount being paid to Executive and then by reducing or eliminating any other remaining Total Payments, in each case in reverse order beginning with the payments which are to be paid the farthest in time from the date of the transaction triggering the Excise Tax. (b) All determinations under this Section 13 shall be made by a tax advisor selected by the Company before the change in control event and reasonably acceptable to Executive (“Tax Counsel”), the fees and after also subtracting all federal, state or local income tax, FICA tax and Excise Tax on the Gross-Up Payment, expenses of which shall be equal to the net amount Executive would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The amount of the Gross-Up Payment shall be determined in good faith by nationally recognized registered public accountants or tax counsel selected borne solely by the CompanyCompany For purposes of determining the Net After-Tax Amount, who shall apply the following assumptions: (i) Executive shall be treated as paying deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is madeChange in Control of the Company occurs, and (ii) Executive shall be treated as paying state and local income taxes at the highest marginal rate(s) rate of taxation in the calendar year in which the Gross-Up Payment is made in the state and locality of Executive’s residence as of on the effective date of Executive’s termination or resignationthe Change in Control of the Company, net of the maximum reduction in federal income taxes that which could be obtained from deducting those deduction of such state and local taxes. The Gross-Up Payment shall be made within five business days after , taking into account the effective date of Executive’s termination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay Executive within that time an estimate, determined reduction in good faith by the Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder (plus interest at the rate provided in itemized deduction under Section 1274(b)(2)(B) 68 of the Code) as soon as the amount can be determined but in no event later than the 30th day after the effective date of Executive’s termination or resignation. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Executive within five business days after written demand. In all events, any Gross-Up Payment made pursuant to this Section 6 shall be paid to Executive no later than the end of the calendar year following the year in which the related taxes are remitted to the applicable taxing authority. If the actual Excise Tax imposed is less than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive shall repay at the time that the amount of the reduced Excise Tax is finally determined the portion of the Gross-Up Payment attributable to that reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax, FICA tax and federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by Executive, to the extent the repayment results in a reduction in or refund of Excise Tax, FICA tax or federal, state or local income tax), plus interest on the amount of the repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If the actual Excise Tax imposed is more than the amount that was taken into account in determining the amount of the Gross-Up Payment, the Company shall make an additional Gross-Up Payment in respect of such excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) at the time that the amount of the excess is finally determined.

Golden Parachute Provisions. If Executive becomes entitled (a) Notwithstanding any provision of this Agreement to the paymentscontrary, benefits and equity acceleration described in Sections 3 and 4 and such payments and benefits, together with the event that any other payments amount or transfers benefit to be paid or provided under this Agreement or otherwise to the Executive constitutes a "parachute payment" within the meaning of property (collectively the “Severance Payments”), constitute “parachute” payments under Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”)and but for this provision, then the Company shall pay an additional amount (the “Gross-Up Payment”) to Executive. The Gross-Up Payment shall would be equal subject to the amount necessary so that the net amount retained by Executive, after subtracting the parachute excise tax imposed by Section 4999 of the CodeCode (such tax or taxes, as amended, or together with any successor statute then in effect (the “Excise Tax”), and after also subtracting all federal, equivalent state or local income taxexcise taxes and any interest and penalties, FICA tax and being hereafter collectively referred to as the "Excise Tax on Tax"), then the Gross-Up Payment, totality of those amounts shall be equal either: (a) delivered to the net amount Executive in full, or (b) delivered to the Executive as to such lesser extent which would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The amount of the Gross-Up Payment shall be determined in good faith by nationally recognized registered public accountants or tax counsel selected by the Company, who shall apply the following assumptions: (i) Executive shall be treated as paying federal income taxes at the highest marginal rate in the calendar year in which the Gross-Up Payment is made, and (ii) Executive shall be treated as paying state and local income taxes at the highest marginal rate(s) in the calendar year in which the Gross-Up Payment is made in the locality of Executive’s residence as of the effective date of Executive’s termination or resignation, net of the maximum reduction in federal income taxes that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall be made within five business days after the effective date of Executive’s termination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay Executive within that time an estimate, determined in good faith by the Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but result in no event later than the 30th day after the effective date of Executive’s termination or resignation. