Common use of Termination Payment Clause in Contracts

Termination Payment. (i) The “Termination Payment” shall be an amount equal to (A) the Executive’s annual base salary immediately prior to the termination of the Executive’s employment plus (B) the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan for the year in which the termination of the Executive’s employment occurs. The Termination Payment shall be paid to the Executive in cash equivalent ten (10) business days after the date of the executive’s termination of employment with the Company. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, “Total Payments”), would constitute an “excess parachute payment” as defined in Section 280G (or any successor provision) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includable compensation for the base period” as defined in Section 280G(d)(1) (or any successor provision) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Section 280G(d)(3) and (4) (or any successor provisions) of the Code, which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. The opinion of National Tax Counsel shall be addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National Tax Counsel so requests in connection with the opinion required by this Section 8(c)(iii), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive solely with respect to its status under Section 280G of the Code and the regulations thereunder. Within five (5) days after the National Tax Counsel’s opinion is received by the Company and the Executive, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of the Executive such amounts as are then due to the Executive under this Agreement.

Termination Payment. (i) The “Termination Payment” shall be an amount equal to (A) the Executive’s annual base salary immediately prior to the termination of the Executive’s employment plus (B) the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan for the year in which the termination of the Executive’s employment occurs. The Termination Payment shall be paid to the Executive in cash equivalent ten on the first day of the seventh (107th) business days after month following the month in which the Separation from Service occurs, and in such event, the Termination Payment shall be accompanied by a payment of interest calculated using the annual rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the date of the executiveExecutive’s termination of employment with the Companyemployment, compounded quarterly. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, “Total Payments”), would constitute an “excess parachute payment” as defined in Section 280G (or any successor provision) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such taxes) reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In such event, the Gross-Up Payment, if any, shall be reduced by such prior payment. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includable compensation for the base period” as defined in Section 280G(d)(1) (or any successor provision) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Section 280G(d)(3) and (4) (or any successor provisions) of the Code, which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. The opinion of National Tax Counsel shall be addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National Tax Counsel so requests in connection with the opinion required by this Section 8(c)(iii), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive solely with respect to its status under Section 280G of the Code and the regulations thereunder. Within five (5) days after the National Tax Counsel’s opinion is received by the Company and the Executive, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of the Executive such amounts as are then due to the Executive under this Agreement.

Termination Payment. (ia) The “If the Executive's employment is terminated as a result of death or disability, the lump sum Termination Payment” Payment payable to the Executive shall be an amount equal to (A) the Executive’s annual base salary immediately prior to the termination of the Executive’s employment plus (B) the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan 's Gross Income for the year in which preceding the termination of Termination Date. (b) If the Executive’s 's employment occurs. The is terminated by the Executive for Good Reason or by the Company for any reason other than death, disability or Cause, the Termination Payment shall be paid payable to the Executive in cash equivalent ten (10) business days after by the date Company or an affiliate of the executive’s termination Company shall be equal to the Executive's Gross Income for the year preceding the Termination Date. (c) If, during a Change of Control Period, the Executive's employment with is terminated by the Company. Such lump sum payment Executive for Good Reason or by the Company for any reason other than death, Disability, or Cause, the Termination Payment payable to the Executive by the Company or an affiliate of the Company shall not be reduced by any present value or similar factor, two (2.0) times the Executive's Gross Income for the year preceding the Termination Date. (d) It is the intention of the Company and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any that no portion of the Termination Payment or and any other payment "payments in the nature of compensation" (as defined in Section 280G of the Code and the regulations adopted thereunder) to or for the benefit of the Executive under this Agreement, or under any other agreement with agreement, plan or plan of the Company (in the aggregatearrangement, “Total Payments”), would constitute be deemed to be an “"excess parachute payment” " as defined in Section 280G (or any successor provision) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such . It is agreed that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% present value of the Total Payments that would be treated as “parachute payments” shall not exceed an amount equal to two and ninety-nine hundredths (2.99) times the Executive's Base Period Income, which is the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 4999 of the Code or which the Company may pay without loss of deduction under Section 280G (or any successor provision280G(a) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with the regulations issued under Section 1274(b)(2) (or any successor provision) 280G of the Code. Promptly Within sixty (60) days following a Covered delivery of the Notice of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G of the Code Code, the Executive and the Company shall, at the Company's expense, obtain such opinions as more fully described hereafter, which need not be unqualified, of legal counsel and certified public accountants or a firm of recognized executive compensation consultants. The Executive shall select said legal counsel, certified public accountants and executive compensation consultants; provided, however, that if the Company does not accept one (1) or any successor provision)more of the parties selected by the Executive, the Company shall provide the Executive with the names of such legal counsel, certified public accountants and/or executive compensation consultants as the Company may select; provided, further, however, that if the Executive does not accept the party or parties selected by the Company, the legal counsel, certified public accountants and/or executive compensation consultants selected by the Executive and the Company, at the Company’s expenserespectively, shall obtain select the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected legal counsel, certified public accountants and/or executive compensation consultants, whichever is applicable, who shall provide the opinions required by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Companythis Section 13(e), which opinion sets . The opinions required hereunder shall set forth (Aa) the amount of the Base Period IncomeIncome of the Executive, (Bb) the amount and present value of Total Payments, Payments and (Cc) the amount and present value of any excess parachute payments. In the event that such opinions determine that there would be an excess parachute payment, and (D) the amount of any Gross-Up Termination Payment or the reduction of any other payment determined by such counsel to be includable in Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includable compensation for the base period” as defined in Section 280G(d)(1) (or any successor provision) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined reduced or eliminated as specified by the Company’s independent auditors Executive in accordance with the principles of Section 280G(d)(3) and (4) (or any successor provisions) of the Code, which determination shall be evidenced in a certificate of such auditors addressed writing delivered to the Company and within thirty (30) days of his or her receipt of such opinions or, if the ExecutiveExecutive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no excess parachute payment. The opinion provisions of National Tax Counsel this Section 13(e), including the calculations, notices and opinions provided for herein shall be addressed based upon the conclusive presumption that the compensation and other benefits, including but not limited to the Company and Accrued Benefits, earned on or after the date of Change of Control by the Executive and shall be binding upon pursuant to the Company and Company's compensation programs if such payments would have been made in the Executive. If future in any event, even though the timing of such National Tax Counsel payment is triggered by the Change of Control, are reasonable compensation for services rendered prior to the Change of Control; provided, however, that in the event legal counsel so requests in connection with the opinion required by this Section 8(c)(iii13(e), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants consultants, selected by the Executive and the Company pursuant to the procedures set forth above, shall provide an opinion, upon which such legal counsel may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered prior to be received the Change of Control by the Executive solely with respect to its status under Section Executive. In the event that the provisions of Sections 280G and 4999 of the Code and the regulations thereunder. Within five are repealed without succession, this Section 13(e) shall be of no further force or effect. (5f) The Termination Payment shall be payable in a lump sum not later than ten (10) days after the National Tax Counsel’s opinion is received by the Company and following the Executive's Termination Date. Such lump sum payment shall not be reduced by any present value or similar factor. Further, the Company Executive shall pay (not be required to mitigate the amount of such payment by securing other employment or cause to otherwise and such payment shall not be paid) or distribute (or cause to be distributed) to or for the benefit reduced by reason of the Executive such amounts as are then due to the Executive under this Agreementsecuring other employment or for any other reason.

Termination Payment. (i) The Subject to Section 9(a)(iii), the “Termination Payment” shall be an amount equal to the Annual Cash Compensation times two (A2). (ii) the Executive’s annual base salary immediately prior to the termination of the Executive’s employment plus (B) the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan for the year in which the termination of the Executive’s employment occurs. The Termination Payment and the Prorated Bonus shall be paid to the Executive in cash equivalent on the first day of the seventh month following the month in which the Executive’s Separation from Service occurs, without interest thereon; provided that, if on the date of the Executive’s Separation from Service, neither the Company nor any other entity that is considered a “service recipient” with respect to the Executive within the meaning of Code Section 409A has any stock which is publicly traded on an established securities market (within the meaning of Treasury Regulation Section 1.897-1(m)) or otherwise, then the Termination Payment and the Prorated Bonus shall be paid to the Executive in cash equivalent within ten (10) business days after the Termination Date, or if the Executive’s Termination Date is pursuant to Section 2(b), within ten (10) business days after the date of the executive’s termination Change in Control of employment with the CompanyCompany (as defined without reference to Section 2(b)). Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment and Prorated Bonus by securing other employment or otherwise, nor will such Termination Payment and Prorated Bonus be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment and Prorated Bonus shall be in lieu of, and acceptance by the Executive of the Termination Payment and Prorated Bonus shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (iiiii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company Employer (in the aggregate, “Total Payments”), would constitute an “excess parachute payment,” as defined in Section 280G (or any successor provision) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company Executive shall pay have the option to have the Total Payments to be made to the Executive an additional amount (the “Gross-Up Payment”) reduced such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) value of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the aggregate Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined Payments that the Executive is entitled to a Gross-Up Payment, but that receive shall be One Dollar ($1) less than the Total Payments would not be maximum amount which the Executive may receive without becoming subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” tax imposed under Section 280G (or any successor provision) 4999 of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly Within 40 days following a Covered Termination or notice by the Company one party to the Executive other of its belief that there is a payment or benefit due the Executive which that will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision)Code, the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, payments determined without regard to any reduction of Total Payments pursuant to this Section 9(a)(ii) and (D) the amount net after-tax proceeds to the Executive, taking into account the tax imposed under Section 4999 of any Gross-Up Payment or the reduction of any Code if (x) the Total Payments to were reduced in accordance with the Safe Harbor Cap, as first sentence of this Section 9(a)(iii) or (y) the case may beTotal Payments were not so reduced. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includable compensation for the base period” as defined in Section 280G(d)(1) (or any successor provision) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Section 280G(d)(3) and (4) (or any successor provisions) of the Code, which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. The opinion of National Tax Counsel shall be addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National Tax Counsel opinion determines that there would be an excess parachute payment, then, at the Executive’s sole discretion, the Termination Payment hereunder or any other payment or benefit determined by such counsel to be includable in Total Payments may be reduced or eliminated as specified by the Executive in writing delivered to the Company within thirty days of his receipt of such opinion so that under the bases of calculations set forth in such opinion there will be no excess parachute payment. If such National Tax Counsel so requests in connection with the opinion required by this Section 8(c)(iii9(a), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive solely with respect to its status under Section 280G of the Code and the regulations thereunder. Within five (5) days after the National Tax Counsel’s opinion is received by the Company and the Executive, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of the Executive such amounts as are then due to the Executive under this Agreement.

Termination Payment. (i) The “Subject to the limits set forth in Subsection 9.2(ii), the Termination Payment” Payment shall be an amount equal to (A) the Executive’s 's annual base salary salary, as in effect immediately prior to the termination Change in Control of the Executive’s employment Company, as adjusted upward, from time to time, pursuant to Section 6, plus (B) the Executive’s target amount of the highest annual bonus under award (determined on an annualized basis for any bonus award paid for a period of less than one year) paid to the Company’s Senior Management Bonus Plan for Executive with respect to the year two complete fiscal years preceding the Termination Date (the aggregate amount set forth in which the termination (A) and (B) hereof shall be referred to as "Annual Cash Compensation"), times (C) a factor of the Executive’s employment occurs2. The Termination Payment shall be paid to the Executive in cash equivalent ten (10) business days after the date of the executive’s termination of employment with the CompanyTermination Date. Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive Executive's securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by addition to any other severance payments to which the Executive is entitled under the Company's severance policies and practices as in effect immediately prior to the Change in Control of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreementCompany. (ii) Notwithstanding any other provision of this Agreementcontrary provision, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, “Total Payments”), would constitute an “"excess parachute payment” as defined in ," then the Termination Payment shall be reduced such that the value of the Termination Payment the Executive will receive shall be One Dollar ($1) less than the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 280G 4999 of the Code (or any successor provision) or which the Company may pay without loss of deduction under Section 280G(a) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the The terms “"excess parachute payment” " and “"parachute payments” " shall have the meanings assigned to them in Section 280G of the Code (or any successor provision) of the Code ), and such “"parachute payments” " shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision), . If the Executive provisions of Sections 280G and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount 4999 of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includable compensation for the base period” as defined in Section 280G(d)(1) (or any successor provision) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Section 280G(d)(3) and (4) Code (or any successor provisions) of the Codeare repealed without succession, which determination then this Section 9.2(ii) shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. The opinion of National Tax Counsel shall be addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National Tax Counsel so requests in connection with the opinion required by this Section 8(c)(iii), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive solely with respect to its status under Section 280G of the Code and the regulations thereunder. Within five (5) days after the National Tax Counsel’s opinion is received by the Company and the Executive, the Company shall pay (no further force or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of the Executive such amounts as are then due to the Executive under this Agreementeffect.

Termination Payment. (ia) The “If the Executive's employment is terminated as a result of death or Disability, the Executive shall receive a Termination Payment” shall be an amount Payment equal to one (A1.0) times the Executive’s annual base salary immediately 's Gross Income. The Company will also pay the full medical, dental and vision premiums for continuation coverage under COBRA for the Executive and dependents who qualify for continuation coverage under COBRA for one year following Termination Date. (b) If, prior to the termination a Change of Control Period, the Executive’s 's employment plus (B) is terminated by the Executive’s target annual bonus under Executive for Good Reason or by the Company’s Senior Management Bonus Plan Company for any reason other than death, Disability or Cause, the year in which the termination of the Executive’s employment occurs. The Termination Payment shall be paid payable to the Executive in cash equivalent ten (10) business days after by the date Company or an affiliate of the executive’s termination Company shall be equal to one (1.0) times the Executive's Gross Income. The Company will pay the full medical, dental and vision premiums for continuation coverage under COBRA for the Executive and dependents who qualify for continuation coverage under COBRA for one year following the Termination Date. (c) If, during a Change of Control Period, the Executive's employment with is terminated by the CompanyExecutive for Good Reason During a Change of Control or by the Company for any reason other than death, Disability, or Cause, the Termination Payment payable to the Executive by the Company or an affiliate of the Company shall be one (1.0) times the Executive's Gross Income. Such lump sum payment shall not be reduced by any present value or similar factorThe Company will pay the full medical, dental and vision premiums for continuation coverage under COBRA and, after expiration of the COBRA continuation period, for conversion coverage for the Executive and dependents who qualify for continuation coverage under COBRA for one (1) year following the Termination Date. (d) It is the intention of the Company and the Executive shall not be required to mitigate that the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment benefits under this Agreement shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any capped such that no portion of the Termination Payment or and any other payment "payments in the nature of compensation" (as defined in Section 280G of the Code and the regulations adopted thereunder) to or for the benefit of the Executive under this Agreement, or under any other agreement with agreement, plan or plan of the Company (in the aggregatearrangement, “Total Payments”), would constitute shall be deemed to be an “"excess parachute payment” " as defined in Section 280G (or any successor provision) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such . It is agreed that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% present value of the Total Payments that would be treated as “parachute payments” shall not exceed an amount equal to two and ninety-nine hundredths (2.99) times the Executive's Base Period Income, which is the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 4999 of the Code or which the Company may pay without loss of deduction under Section 280G (or any successor provision280G(a) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with the regulations issued under Section 1274(b)(2) (or any successor provision) 280G of the Code. Promptly Within sixty (60) days following a Covered delivery of the Notice of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G of the Code Code, the Executive and the Company shall, at the Company's expense, obtain such opinions as more fully described hereafter, which need not be unqualified, of legal counsel and certified public accountants or a firm of recognized executive compensation consultants. The Executive shall select said legal counsel, certified public accountants and executive compensation consultants; provided, however, that if the Company does not accept one (1) or any successor provision)more of the parties selected by the Executive, the Company shall provide the Executive with the names of such legal counsel, certified public accountants and/or executive compensation consultants as the Company may select; provided, further, however, that if the Executive does not accept the party or parties selected by the Company, the legal counsel, certified public accountants and/or executive compensation consultants selected by the Executive and the Company, at the Company’s expenserespectively, shall obtain select the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected legal counsel, certified public accountants and/or executive compensation consultants, whichever is applicable, who shall provide the opinions required by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Companythis Section 13(d), which opinion sets . The opinions required hereunder shall set forth (Aa) the amount of the Base Period IncomeIncome of the Executive, (Bb) the amount and present value of Total Payments, Payments and (Cc) the amount and present value of any excess parachute payments. In the event that such opinions determine that there would be an excess parachute payment, and (D) the amount of any Gross-Up Termination Payment or the reduction of any other payment determined by such counsel to be includable in Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includable compensation for the base period” as defined in Section 280G(d)(1) (or any successor provision) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined reduced or eliminated as specified by the Company’s independent auditors Executive in accordance with the principles of Section 280G(d)(3) and (4) (or any successor provisions) of the Code, which determination shall be evidenced in a certificate of such auditors addressed writing delivered to the Company and within thirty (30) days of his or her receipt of such opinions or, if the ExecutiveExecutive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no excess parachute payment. The opinion provisions of National Tax Counsel this Section 13(d), including the calculations, notices and opinions provided for herein shall be addressed based upon the conclusive presumption that the compensation and other benefits, including but not limited to the Company and Gross Income, earned on or after the date of a Change of Control by the Executive and shall be binding upon pursuant to the Company and Company's compensation programs if such payments would have been made in the Executive. If future in any event, even though the timing of such National Tax Counsel payment is triggered by the Change of Control, are reasonable compensation for services rendered prior to the Change of Control; provided, however, that in the event legal counsel so requests in connection with the opinion required by this Section 8(c)(iii13(d), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants consultants, selected by the Executive and the Company pursuant to the procedures set forth above, shall provide an opinion, upon which such legal counsel may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered prior to be received the Change of Control by the Executive solely with respect to its status under Section Executive. In the event that the provisions of Sections 280G and 4999 of the Code and are repealed without succession, this Section 13(d) shall be of no further force or effect. (e) The Termination Payment shall be payable as follows: (i) In the regulations thereunder. Within five event the Executive's Termination Date is during a Change of Control Period, any Termination Payment shall be paid to the Executive in a lump sum not later than ten (510) days following the Executive's Termination Date. Such lump sum payment shall not be reduced by any present value, interest rate, or similar factor. Further, the Executive shall not be required to mitigate the amount of such payment by securing other employment or otherwise and such payment shall not be reduced by reason of the Executive securing other employment or for any other reason. (ii) In the event the Executive's Termination Date is prior to or after a Change of Control Period, any Termination Payment shall be paid to the National Tax Counsel’s opinion Executive in equal installments on the Company's twenty-six (26) regular bi-weekly paydays over the twelve-month period following the Termination Date. Such payments shall not be reduced or increased by any present value, interest rate, or similar factor. Further, the Executive shall not be required to mitigate the amount of such payment by securing other employment or otherwise and such payment shall not be reduced by reason of the Executive securing other employment or for any other reason. (f) Notwithstanding anything to the contrary herein, in no event will a termination of Executive's employment with the Company be deemed to trigger a right to receive a Termination Payment if the termination is received effected by the mutual agreement of the Company and Executive to accommodate a reassignment of Executive to an entity created or acquired by the Company, or to which the Company has contributed rights to technology, assets or business plans, if at the time of such termination the Company owns or is acquiring a minimum of a 19% equity interest in such entity. In the event of any such termination, the Executive shall only be entitled to receive the Executive, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit 's Accrued Benefits as of the Executive such amounts as are then due to the Executive under this AgreementTermination Date.