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Executive within five business days after written demand. In all events, any Gross-Up Payment made pursuant to this Section 6 shall be paid to Executive no later than the end of the calendar year following the year in which the related taxes are remitted to the applicable taxing authority. If the actual Excise Tax imposed is less than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive shall repay at the time that the amount of the reduced Excise Tax is finally determined the portion of the Gross-Up Payment attributable to that reduction (plus the portion of the Gross-Up Payment attributable such payments and benefits being subject to the Excise Tax, FICA tax and whichever of the foregoing amounts, taking into account the applicable federal, state and local income tax imposed on and employment taxes and the portion of the Gross-Up Payment being repaid by Executive, to the extent the repayment results in a reduction in or refund of Excise Tax, FICA results in the receipt by the Executive on an after-tax or federalbasis, state or local income tax), plus interest on of the greatest amount of the repayment at the rate provided in such payments and benefits, notwithstanding that all or some portion of such amount may be taxable under Section 1274(b)(2)(B) 4999 of the Code. Any reduction of any amount required by this provision shall occur in the following order: (1) reduction of cash payments to the Executive under this Agreement or otherwise; (2) reduction of vesting acceleration of stock options or other stock-based awards under this Agreement or otherwise; and (3) reduction of other benefits paid or provided to the Executive. If two or more stock options or other stock-based awards are granted on the actual Excise Tax imposed is more than same date, each option or award will be reduced on a pro rata basis (dollar-for-dollar). (b) Unless the amount that was taken into account Company and the Executive otherwise agree, any determination required under this Section 5 shall be made in determining writing by the amount Company’s outside auditors immediately prior to the Change in Control (the "Accounting Firm"), whose determination shall be conclusive and binding upon the Executive and the Company for all purposes. (c) The Company and the Executive shall each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Gross-Up PaymentCompany or the Executive, as the Company shall make an additional Gross-Up Payment case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in respect of such excess (plus interest at connection with the rate provided in Section 1274(b)(2)(B) preparation and issuance of the Codedeterminations and calculations contemplated by Section 5(b). (d) at the time that the amount The fees and expenses of the excess is finally determinedAccounting Firm for its services in connection with the determinations and calculations contemplated by Section 5(b) shall be borne by the Company.

Golden Parachute Provisions. If Executive becomes entitled (a) Anything in this Agreement to the paymentscontrary notwithstanding, if any payment or benefit to the Executive under this Agreement or otherwise would be a “golden parachute payment” or “indemnification payment” within the meaning of Section 18(k) of the Federal Deposit Insurance Act, such payment or benefit shall not be made unless permitted under applicable law. The Company shall use best efforts promptly to apply to the appropriate federal banking agency for a determination that any golden parachute payment is permissible. (b) In the event that the benefits and equity acceleration described provided for in Sections 3 and 4 and such payments and benefitsthe Agreement, together when aggregated with any other payments or transfers of property benefits received by the Executive (collectively the “Severance PaymentsAggregate Benefits”), would (i) constitute “parachuteparachute payments” payments under within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended and (the “Code”), then the Company shall pay an additional amount (the “Gross-Up Payment”ii) to Executive. The Gross-Up Payment shall would be equal subject to the amount necessary so that the net amount retained by Executive, after subtracting the parachute excise tax imposed by Section 4999 of the Code, as amended, or any successor statute then in effect Code (the “Excise Tax”), and after also subtracting all federal, state or local income tax, FICA tax and Excise Tax on then the Gross-Up Payment, shall Executive’s Aggregate Benefits will be equal to the net amount Executive would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The amount of the Gross-Up Payment shall be determined in good faith by nationally recognized registered public accountants or tax counsel selected by the Company, who shall apply the following assumptionseither: (ia) Executive shall be treated delivered in full, or (b) delivered as paying federal income taxes at the highest marginal rate in the calendar year in which the Gross-Up Payment is made, and (ii) Executive shall be treated to such lesser extent as paying state and local income taxes at the highest marginal rate(s) in the calendar year in which the Gross-Up Payment is made in the locality of Executive’s residence as of the effective date of Executive’s termination or resignation, net of the maximum reduction in federal income taxes that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall be made within five business days after the effective date of Executive’s termination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay Executive within that time an estimate, determined in good faith by the Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but would result in no event later than the 30th day after the effective date of Executive’s termination or resignation. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Executive within five business days after written demand. In all events, any Gross-Up Payment made pursuant to this Section 6 shall be paid to Executive no later than the end of the calendar year following the year in which the related taxes are remitted to the applicable taxing authority. If the actual Excise Tax imposed is less than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive shall repay at the time that the amount of the reduced Excise Tax is finally determined the portion of the Gross-Up Payment attributable to that reduction (plus the portion of the Gross-Up Payment attributable such Aggregate Benefits being subject to the Excise Tax, FICA tax and whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Executive on an after-tax imposed basis of the greatest amount of Aggregate Benefits, notwithstanding that all or some portion of such Aggregate Benefits may be taxable under Section 4999 of the Code. Unless the Company and the Executive otherwise agree in writing, any determination required under this paragraph will be made in writing by an independent certified public accounting firm mutually agreeable to the Company and the Executive (the “Accounting Firm”) whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this paragraph, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive will furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably request in order to make a determination under this paragraph. To the extent any reduction in Aggregate Benefits is required by this paragraph, Aggregate Benefits shall be reduced or eliminated in reverse order of time of payment (that is, Aggregate Benefits payable later shall be reduced or eliminated before any reduction or elimination of Aggregate Benefits payable sooner), Aggregate Benefits payable at the same time shall be reduced or eliminated in accordance with the Executive’s instructions provided the Company has no reasonable objection thereto, and all reductions or eliminations shall be based on the portion value of the Gross-Up Payment being repaid Aggregate Benefits established for purposes of the determination required under this paragraph. All fees and expenses of the Accounting Firm shall be borne solely by Executivethe Company. (c) The provisions of this Agreement are subject to and shall be interpreted to be consistent with Applicable Law, which terms control over the terms of this Agreement in the event of a conflict between Applicable Law and this Agreement. Notwithstanding anything herein to the contrary, no payment or benefit shall be paid or provided to the Executive or be vested or accrued if any such payment or benefit, vesting or accrual would violate Applicable Law and, to the extent any such payment or benefit that has been paid, provided, vested or accrued is determined to be in violation of Applicable Law, any such payment or benefit shall be subject to recoupment or cancellation. In the repayment results in a reduction in or refund event of Excise Taxany such violation, FICA tax or federal, state or local income tax), plus interest on the amount of the repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If the actual Excise Tax imposed is more than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive and the Company shall make an additional Gross-Up Payment cooperate in respect good faith to endeavor to meet the requirements of such excess (plus interest at Applicable Law in a manner that preserves to the rate provided greatest extent possible the intent and purposes of this Amendment. “Applicable Law” means the laws, statutes, rules, regulations, treaties, directives, guidelines, ordinances, codes, administrative or judicial precedents or authorities and orders of any Governmental Authority, as well as the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, decisions, judgments, directed duties, requests, licenses, authorizations, decrees and permits of, and agreements with any Governmental Authority, to which the Company or the Executive are a party or by which the Company or the Executive are bound, in Section 1274(b)(2)(B) each case whether or not having the force of law, and all orders, decisions, judgments, and decrees of all courts or arbitrators in proceedings or actions to which the Code) at Company or the time that Executive are a party or by which the amount Company or the Executive are bound. “Governmental Authority” means the United States of America, any state or territory thereof and any federal, state, provincial, city, town, municipality, county or local authority, including without limitation, the excess is finally determinedFederal Deposit Insurance Corporation, the New York State Department of Financial Services, and any board, bureau, instrumentality, agency or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