Termination Payment. (i) The Subject to the limits set forth in Section 8(a)(ii), for purposes of this Agreement, the “Termination Payment” shall be an amount equal to (A) the Executive’s annual base salary immediately prior to Annual Cash Compensation multiplied by the termination number of years or fractional portion thereof remaining in the Employment Period determined as of the Executive’s employment plus (B) Termination Date, except that the Executive’s target annual bonus under Termination Payment shall not be less than the Company’s Senior Management Bonus Plan for the year in which the termination amount of the Executive’s employment occursAnnual Cash Compensation. The Termination Payment shall be paid to the Executive in cash equivalent not later than ten (10) business days after the date of the executive’s termination of employment with the CompanyTermination Date. Such lump sum payment shall not be reduced by any present value or similar factor, and the The Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company or the Employer (in the aggregate, aggregate “Total Payments”), would constitute an “excess parachute payment,” as defined in then the Total Payments to be made to the Executive shall be reduced such that the value of the aggregate Total Payments that the Executive is entitled to receive shall be One Dollar ($1) less than the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 280G 4999 of the Code (or any successor provision) or which the Company may pay without loss of deduction under Section 280G(a) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G of the Code (or any successor provision) of the Code ), and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) of the Code (or any successor provision) ). Within sixty days following delivery of the Code. Promptly following a Covered Notice of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to in the Company)Executive’s sole discretion, which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, Payments and (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments payments without regard to the Safe Harbor Cap, as the case may belimitations of this Section 8(a)(ii). As used in this AgreementSection 8(a)(ii), the term “Base Period Income” means an amount equal to the Executive’s “annualized includable compensation for the base period” as defined in Section 280G(d)(1) of the Code (or any successor provision) of the Code). For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Section Sections 280G(d)(3) and (4) (or any successor provisions) of the Code, which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. The opinion of National Tax Counsel shall be addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National Tax Counsel so requests in connection with the opinion required by this Section 8(c)(iii), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive solely with respect to its status under Section 280G of the Code and the regulations thereunder. Within five (5) days after the National Tax Counsel’s opinion is received by the Company and the Executive, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of the Executive such amounts as are then due to the Executive under this Agreement.and

Termination Payment. (i) The Subject to Section 9(a)(iii), the “Termination Payment” shall be an amount equal to the Annual Cash Compensation times two (A2). (ii) the Executive’s annual base salary immediately prior to the termination of the Executive’s employment plus (B) the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan for the year in which the termination of the Executive’s employment occurs. The Termination Payment and the Prorated Bonus shall be paid to the Executive in cash equivalent on the first day of the seventh month following the month in which the Executive’s Separation from Service occurs, without interest thereon; provided that, if on the date of the Executive’s Separation from Service, neither the Company nor any other entity that is considered a “service recipient” with respect to the Executive within the meaning of Code Section 409A has any stock which is publicly traded on an established securities market (within the meaning of Treasury Regulation Section 1.897-1(m)) or otherwise, then the Termination Payment and the Prorated Bonus shall be paid to the Executive in cash equivalent within ten (10) business days after the Termination Date, or if the Executive’s Termination Date is pursuant to Section 2(b), within ten (10) business days after the date of the executive’s termination Change in Control of employment with the CompanyCompany (as defined without reference to Section 2(b)). Such lump sum payment shall not be reduced by any present value or similar factor, and the Executive shall not be required to mitigate the amount of the Termination Payment and Prorated Bonus by securing other employment or otherwise, nor will such Termination Payment and Prorated Bonus be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment and Prorated Bonus shall be in lieu of, and acceptance by the Executive of the Termination Payment and Prorated Bonus shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (iiiii) Notwithstanding Subject to Section 26 of this Agreement, notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company Employer (in the aggregate, “Total Payments”), would constitute an “excess parachute payment,” as defined in Section 280G (or any successor provision) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company Executive shall pay have the option to have the Total Payments to be made to the Executive an additional amount (the “Gross-Up Payment”) reduced such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) value of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the aggregate Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined Payments that the Executive is entitled to a Gross-Up Payment, but that receive shall be One Dollar ($1) less than the Total Payments would not be maximum amount which the Executive may receive without becoming subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” tax imposed under Section 280G (or any successor provision) 4999 of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly Within 40 days following a Covered Termination or notice by the Company one party to the Executive other of its belief that there is a payment or benefit due the Executive which that will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision)Code, the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, payments determined without regard to any reduction of Total Payments pursuant to this Section 9(a)(ii) and (D) the amount net after-tax proceeds to the Executive, taking into account the tax imposed under Section 4999 of any Gross-Up Payment or the reduction of any Code if (x) the Total Payments to were reduced in accordance with the Safe Harbor Cap, as first sentence of this Section 9(a)(iii) or (y) the case may beTotal Payments were not so reduced. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includable compensation for the base period” as defined in Section 280G(d)(1) (or any successor provision) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Section 280G(d)(3) and (4) (or any successor provisions) of the Code, which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. The opinion of National Tax Counsel shall be addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National Tax Counsel opinion determines that there would be an excess parachute payment, then, at the Executive’s sole discretion, the Termination Payment hereunder or any other payment or benefit determined by such counsel to be includable in Total Payments may be reduced or eliminated as specified by the Executive in writing delivered to the Company within thirty days of his receipt of such opinion so that under the bases of calculations set forth in such opinion there will be no excess parachute payment. If such National Tax Counsel so requests in connection with the opinion required by this Section 8(c)(iii9(a), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive solely with respect to its status under Section 280G of the Code and the regulations thereunder. Within five (5) days after the National Tax Counsel’s opinion is received by the Company and the Executive, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of the Executive such amounts as are then due to the Executive under this Agreement.