Golden Parachute Provisions. If Executive Employee becomes entitled to the payments, benefits and equity acceleration described in Sections 3 and 4 2.1 through 2.4 and such payments and benefits, together with any other payments or transfers of property (collectively the “Severance Payments”), constitute “parachute” payments under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company shall pay an additional amount (the “Gross-Up Payment”) to ExecutiveEmployee. The Gross-Up Payment shall be equal to the amount necessary so that the net amount retained by ExecutiveEmployee, after subtracting the parachute excise tax imposed by Section 4999 of the Code, as amended, or any successor statute then in effect (the “Excise Tax”), and after also subtracting all federal, state or local income tax, FICA tax and Excise Tax on the Gross-Up Payment, shall be equal to the net amount Executive Employee would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The amount of the Gross-Up Payment shall be determined in good faith by nationally recognized registered public accountants or tax counsel selected by the Company, who shall apply the following assumptions: (i) Executive Employee shall be treated as paying federal income taxes at the highest marginal rate in the calendar year in which the Gross-Up Payment is made, and (ii) Executive Employee shall be treated as paying state and local income taxes at the highest marginal rate(s) in the calendar year in which the Gross-Up Payment is made in the locality of ExecutiveEmployee’s residence as of the effective date of ExecutiveEmployee’s termination or resignation, net of the maximum reduction in federal income taxes that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall be made within five business days after the effective date of ExecutiveEmployee’s termination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay Executive Employee within that time an estimate, determined in good faith by the Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but in no event later than the 30th day after the effective date of ExecutiveEmployee’s termination or resignation. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Executive Employee within five business days after written demand. In all events, any Gross-Up Payment made pursuant to this Section 6 shall be paid to Executive Employee no later than the end of the calendar year following the year in which the related taxes are remitted to the applicable taxing authority. If the actual Excise Tax imposed is less than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive Employee shall repay at the time that the amount of the reduced Excise Tax is finally determined the portion of the Gross-Up Payment attributable to that reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax, FICA tax and federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by ExecutiveEmployee, to the extent the repayment results in a reduction in or refund of Excise Tax, FICA tax or federal, state or local income tax), plus interest on the amount of the repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If the actual Excise Tax imposed is more than the amount that was taken into account in determining the amount of the Gross-Up Payment, the Company shall make an additional Gross-Up Payment in respect of such excess (plus interest at the rate provided in Section 1274(b)(2)(B) } of the Code) at the time that the amount of the excess is finally determined.

Golden Parachute Provisions. If either Company or Executive becomes entitled believes that any payment or benefit received or to be received by Executive in connection with a Change of Control or the termination of Executive’s employment, whether pursuant to the paymentsterms of this Agreement, benefits and equity acceleration described the LTIP, or any other plan, arrangement or agreement with Company, any person whose actions result in Sections 3 and 4 and a Change of Control or any person affiliated with Company or such person (all such payments and benefits, together with any other including the payments or transfers of property (collectively and benefits provided for hereunder, hereinafter the “Severance Total Payments”), constitute “parachute” payments under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company shall pay an additional amount (the “Gross-Up Payment”) to Executive. The Gross-Up Payment shall will be equal subject to the amount necessary so that the net amount retained by Executive, after subtracting the parachute excise tax imposed by under Section 4999 of the Code, as amended, or any successor statute