Termination Payment. (ia) The “Termination Payment” shall be an amount equal to (A) the Executive’s annual base salary immediately prior to the termination of If the Executive’s employment plus is terminated as a result of death or Disability, the Executive shall receive a Termination Payment equal to one (B1.0) times the Executive’s target annual bonus Gross Income. The Company will also pay the full medical, dental and vision premiums for continuation coverage under the Company’s Senior Management Bonus Plan COBRA for the Executive and dependents who qualify for continuation coverage under COBRA for one year in which the termination following Termination Date. (b) If, prior to a Change of Control Period, the Executive’s employment occurs. The is terminated by the Executive for Good Reason or by the Company for any reason other than death, Disability or Cause, the Termination Payment shall be paid payable to the Executive in cash equivalent ten (10) business days after by the date Company or an affiliate of the executiveCompany shall be equal to one (1.0) times the Executive’s termination Gross Income. The Company will pay the full medical, dental and vision premiums for continuation coverage under COBRA for the Executive and dependents who qualify for continuation coverage under COBRA for one year following the Termination Date. (c) If, during a Change of Control Period, the Executive’s employment with is terminated by the CompanyExecutive for Good Reason During a Change of Control or by the Company for any reason other than death, Disability, or Cause, the Termination Payment payable to the Executive by the Company or an affiliate of the Company shall be one (1.0) times the Executive’s Gross Income. Such lump sum payment shall not be reduced by any present value or similar factorThe Company will pay the full medical, dental and vision premiums for continuation coverage under COBRA for the Executive and dependents who qualify for continuation coverage under COBRA for one (1) year following the Termination Date. (d) It is the intention of the Company and the Executive shall not be required to mitigate that the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment benefits under this Agreement shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any capped such that no portion of the Termination Payment or and any other payment “payments in the nature of compensation” (as defined in Section 280G of the Code and the regulations adopted thereunder) to or for the benefit of the Executive under this Agreement, or under any other agreement with agreement, plan or plan of the Company (in the aggregatearrangement, “Total Payments”), would constitute shall be deemed to be an “excess parachute payment” as defined in Section 280G (or any successor provision) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such . It is agreed that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% present value of the Total Payments that would be treated as “parachute payments” shall not exceed an amount equal to two and ninety-nine hundredths (2.99) times the Executive’s Base Period Income, which is the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 4999 of the Code or which the Company may pay without loss of deduction under Section 280G (or any successor provision280G(a) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with the regulations issued under Section 1274(b)(2) (or any successor provision) 280G of the Code. Promptly Within sixty (60) days following a Covered delivery of the Notice of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G of the Code (or any successor provision)Code, the Executive and the CompanyCompany shall, at the Company’s expense, shall obtain the opinion (such opinions as more fully described hereafter, which need not be unqualified, of legal counsel and certified public accountants or a firm of recognized executive compensation consultants. The Executive shall select said legal counsel, certified public accountants and executive compensation consultants; provided, however, that if the Company does not accept one (1) or more of nationally recognized tax counsel (“National Tax Counsel”) the parties selected by the Executive, the Company shall provide the Executive with the names of such legal counsel, certified public accountants and/or executive compensation consultants as the Company may select; provided, further, however, that if the Executive does not accept the party or parties selected by the Company’s independent auditors and reasonably acceptable to , the legal counsel, certified public accountants and/or executive compensation consultants selected by the Executive (which may be regular outside counsel to and the Company, respectively, shall select the legal counsel, certified public accountants and/or executive compensation consultants, whichever is applicable, who shall provide the opinions required by this Section 13(d), which opinion sets . The opinions required hereunder shall set forth (Aa) the amount of the Base Period IncomeIncome of the Executive, (Bb) the amount and present value of Total Payments, Payments and (Cc) the amount and present value of any excess parachute payments. In the event that such opinions determine that there would be an excess parachute payment, and (D) the amount of any Gross-Up Termination Payment or the reduction of any other payment determined by such counsel to be includable in Total Payments shall be reduced or eliminated as specified by the Executive in writing delivered to the Safe Harbor CapCompany within thirty (30) days of his or her receipt of such opinions or, if the Executive fails to so notify the Company, then as the case may beCompany shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no excess parachute payment. As used in The provisions of this AgreementSection 13(d), including the term “Base Period Income” means an amount equal calculations, notices and opinions provided for herein shall be based upon the conclusive presumption that the compensation and other benefits, including but not limited to the Executive’s “annualized includable compensation for Gross Income, earned on or after the base period” as defined in Section 280G(d)(1) (or any successor provision) date of a Change of Control by the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by Executive pursuant to the Company’s independent auditors compensation programs if such payments would have been made in accordance with the principles of Section 280G(d)(3) and (4) (or future in any successor provisions) of event, even though the Code, which determination shall be evidenced in a certificate timing of such auditors addressed payment is triggered by the Change of Control, are reasonable compensation for services rendered prior to the Company and Change of Control; provided, however, that in the Executive. The opinion of National Tax Counsel shall be addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National Tax Counsel event legal counsel so requests in connection with the opinion required by this Section 8(c)(iii13(d), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants consultants, selected by the Executive and the Company pursuant to the procedures set forth above, shall provide an opinion, upon which such legal counsel may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered prior to be received the Change of Control by the Executive solely with respect to its status under Section Executive. In the event that the provisions of Sections 280G and 4999 of the Code and are repealed without succession, this Section 13(d) shall be of no further force or effect. (e) The Termination Payment shall be payable as follows: (i) In the regulations thereunder. Within five event the Executive’s Termination Date is during a Change of Control Period, any Termination Payment shall be paid to the Executive in a lump sum not later than ten (510) days following the Executive’s Termination Date. Such lump sum payment shall not be reduced by any present value, interest rate, or similar factor. Further, the Executive shall not be required to mitigate the amount of such payment by securing other employment or otherwise and such payment shall not be reduced by reason of the Executive securing other employment or for any other reason. (ii) In the event the Executive’s Termination Date is prior to or after a Change of Control Period, any Termination Payment shall be paid to the National Tax CounselExecutive in equal installments on the Company’s opinion twenty-six (26) regular bi-weekly paydays over the twelve-month period following the Termination Date. Such payments shall not be reduced or increased by any present value, interest rate, or similar factor. Further, the Executive shall not be required to mitigate the amount of such payment by securing other employment or otherwise and such payment shall not be reduced by reason of the Executive securing other employment or for any other reason. (f) Notwithstanding anything to the contrary herein, in no event will a termination of Executive’s employment with the Company be deemed to trigger a right to receive a Termination Payment if the termination is received effected by the mutual agreement of the Company and Executive to accommodate a reassignment of Executive to an entity created or acquired by the Company, or to which the Company has contributed rights to technology, assets or business plans, if at the time of such termination the Company owns or is acquiring a minimum of a 19% equity interest in such entity. In the event of any such termination, the Executive shall only be entitled to receive the Executive, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit ’s Accrued Benefits as of the Executive such amounts as are then due to the Executive under this AgreementTermination Date.

Termination Payment. (i) The Subject to the limits set forth in Section 8(a)(ii), for purposes of this Agreement, the “Termination Payment” shall be an amount equal to (A) the Executive’s annual base salary immediately prior to Annual Cash Compensation multiplied by the termination number of years or fractional portion thereof remaining in the Employment Period determined as of the Executive’s employment plus (B) Termination Date, except that the Executive’s target annual bonus under Termination Payment shall not be less than the Company’s Senior Management Bonus Plan for the year in which the termination amount of the Executive’s employment occursAnnual Cash Compensation. The Termination Payment shall be paid to the Executive in cash equivalent not later than ten (10) business days after the date of the executive’s termination of employment with the CompanyTermination Date. Such lump sum payment shall not be reduced by any present value or similar factor, and the The Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company or the Employer (in the aggregate, aggregate “Total Payments”), would constitute an “excess parachute payment,” as defined in then the Total Payments to be made to the Executive shall be reduced such that the value of the aggregate Total Payments that the Executive is entitled to receive shall be One Dollar ($1) less than the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 280G 4999 of the Code (or any successor provision) or which the Company may pay without loss of deduction under Section 280G(a) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G of the Code (or any successor provision) of the Code ), and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) of the Code (or any successor provision) ). Within sixty days following delivery of the Code. Promptly following a Covered Notice of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to in the Company)Executive’s sole discretion, which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, Payments and (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments payments without regard to the Safe Harbor Cap, as the case may belimitations of this Section 8(a)(ii). As used in this AgreementSection 8(a)(ii), the term “Base Period Income” means an amount equal to the Executive’s “annualized includable compensation for the base period” as defined in Section 280G(d)(1) of the Code (or any successor provision) of the Code). For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Section Sections 280G(d)(3) and (4) of the Code (or any successor provisions) of the Code), which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. The Such opinion of National Tax Counsel shall be dated as of the Termination Date and addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National Tax Counsel opinion determines that there would be an excess parachute payment, then the Termination Payment hereunder or any other payment determined by such counsel to be includable in Total Payments shall be reduced or eliminated as specified by the Executive in writing delivered to the Company within thirty days of the Executive’s receipt of such opinion or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculations set forth in such opinion there will be no excess parachute payment. If such counsel so requests in connection with the opinion required by this Section 8(c)(iii)Section, the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel counsel may rely onon in providing the opinion, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive. Notwithstanding the foregoing, the provisions of this Section 8(a)(ii), including the calculations, notices and opinions provided for herein, shall be based upon the conclusive presumption that the following are reasonable: (1) the compensation and benefits provided for in Section 5 and (2) any other compensation, including but not limited to the Accrued Benefits, earned prior to the Termination Date by the Executive solely with respect pursuant to its status under Section the Company’s compensation programs if such payments would have been made in the future in any event, even though the timing of such payment is triggered by the Change in Control or the Termination Date. If the provisions of Sections 280G and 4999 of the Code and the regulations thereunder. Within five (5) days after the National Tax Counsel’s opinion is received by the Company and the Executive, the Company shall pay (or cause to any successor provisions) are repealed without succession, then this Section 8(a)(ii) shall be paid) of no further force or distribute (or cause to be distributed) to or for the benefit of the Executive such amounts as are then due to the Executive under this Agreementeffect.