then in effect Code (the “Excise Tax”), and after also subtracting all federal, state or local income tax, FICA tax and then an initial determination as to whether the Excise Tax on the Gross-Up Payment, shall will be equal to the net amount Executive would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The amount of the Gross-Up Payment shall be determined in good faith by nationally recognized registered public accountants or tax counsel selected by the Company, who shall apply the following assumptions: (i) Executive shall be treated as paying federal income taxes at the highest marginal rate in the calendar year in which the Gross-Up Payment is made, and (ii) Executive shall be treated as paying state and local income taxes at the highest marginal rate(s) in the calendar year in which the Gross-Up Payment is made in the locality of Executive’s residence as of the effective date of Executive’s termination or resignation, net of the maximum reduction in federal income taxes that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall be made within five business days after the effective date of Executive’s termination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay Executive within that time an estimate, determined in good faith by the Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but in no event later than the 30th day after the effective date of Executive’s termination or resignation. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Executive within five business days after written demand. In all events, any Gross-Up Payment made pursuant to this Section 6 shall be paid to Executive no later than the end of the calendar year following the year in which the related taxes are remitted to the applicable taxing authority. If the actual Excise Tax imposed is less than the amount that was taken into account in determining the amount of the Gross-Up PaymentExcise Tax shall be required pursuant to this Agreement. Such determination shall be made at Company’s expense by an accounting or consulting firm (the “Consultant”) selected by Company and reasonably acceptable to Executive. The Consultant shall provide its determination, together with detailed supporting calculations and documentation, to Company and Executive within 20 days after the date of such Change of Control or termination of Executive’s employment, or such other time as reasonably requested by Company or by Executive, and, if the Consultant determines that no Excise Tax is payable by Executive with respect to a payment or payments, it shall furnish Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to any such payment or payments. Within 10 days after the Consultant delivers its determination to Executive, Executive shall repay at have the time that right to dispute the amount determination. The existence of the reduced Excise Tax is finally determined the a dispute shall not in any way affect Executive’s right to receive any portion of the Gross-Up Payment attributable Total Payments. If there is no dispute, the determination shall be final and conclusive with regard to that reduction (plus the portion Company’s treatment and reporting of the Gross-Up Payment attributable to Total Payments (but such determination shall not prevent Executive from disputing liability for the Excise Tax, FICA tax and federal, state and local income tax imposed on Tax in any controversy with the portion of the Gross-Up Payment being repaid by Executive, to the extent the repayment results in a reduction in Internal Revenue Service or refund of Excise Tax, FICA tax or federal, state or local income taxother taxing authority), plus interest on the amount of the repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If there is a dispute, then Company and Executive shall together select a second Consultant, who will review the actual Excise Tax imposed is more than determination and Executive’s basis for the amount that was taken into account in determining the amount of the Gross-Up Paymentdispute and then render its own determination, the which determination shall be binding, final and conclusive on Company. Company shall make an additional Gross-Up Payment in respect of such excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) at the time bear all costs associated with that the amount of the excess is finally determineddetermination.

Golden Parachute Provisions. If Executive becomes entitled Notwithstanding any provision in this Agreement to the paymentscontrary (other than Sections 7, 15 and 25 of this Agreement which will apply under the circumstances described in those sections and below), if, as of the date of the Change of Control, the Change Entity (after consulting with an independent accounting or compensation consulting company) ascertains that the compensation and benefits and equity acceleration provided to the Executive pursuant to or under this Agreement (other than the Welfare Benefit Replacement Cost as defined in Section 7 of this Agreement or the amounts described in Sections 3 15 and 4 25 of this Agreement, either alone or when combined with other compensation and such payments and benefitsbenefits received by the Executive, together with any other payments or transfers would constitute "parachute payments" within the meaning of property (collectively the “Severance Payments”), constitute “parachute” payments under Section 280G of the Internal Revenue Code of 1986Code, as amended (or the “Code”)regulations adopted thereunder, then the Company shall pay an additional amount compensation and benefits payable pursuant to or under this Agreement (other than the “Gross-Up Payment”Welfare Benefit Replacement Cost and the amounts described in Sections 15 and 25 of this Agreement) to Executive. The Gross-Up Payment shall be equal reduced to the amount extent necessary so that no portion thereof shall be subject to the net amount retained by Executive, after subtracting the parachute excise tax imposed by Section 4999 of the Code, as amended, Internal Revenue Code ("Excise Taxes"). The Executive or any successor statute then in effect (other party entitled to receive the “Excise Tax”)compensation or benefits hereunder may request a determination as to whether the compensation or benefit would constitute a parachute payment and, and after also subtracting all federalif requested, state or local income tax, FICA tax and Excise Tax on the Gross-Up Payment, such determination shall be equal to made by an independent accounting or compensation consulting company (other than the net amount Executive would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The amount entity described in the first sentence of the Gross-Up Payment shall be determined in good faith by nationally recognized registered public accountants or tax counsel this section) selected by the CompanyChange Entity and approved by the party requesting such determination, who shall apply the following assumptions: (i) fees of which will be borne solely by the Change Entity. In the event that any reduction is required under this Section 8, the Executive may select which compensation and benefits shall be treated as paying federal income taxes at reduced and the highest marginal rate in the calendar year in which the Gross-Up Payment is made, and (ii) Executive shall Executive's decision will be treated as paying state and local income taxes at the highest marginal rate(s) in the calendar year in which the Gross-Up Payment is made in the locality of Executive’s residence as of the effective date of Executive’s termination or resignation, net of the maximum reduction in federal income taxes that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall be made within five business days after the effective date of Executive’s termination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay Executive within that time an estimate, determined in good faith by the Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but in no event later than the 30th day after the effective date of Executive’s termination or resignationbinding. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Executive within five business days after written demand. In all events, any Gross-Up Payment made pursuant to this Section 6 shall be paid to Executive no later than the end of the calendar year following the year in which the related taxes are remitted to the applicable taxing authority. If the actual Excise Tax imposed is less than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive shall repay at the time Internal Revenue Service subsequently and finally decides that the amount of compensation and benefits (including after the reduced reduction applied under this Section 8) will generate Excise Taxes on compensation and benefits (other than the Welfare Benefit Replacement Cost and those amounts described in Sections 15 and 25 of this Agreement), the Executive will immediately remit an additional amount to the Change Entity equal to the difference between the amount paid (other than the Welfare Benefit Replacement Cost and those amounts described in Sections 15 and 25 of this Agreement) and the amount paid (other than the Welfare Benefit Replacement Cost and those amounts described in Sections 15 and 25 of this Agreement). Also, the Executive agrees to promptly notify the Change Entity of an assessment or inquiry from the Internal Revenue Service relating to payments under this Agreement that would, if made final, result in imposition of an Excise Tax is finally determined and also agrees to cooperate with the portion Change Entity in resisting any Excise Tax assessment. However, the Change Entity will have complete control over resolution of any claim by the Gross-Up Payment attributable to Internal Revenue Service that reduction might generate an Excise Tax (plus the portion of the Gross-Up Payment attributable although it will have no dispositive power over any other tax matter that may be subject to the Excise Tax, FICA tax same audit) and federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by Executive, to the extent the repayment results in a reduction in or refund of Excise Tax, FICA tax or federal, state or local income tax), plus interest on the amount of the repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If the actual Excise Tax imposed is more than the amount RFC will bear all costs associated with that was taken into account in determining the amount of the Gross-Up Payment, the Company shall make an additional Gross-Up Payment in respect of such excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) at the time that the amount of the excess is finally determinedeffort.