Termination Payment. (ia) The “Termination Payment” shall be an amount equal to (A) the Executive’s annual base salary immediately prior to the termination of If the Executive’s employment plus is terminated as a result of death or Disability, the Executive shall receive a Termination Payment equal to one (B1.0) times the Executive’s target annual bonus under Gross Income. The Company will reimburse the Company’s Senior Management Bonus Plan Executive for the full medical, dental and vision premiums for continuation coverage under COBRA for the Executive and dependents who qualify for continuation coverage under COBRA for one year in which the termination following Termination Date. (b) If, prior to a Change of Control Period, the Executive’s employment occurs. The is terminated by the Executive for Good Reason or by the Company for any reason other than death, Disability or Cause, the Termination Payment shall be paid payable to the Executive in cash equivalent ten (10) business days after by the date Company or an affiliate of the executiveCompany shall be equal to one (1.0) times the Executive’s termination Gross Income. The Company will reimburse the Executive for the full medical, dental and vision premiums for continuation coverage under COBRA for the Executive and dependents who qualify for continuation coverage under COBRA for one year following the Termination Date. (c) If, during a Change of Control Period, the Executive’s employment with is terminated by the CompanyExecutive for Good Reason During a Change of Control or by the Company for any reason other than death, Disability, or Cause, the Termination Payment payable to the Executive by the Company or an affiliate of the Company shall be one (1.0) times the Executive’s Gross Income. Such lump sum payment shall not be reduced by any present value or similar factorThe Company will reimburse the Executive for the full medical, dental and vision premiums for continuation coverage under COBRA for the Executive and dependents who qualify for continuation coverage under COBRA for one (1) year following the Termination Date. (d) It is the intention of the Company and the Executive shall not be required to mitigate that the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment benefits under this Agreement shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any capped such that no portion of the Termination Payment or and any other payment “payments in the nature of compensation” (as defined in Section 280G of the Code and the regulations adopted thereunder) to or for the benefit of the Executive under this Agreement, or under any other agreement with agreement, plan or plan of the Company (in the aggregatearrangement, “Total Payments”), would constitute shall be deemed to be an “excess parachute payment” as defined in Section 280G (or any successor provision) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such . It is agreed that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% present value of the Total Payments that would be treated as “parachute payments” shall not exceed an amount equal to two and ninety-nine hundredths (2.99) times the Executive’s Base Period Income, which is the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 4999 of the Code or which the Company may pay without loss of deduction under Section 280G (or any successor provision280G(a) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with the regulations issued under Section 1274(b)(2) (or any successor provision) 280G of the Code. Promptly Within sixty (60) days following a Covered delivery of the Notice of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G of the Code (or any successor provision)Code, the Executive and the CompanyCompany shall, at the Company’s expense, shall obtain the opinion (such opinions as more fully described hereafter, which need not be unqualified, of legal counsel and certified public accountants or a firm of recognized executive compensation consultants. The Executive shall select said legal counsel, certified public accountants and executive compensation consultants; provided, however, that if the Company does not accept one (1) or more of nationally recognized tax counsel (“National Tax Counsel”) the parties selected by the Executive, the Company shall provide the Executive with the names of such legal counsel, certified public accountants and/or executive compensation consultants as the Company may select; provided, further, however, that if the Executive does not accept the party or parties selected by the Company’s independent auditors and reasonably acceptable to , the legal counsel, certified public accountants and/or executive compensation consultants selected by the Executive (which may be regular outside counsel to and the Company, respectively, shall select the legal counsel, certified public accountants and/or executive compensation consultants, whichever is applicable, who shall provide the opinions required by this Section 13(d), which opinion sets . The opinions required hereunder shall set forth (Aa) the amount of the Base Period IncomeIncome of the Executive, (Bb) the amount and present value of Total Payments, Payments and (Cc) the amount and present value of any excess parachute payments. In the event that such opinions determine that there would be an excess parachute payment, and (D) the amount of any Gross-Up Termination Payment or the reduction of any other payment determined by such counsel to be includable in Total Payments shall be reduced or eliminated as specified by the Executive in writing delivered to the Safe Harbor CapCompany within thirty (30) days of his or her receipt of such opinions or, if the Executive fails to so notify the Company, then as the case may beCompany shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no excess parachute payment. As used in The provisions of this AgreementSection 13(d), including the term “Base Period Income” means an amount equal calculations, notices and opinions provided for herein shall be based upon the conclusive presumption that the compensation and other benefits, including but not limited to the Executive’s “annualized includable compensation for Gross Income, earned on or after the base period” as defined in Section 280G(d)(1) (or any successor provision) date of a Change of Control by the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by Executive pursuant to the Company’s independent auditors compensation programs if such payments would have been made in accordance with the principles of Section 280G(d)(3) and (4) (or future in any successor provisions) of event, even though the Code, which determination shall be evidenced in a certificate timing of such auditors addressed payment is triggered by the Change of Control, are reasonable compensation for services rendered prior to the Company and Change of Control; provided, however, that in the Executive. The opinion of National Tax Counsel shall be addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National Tax Counsel event legal counsel so requests in connection with the opinion required by this Section 8(c)(iii13(d), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants consultants, selected by the Executive and the Company pursuant to the procedures set forth above, shall provide an opinion, upon which such legal counsel may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered prior to be received the Change of Control by the Executive solely with respect to its status under Section Executive. In the event that the provisions of Sections 280G and 4999 of the Code and are repealed without succession, this Section 13(d) shall be of no further force or effect. (e) The Termination Payment shall be payable as follows: (i) In the regulations thereunder. Within five event the Executive’s Termination Date is during a Change of Control Period, any Termination Payment shall be paid to the Executive in a lump sum not later than ten (510) days following the Executive’s Termination Date. Such lump sum payment shall not be reduced by any present value, interest rate, or similar factor. Further, the Executive shall not be required to mitigate the amount of such payment by securing other employment or otherwise and such payment shall not be reduced by reason of the Executive securing other employment or for any other reason. (ii) In the event the Executive’s Termination Date is prior to or after a Change of Control Period, any Termination Payment shall be paid to the National Tax CounselExecutive in equal installments on the Company’s opinion regular paydays over the twelve-month period following the Termination Date. Such payments shall not be reduced or increased by any present value, interest rate, or similar factor. Further, the Executive shall not be required to mitigate the amount of such payment by securing other employment or otherwise and such payment shall not be reduced by reason of the Executive securing other employment or for any other reason. (f) Notwithstanding anything to the contrary herein, in no event will a termination of the Executive’s employment with the Company be deemed to trigger a right to receive a Termination Payment if the termination is received effected by the mutual agreement of the Company and the Executive, the Company shall pay (or cause Executive to be paid) or distribute (or cause to be distributed) to or for the benefit accommodate a reassignment of the Executive to an entity created or acquired by the Company or Spitz, or to which the Company or Spitz has contributed rights to technology, assets or business plans, if at the time of such amounts as are then due to termination the Company or Spitz owns or is acquiring a minimum of a 19% equity interest in such entity. In the event of any such termination, the Executive under this Agreementshall only be entitled to receive the Executive’s Accrued Benefits as of the Termination Date.