Golden Parachute Provisions. If Executive becomes entitled Notwithstanding any provision in this Agreement to the paymentscontrary (other than Sections 8(b)(ii), benefits 19 and equity acceleration 23 which will apply under the circumstances described in Sections 3 those sections and 4 and such payments and benefits, together with any other payments or transfers of property (collectively the “Severance Payments”below), if, as of the date of the Change of Control, the Change Entity (after consulting with an independent accounting or compensation consulting company) ascertains that the compensation and benefits provided to the Executive pursuant to or under this Agreement (other than the Welfare Benefit Replacement Cost as defined in Section 8(b)(ii) or the amounts described in Section 19 and/or 23, either alone or when combined with other compensation and benefits received by the Executive, would constitute “parachute” payments under "parachute payments" within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (or the “Code”)regulations adopted thereunder, then the Company shall pay an additional amount compensation and benefits payable pursuant to or under this Agreement (other than the “Gross-Up Payment”Welfare Benefit Replacement Cost and the amounts described in Sections 19 and 23) to Executive. The Gross-Up Payment shall be equal reduced to the amount extent necessary so that no portion thereof shall be subject to the net amount retained by Executive, after subtracting the parachute excise tax imposed by Section 4999 of the Code, as amended, Code ("Excise Taxes"). The Executive or any successor statute then in effect (other party entitled to receive the “Excise Tax”)compensation or benefits hereunder may request a determination as to whether the compensation or benefit would constitute a parachute payment and, and after also subtracting all federalif requested, state or local income tax, FICA tax and Excise Tax on the Gross-Up Payment, such determination shall be equal to made by an independent accounting or compensation consulting company (other than the net amount Executive would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The amount entity described in the first sentence of the Gross-Up Payment shall be determined in good faith by nationally recognized registered public accountants or tax counsel this section) selected by the CompanyChange Entity and approved by the party requesting such determination, who shall apply the following assumptions: (i) fees of which will be borne solely by the Change Entity. In the event that any reduction is required under this Section 10, the Executive may select which compensation and benefits shall be treated as paying federal income taxes at reduced and the highest marginal rate in the calendar year in which the Gross-Up Payment is made, and (ii) Executive shall Executive's decision will be treated as paying state and local income taxes at the highest marginal rate(s) in the calendar year in which the Gross-Up Payment is made in the locality of Executive’s residence as of the effective date of Executive’s termination or resignation, net of the maximum reduction in federal income taxes that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall be made within five business days after the effective date of Executive’s termination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay Executive within that time an estimate, determined in good faith by the Company, of the minimum amount of the Gross-Up Payment and shall pay the remainder (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but in no event later than the 30th day after the effective date of Executive’s termination or resignationbinding. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Executive within five business days after written demand. In all events, any Gross-Up Payment made pursuant to this Section 6 shall be paid to Executive no later than the end of the calendar year following the year in which the related taxes are remitted to the applicable taxing authority. If the actual Excise Tax imposed is less than the amount that was taken into account in determining the amount of the Gross-Up Payment, Executive shall repay at the time Internal Revenue Service subsequently and finally decides that the amount of compensation and benefits (including after the reduced reduction applied under this Section 10) will generate Excise Taxes on compensation and benefits (other than the Welfare Benefit Replacement Cost and those amounts described in Sections 19 and 23), the Executive will immediately remit an additional amount to the Change Entity equal to the difference between the amount paid (other than the Welfare Benefit Replacement Cost and those amounts described in Sections 19 and 23) and the amount paid (other than the Welfare Benefit Replacement Cost and those amounts described in Sections 19 and 23). Also, the Executive agrees to promptly notify the Change Entity of an assessment or inquiry from the Internal Revenue Service relating to payments under this Agreement that would, if made final, result in imposition of an Excise Tax is finally determined and also agrees to cooperate with the portion Change Entity in resisting any Excise Tax assessment. However, the Change Entity will have complete control over resolution of any claim by the Gross-Up Payment attributable to Internal Revenue Service that reduction might generate an Excise Tax (plus the portion of the Gross-Up Payment attributable although it will have no dispositive power over any other tax matter that may be subject to the Excise Tax, FICA tax same audit) and federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by Executive, to the extent the repayment results in a reduction in or refund of Excise Tax, FICA tax or federal, state or local income tax), plus interest on the amount of the repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If the actual Excise Tax imposed is more than the amount Corporation will bear all costs associated with that was taken into account in determining the amount of the Gross-Up Payment, the Company shall make an additional Gross-Up Payment in respect of such excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) at the time that the amount of the excess is finally determinedeffort.