Termination Payment. (i) The “a. If during a Change of Control Period, the Executive's employment is terminated by the Executive for Good Reason or by the Company for any reason other than death, Disability, or Cause, the Termination Payment” Payment payable to the Executive by the Company or an affiliate of the Company shall be an amount equal to two and one-half (A2.5) times the Executive’s annual base salary immediately prior to the termination of the Executive’s employment plus (B) the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan 's Gross Income for the year in preceding the Termination Date. b. If the Executive's employment is terminated by the Executive within one hundred eighty (180) days of a Change of Control, which the termination has not been approved by a majority of the Executive’s employment occurs. The directors in office immediately preceding such Change of Control, the Termination Payment shall be paid payable to the Executive in cash equivalent ten (10) business days after by the date Company or an affiliate of the executive’s termination Company shall be two and one-half (2.5) times the Executive 's Gross Income for the year preceding the Termination Date. c. It is the intention of employment with the Company. Such lump sum payment shall not be reduced by any present value or similar factor, Company and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any that no portion of the Termination Payment or and any other payment "payments in the nature of compensation" (as defined in Section 280G of the Code and the regulations adopted thereunder) to or for the benefit of the Executive under this Agreement, or under any other agreement with agreement, plan or plan of the Company (in the aggregatearrangement, “Total Payments”), would constitute be deemed to be an “"excess parachute payment” " as defined in Section 280G (or any successor provision) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such . It is agreed that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% present value of the Total Payments that would be treated as “parachute payments” shall not exceed an amount equal to two and ninety-nine hundredths (2.99) times the Executive's Base Period Income, which is the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 4999 of the Code or which the Company may pay without loss of deduction under Section 280G (or any successor provision280G(a) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with the regulations issued under Section 1274(b)(2) (or any successor provision) 280G of the Code. Promptly Within sixty (60) days following a Covered delivery of the Notice of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G of the Code Code, the Executive and the Company shall, at the Company's expense, obtain such opinions as more fully described hereafter, which need not be unqualified, of legal counsel and certified public accountants or a firm of recognized executive compensation consultants. The Executive shall select said legal counsel, certified public accountants and executive compensation consultants; provided, however, that if the Company does not accept one (1) or any successor provision)more of the parties selected by the Executive, the Company shall provide the Executive with the names of such legal counsel, certified public accountants and/or executive compensation consultants as the Company may select; provided, further, however, that if the Executive does not accept the party or parties selected by the Company, the legal counsel, certified public accountants and/or executive compensation consultants selected by the Executive and the Company, at the Company’s expenserespectively, shall obtain select the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected legal counsel, certified public accountants and/or executive compensation consultants, whichever is applicable, who shall provide the opinions required by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Companythis Section 2(d), which opinion sets . The opinions required hereunder shall set forth (Aa) the amount of the Base Period IncomeIncome of the Executive, (Bb) the amount and present value of Total Payments, Payments and (Cc) the amount and present value of any excess parachute payments. In the event that such opinions determine that there would be an excess parachute payment, and (D) the amount of any Gross-Up Termination Payment or the reduction of any other payment determined by such counsel to be includable in Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includable compensation for the base period” as defined in Section 280G(d)(1) (or any successor provision) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined reduced or eliminated as specified by the Company’s independent auditors Executive in accordance with the principles of Section 280G(d)(3) and (4) (or any successor provisions) of the Code, which determination shall be evidenced in a certificate of such auditors addressed writing delivered to the Company and within thirty (30) days of his or her receipt of such opinions or, if the ExecutiveExecutive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no excess parachute payment. The opinion provisions of National Tax Counsel this Section 2(d), including the calculations, notices and opinions provided for herein shall be addressed based upon the conclusive presumption that the compensation and other benefits, including but not limited to the Company and Accrued Benefits, earned on or after the date of Change of Control by the Executive and shall be binding upon pursuant to the Company and Company's compensation programs if such payments would have been made in the Executive. If future in any event, even though the timing of such National Tax Counsel payment is triggered by the Change of Control, are reasonable compensation for services rendered prior to the Change of Control; provided, however, that in the event legal counsel so requests in connection with the opinion required by this Section 8(c)(iii2(d), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants consultants, selected by the Executive and the Company pursuant to the procedures set forth above, shall provide an opinion, upon which such legal counsel may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered prior to be received the Change of Control by the Executive solely with respect to its status under Section Executive. In the event that the provisions of Sections 280G and 4999 of the Code and the regulations thereunder. Within five are repealed without succession, this Section 2(d) shall be of no further force or effect; d. The Termination Payment shall be payable in a lump sum not later than ten (510) days after the National Tax Counsel’s opinion is received by the Company and following the Executive's Termination Date. Such lump sum payment shall not be reduced by any present value or similar factor. Further, the Company Executive shall pay (not be required to mitigate the amount of such payment by securing other employment or cause to otherwise and such payment shall not be paid) or distribute (or cause to be distributed) to or for the benefit reduced by reason of the Executive such amounts as are then due to the Executive under this Agreementsecuring other employment or for any other reason.

Termination Payment. (i) The “In recognition of past services to the Company by the Executive and in consideration for the undertaking by the Executive to provide services to the Company, pursuant to Paragraph 2 hereof, the Company shall make a lump sum payment in cash to the Executive as severance pay on the fifth day following the Date of Termination Payment” shall be an amount equal to (A) three times the Executive’s 's annual base salary (including for these purposes any amounts previously deferred under any qualified or nonqualified deferred compensation plan, program or arrangement (in effect immediately prior to the termination date that either a Change of the Executive’s employment plus (B) the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan for the year in which the termination Control shall occur or such Date of the Executive’s employment occurs. The Termination Payment shall be paid to the Executive in cash equivalent ten (10) business days after the date of the executive’s termination of employment with the Company. Such lump sum payment shall not be reduced by any present value or similar factorTermination, and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company (in the aggregate, “Total Payments”), would constitute an “excess parachute payment” as defined in Section 280G (or any successor provision) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment whichever salary is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxeshigher. Notwithstanding the foregoing, if it shall be determined that all or any portion of the payments or benefits provided under this Section 4(a), either alone or together with other payments and benefits which the Executive receives or is then entitled to a Gross-Up Payment, but that receive from the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (Company or any successor provision) of the CodeSubsidiary, would constitute a Parachute Payment, then the amounts payable payments and benefits provided to the Executive under this Agreement Section 4(a) shall be reduced (but not below zero) only to the maximum amount extent necessary to ensure that could no portion thereof shall be paid subject to the Executive without giving rise to excise tax imposed by Section 4999 of the Excise Tax (the “Safe Harbor Cap”)Code; but only if, and no Gross-Up Payment shall be made to by reason of such reduction, the Executive's Net After Tax Benefit shall exceed the Net After Tax Benefit if such reduction were not made. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement The foregoing calculations (and no other Total Paymentsany calculations required under the definition of Net After Tax Benefit) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) (or any successor provision) of the Code. Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” as defined in Section 280G of the Code (or any successor provision), the Executive and the Companymade, at the Company’s 's expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includable compensation for the base period” as defined in Section 280G(d)(1) (or any successor provision) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Section 280G(d)(3) and (4) (or any successor provisions) of the Code, which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. The opinion of National Tax Counsel shall be addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National Tax Counsel so requests in connection with no agreement on the opinion required by this Section 8(c)(iii)calculations is reached within five days of the Date of Termination, then the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants as will agree to the reasonableness selection of any item an accounting firm to make the calculations. If no agreement can be reached regarding the selection of compensation to be received by the Executive solely with respect to its status under Section 280G of the Code and the regulations thereunder. Within five (5) days after the National Tax Counsel’s opinion is received by the Company and the Executivean accounting firm, the Company shall pay (select a "big eight" accounting firm which has no current or cause to be paid) recent business relationship with the Company or distribute (with the Person or cause to be distributed) to or Group responsible for the benefit Change of the Executive Control. The determination of any such amounts as are then due to the Executive under this Agreementfirm selected will be conclusive and binding on all parties.

Termination Payment. (ia) The “If the Executive's employment is terminated as a result of death or disability, the lump sum Termination Payment” Payment payable to the Executive shall be an amount equal to the greater of Executive's Gross Income for the six (A6) months preceding the Termination Date, or the amount set forth in paragraph 6 on an annualized basis. (b) If the Executive’s annual base salary immediately prior 's employment is terminated by the Executive for Good Reason or by the Company for any reason other than death, disability or Cause, the Termination Payment payable to the termination Executive by the Company or an affiliate of the Company shall be equal to the greater of Executive’s employment plus (B) the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan 's Gross Income for the year preceding the Termination Date, or the amount set forth in which the termination paragraph 6 on an annualized basis. (c) If, during a Change of Control Period, the Executive’s 's employment occurs. The is terminated by the Executive for Good Reason or by the Company for any reason other than death, Disability, or Cause, the Termination Payment shall be paid payable to the Executive in cash equivalent ten (10) business days after by the date Company or an affiliate of the executive’s termination Company shall be equal to the greater of employment with Executive's Gross Income for the Company. Such lump sum payment shall not be reduced by any present value year preceding the Termination Date, or similar factor, the amount set forth in paragraph 6 on an annualized basis. (d) It is the intention of the Company and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any that no portion of the Termination Payment or and any other payment under this Agreement, or under any other agreement with or plan of the Company ("payments in the aggregate, “Total Payments”), would constitute an “excess parachute payment” nature of compensation" (as defined in Section 280G (or any successor provision) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges the regulations adopted thereunder) to or penalties in respect of for the imposition of such excise tax (collectivelyarrangement, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation be an "excess parachute payment" as defined in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality Section 280G of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment Code. It is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined agreed that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% present value of the Total Payments that would be treated as “parachute payments” shall not exceed an amount equal to the greater of Executive's Gross Income for the year preceding the Termination Date, or the amount set forth in paragraph 6 on an annualized basis without becoming subject to the tax imposed by Section 4999 of the Code or which the Company may pay without loss of deduction under Section 280G (or any successor provision280G(a) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with the regulations issued under Section 1274(b)(2) (or any successor provision) 280G of the Code. Promptly Within sixty (60) days following a Covered delivery of the Notice of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G of the Code Code, the Executive and the Company shall, at the Company's expense, obtain such opinions as more fully described hereafter, which need not be unqualified, of legal counsel and certified public accountants or a firm of recognized executive compensation consultants. The Executive shall select said legal counsel, certified public accountants and executive compensation consultants; provided, however, that if the Company does not accept one (1) or any successor provision)more of the parties selected by the Executive, the Company shall provide the Executive with the names of such legal counsel, certified public accountants and/or executive compensation consultants as the Company may select; provided, further, however, that if the Executive does not accept the party or parties selected by the Company, the legal counsel, certified public accountants and/or executive compensation consultants selected by the Executive and the Company, at the Company’s expenserespectively, shall obtain select the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected legal counsel, certified public accountants and/or executive compensation consultants, whichever is applicable, who shall provide the opinions required by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Companythis Section 13(d), which opinion sets . The opinions required hereunder shall set forth (Aa) the amount of the Base Period IncomeIncome of the Executive, (Bb) the amount and present value of Total Payments, Payments and (Cc) the amount and present value of any excess parachute payments. In the event that such opinions determine that there would be an excess parachute payment, and (D) the amount of any Gross-Up Termination Payment or the reduction of any other payment determined by such counsel to be includable in Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includable compensation for the base period” as defined in Section 280G(d)(1) (or any successor provision) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined reduced or eliminated as specified by the Company’s independent auditors Executive in accordance with the principles of Section 280G(d)(3) and (4) (or any successor provisions) of the Code, which determination shall be evidenced in a certificate of such auditors addressed writing delivered to the Company and within thirty (30) days of his or her receipt of such opinions or, if the ExecutiveExecutive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no excess parachute payment. The opinion provisions of National Tax Counsel shall be addressed this Section 13(d), including the presumption that the compensation and other benefits, including but no limited to the Company and Accrued Benefits, earned on or after the date of Change of Control by the Executive and shall be binding upon pursuant to the Company and Company's compensation programs if such payments would have been made in the Executive. If future in any event, even though the timing of such National Tax Counsel payment is triggered by the Change of Control, are reasonable compensation for services rendered prior to the Change of Control; provided, however, that in the event legal counsel so requests in connection with the opinion required by this Section 8(c)(iii13 (d), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants consultants, selected by the Executive and the Company pursuant to the procedures set forth above, shall provide an opinion, upon which such legal counsel may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered prior to be received the Change of Control by the Executive solely with respect to its status under Section Executive. In the event that the provisions of Sections 280G and 4999 of the Code and the regulations thereunder. Within five are repealed without succession, this Section 13(d) shall be of not further force or effect. (5e) The Termination Payment shall be payable in a lump sum not later than twenty (20) days after following the National Tax Counsel’s opinion Executive's Termination Date. Such lump sum payment shall not be reduced by any present value or similar factor. Further, the Executive shall not be required to mitigate the amount of such payment by securing other employment or otherwise and such payment shall not be reduced by reason of the Executive securing other employment or for any other reason. (f) Notwithstanding anything to the contrary herein, in no event will a termination of Executive's employment with the Company be deemed to trigger a right to receive a Termination Payment if the termination is received effected by the mutual agreement of the Company and the ExecutiveExecutive to accommodate a reassignment of Executive to an entity created or acquired by the Company, or to which the Company has contributed rights to technology, assets or business plans. In the event of any such termination, the Company Executive shall pay (or cause only be entitled to be paid) or distribute (or cause to be distributed) to or for receive the benefit Executive's Accrued Benefits as of the Executive such amounts as are then due to the Executive under this AgreementTermination Date.

Termination Payment. (i) The “Subject to the limits set forth in Section 8(a)(ii), for purposes of this Agreement, the "Termination Payment” " shall be an amount equal to (A) the Executive’s annual base salary immediately prior to Annual Cash Compensation multiplied by the termination number of years or fractional portion thereof remaining in the Employment Period determined as of the Executive’s employment plus (B) Termination Date, except that the Executive’s target annual bonus under Termination Payment shall not be less than the Company’s Senior Management Bonus Plan for the year in which the termination amount of the Executive’s employment occursAnnual Cash Compensation. The Termination Payment shall be paid to the Executive in cash equivalent not later than ten (10) business days after the date of the executive’s termination of employment with the CompanyTermination Date. Such lump sum payment shall not be reduced by any present value or similar factor, and the The Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company or the Employer (in the aggregate, “aggregate "Total Payments”"), would constitute an “"excess parachute payment” as defined in ," then the Total Payments to be made to the Executive shall be reduced such that the value of the aggregate Total Payments that the Executive is entitled to receive shall be One Dollar ($1) less than the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 280G 4999 of the Code (or any successor provision) or which the Company may pay without loss of deduction under Section 280G(a) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “"excess parachute payment” " and “"parachute payments” " shall have the meanings assigned to them in Section 280G of the Code (or any successor provision) of the Code ), and such “"parachute payments” " shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) of the Code (or any successor provision) ). Within sixty days following delivery of the Code. Promptly following a Covered Notice of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company’s 's expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s 's independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to in the Company)Executive's sole discretion, which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, Payments and (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments payments without regard to the Safe Harbor Cap, as the case may belimitations of this Section 8(a)(ii). As used in this AgreementSection 8(a)(ii), the term “"Base Period Income” " means an amount equal to the Executive’s “'s "annualized includable compensation for the base period” " as defined in Section 280G(d)(1) of the Code (or any successor provision) of the Code). For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s 's independent auditors in accordance with the principles of Section Sections 280G(d)(3) and (4) of the Code (or any successor provisions) of the Code), which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. The Such opinion of National Tax Counsel shall be dated as of the Termination Date and addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National Tax Counsel opinion determines that there would be an excess parachute payment, then the Termination Payment hereunder or any other payment determined by such counsel to be includable in Total Payments shall be reduced or eliminated as specified by the Executive in writing delivered to the Company within thirty days of the Executive's receipt of such opinion or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculations set forth in such opinion there will be no excess parachute payment. If such counsel so requests in connection with the opinion required by this Section 8(c)(iii)Section, the Executive and the Company shall obtain, at the Company’s 's expense, and the National Tax Counsel counsel may rely onon in providing the opinion, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive. Notwithstanding the foregoing, the provisions of this Section 8(a)(ii), including the calculations, notices and opinions provided for herein, shall be based upon the conclusive presumption that the following are reasonable: (1) the compensation and benefits provided for in Section 5 and (2) any other compensation, including but not limited to the Accrued Benefits, earned prior to the Termination Date by the Executive solely with respect pursuant to its status under Section the Company's compensation programs if such payments would have been made in the future in any event, even though the timing of such payment is triggered by the Change in Control or the Termination Date. If the provisions of Sections 280G and 4999 of the Code and the regulations thereunder. Within five (5) days after the National Tax Counsel’s opinion is received by the Company and the Executive, the Company shall pay (or cause to any successor provisions) are repealed without succession, then this Section 8(a)(ii) shall be paid) of no further force or distribute (or cause to be distributed) to or for the benefit of the Executive such amounts as are then due to the Executive under this Agreementeffect.

Termination Payment. (ia) The “If the Executive's employment is terminated as a result of death or Disability, the Executive shall receive a Termination Payment” shall be an amount Payment equal to one (A1.0) times the Executive’s annual base salary immediately 's Gross Income. The Company will also pay the full medical, dental and vision premiums for continuation coverage under COBRA for the Executive and dependents who qualify for continuation coverage under COBRA for one year following Termination Date. (b) If, prior to the termination a Change of Control Period, the Executive’s 's employment plus (B) is terminated by the Executive’s target annual bonus under Executive for Good Reason or by the Company’s Senior Management Bonus Plan Company for any reason other than death, Disability or Cause, the year in which the termination of the Executive’s employment occurs. The Termination Payment shall be paid payable to the Executive in cash equivalent ten (10) business days after by the date Company or an affiliate of the executive’s termination Company shall be equal to one (1.0) times the Executive's Gross Income. The Company will pay the full medical, dental and vision premiums for continuation coverage under COBRA for the Executive and dependents who qualify for continuation coverage under COBRA for one year following the Termination Date. (c) If, during a Change of Control Period, the Executive's employment with is terminated by the CompanyExecutive for Good Reason During a Change of Control or by the Company for any reason other than death, Disability, or Cause, the Termination Payment payable to the Executive by the Company or an affiliate of the Company shall be one (1.0) times the Executive's Gross Income. Such lump sum payment shall not be reduced by any present value or similar factorThe Company will pay the full medical, dental and vision premiums for continuation coverage under COBRA for the Executive and dependents who qualify for continuation coverage under COBRA for one (1) year following the Termination Date. (d) It is the intention of the Company and the Executive shall not be required to mitigate that the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment benefits under this Agreement shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any capped such that no portion of the Termination Payment or and any other payment "payments in the nature of compensation" (as defined in Section 280G of the Code and the regulations adopted thereunder) to or for the benefit of the Executive under this Agreement, or under any other agreement with agreement, plan or plan of the Company (in the aggregatearrangement, “Total Payments”), would constitute shall be deemed to be an “"excess parachute payment” " as defined in Section 280G (or any successor provision) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such . It is agreed that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% present value of the Total Payments that would be treated as “parachute payments” shall not exceed an amount equal to two and ninety-nine hundredths (2.99) times the Executive's Base Period Income, which is the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 4999 of the Code or which the Company may pay without loss of deduction under Section 280G (or any successor provision280G(a) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with the regulations issued under Section 1274(b)(2) (or any successor provision) 280G of the Code. Promptly Within sixty (60) days following a Covered delivery of the Notice of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G of the Code Code, the Executive and the Company shall, at the Company's expense, obtain such opinions as more fully described hereafter, which need not be unqualified, of legal counsel and certified public accountants or a firm of recognized executive compensation consultants. The Executive shall select said legal counsel, certified public accountants and executive compensation consultants; provided, however, that if the Company does not accept one (1) or any successor provision)more of the parties selected by the Executive, the Company shall provide the Executive with the names of such legal counsel, certified public accountants and/or executive compensation consultants as the Company may select; provided, further, however, that if the Executive does not accept the party or parties selected by the Company, the legal counsel, certified public accountants and/or executive compensation consultants selected by the Executive and the Company, at the Company’s expenserespectively, shall obtain select the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected legal counsel, certified public accountants and/or executive compensation consultants, whichever is applicable, who shall provide the opinions required by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Companythis Section 13(d), which opinion sets . The opinions required hereunder shall set forth (Aa) the amount of the Base Period IncomeIncome of the Executive, (Bb) the amount and present value of Total Payments, Payments and (Cc) the amount and present value of any excess parachute payments. In the event that such opinions determine that there would be an excess parachute payment, and (D) the amount of any Gross-Up Termination Payment or the reduction of any other payment determined by such counsel to be includable in Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includable compensation for the base period” as defined in Section 280G(d)(1) (or any successor provision) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined reduced or eliminated as specified by the Company’s independent auditors Executive in accordance with the principles of Section 280G(d)(3) and (4) (or any successor provisions) of the Code, which determination shall be evidenced in a certificate of such auditors addressed writing delivered to the Company and within thirty (30) days of his or her receipt of such opinions or, if the ExecutiveExecutive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no excess parachute payment. The opinion provisions of National Tax Counsel this Section 13(d), including the calculations, notices and opinions provided for herein shall be addressed based upon the conclusive presumption that the compensation and other benefits, including but not limited to the Company and Gross Income, earned on or after the date of a Change of Control by the Executive and shall be binding upon pursuant to the Company and Company's compensation programs if such payments would have been made in the Executive. If future in any event, even though the timing of such National Tax Counsel payment is triggered by the Change of Control, are reasonable compensation for services rendered prior to the Change of Control; provided, however, that in the event legal counsel so requests in connection with the opinion required by this Section 8(c)(iii13(d), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants consultants, selected by the Executive and the Company pursuant to the procedures set forth above, shall provide an opinion, upon which such legal counsel may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered prior to be received the Change of Control by the Executive solely with respect to its status under Section Executive. In the event that the provisions of Sections 280G and 4999 of the Code and are repealed without succession, this Section 13(d) shall be of no further force or effect. (e) The Termination Payment shall be payable as follows: (i) In the regulations thereunder. Within five event the Executive's Termination Date is during a Change of Control Period, any Termination Payment shall be paid to the Executive in a lump sum not later than ten (510) days following the Executive's Termination Date. Such lump sum payment shall not be reduced by any present value, interest rate, or similar factor. Further, the Executive shall not be required to mitigate the amount of such payment by securing other employment or otherwise and such payment shall not be reduced by reason of the Executive securing other employment or for any other reason. (ii) In the event the Executive's Termination Date is prior to or after a Change of Control Period, any Termination Payment shall be paid to the National Tax Counsel’s opinion Executive in equal installments on the Company's twenty-six (26) regular bi-weekly paydays over the twelve-month period following the Termination Date. Such payments shall not be reduced or increased by any present value, interest rate, or similar factor. Further, the Executive shall not be required to mitigate the amount of such payment by securing other employment or otherwise and such payment shall not be reduced by reason of the Executive securing other employment or for any other reason. (f) Notwithstanding anything to the contrary herein, in no event will a termination of Executive's employment with the Company be deemed to trigger a right to receive a Termination Payment if the termination is received effected by the mutual agreement of the Company and Executive to accommodate a reassignment of Executive to an entity created or acquired by the Company, or to which the Company has contributed rights to technology, assets or business plans, if at the time of such termination the Company owns or is acquiring a minimum of a 19% equity interest in such entity. In the event of any such termination, the Executive shall only be entitled to receive the Executive, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit 's Accrued Benefits as of the Executive such amounts as are then due to the Executive under this AgreementTermination Date.

Termination Payment. (i) The Subject to the limits set forth in Section 8(a)(ii), for purposes of this Agreement, the “Termination Payment” shall be an amount equal to ([A) :] the Executive’s annual base salary immediately prior to Annual Cash Compensation multiplied by the termination number of years or fractional portion thereof remaining in the Employment Period determined as of the Executive’s employment plus (Termination Date, except that the Termination Payment shall not be less than the amount of Annual Cash Compensation [B) :] the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan for the year in which the termination of the Executive’s employment occursAnnual Cash Compensation. The Termination Payment shall be paid to the Executive in cash equivalent ten (10) on the thirtieth business days day after the date Termination Date; provided that if the Executive is a “specified employee” within the meaning of Code Section 409A at the time of his Covered Termination, the Termination Payment shall be paid to the Executive on the first day of the executive’s termination of employment with seventh (7th) month following the Company. Such lump sum payment shall not be reduced by any present value or similar factormonth in which the Termination Date occurs, and in such event, the Termination Payment shall be accompanied by a payment of interest calculated at the rate of interest announced by the Federal Reserve Board (or any successor thereto) from time to time as the “federal funds rate”, such rate to be determined on the Termination Date, compounded quarterly. The Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by addition to any other severance payments to which the Executive of is entitled under the Termination Payment shall constitute Company’s severance policies and practices in the Executive’s release of any rights of form most favorable to the Executive to, that were in effect at any other cash severance payments under any Company severance policy, practice or agreementtime during the 180-day period prior to the Effective Date. (ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company or the Employer (in the aggregate, aggregate “Total Payments”), would constitute an “excess parachute payment,” as defined in then the Total Payments to be made to the Executive shall be reduced such that the value of the aggregate Total Payments that the Executive is entitled to receive shall be One Dollar ($1) less than the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 280G 4999 of the Code (or any successor provision) or which the Company may pay without loss of deduction under Section 280G(a) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of ); provided that the Code and any interest charges or penalties foregoing reduction in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of Total Payments shall not apply if the GrossAfter-Up Payment, Tax Value to the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of prior to reduction in accordance herewith is greater than the Code, then the amounts payable After-Tax Value to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the if Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reducedare reduced in accordance herewith. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G of the Code (or any successor provision) of the Code ), and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) of the Code (or any successor provision) ). Within ten business days following delivery of the Code. Promptly following a Covered Notice of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which that will result in an “excess parachute payment” payment as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to in the Company)Executive’s sole discretion, which opinion sets forth forth: (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute paymentspayments without regard to the limitations of this Section 8(a)(ii), and (D) the amount After-Tax Value of any Gross-Up Payment or the Total Payments if the reduction of any in Total Payments to contemplated under this Section 8(a)(ii) did not apply, and (E) the Safe Harbor Cap, as After-Tax Value of the case may beTotal Payments taking into account the reduction in Total Payments contemplated under this Section 8(a)(ii). As used in this AgreementSection 8(a)(ii), the term “Base Period Income” means an amount equal to the Executive’s “annualized includable includible compensation for the base period” as defined in Section 280G(d)(1) of the Code (or any successor provision) of the Code). For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Section Sections 280G(d)(3) and (4) of the Code (or any successor provisions) of the Code), which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. The opinion For purposes of National determining the After-Tax Counsel Value of Total Payments, the Executive shall be deemed to pay federal income taxes and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Termination Payment is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Termination Payment is to be made, net of the maximum reduction in federal income taxes that may be obtained from deduction of such state and local taxes. Such opinion shall be dated as of the Termination Date and addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National opinion determines that there would be an excess parachute payment and that the After-Tax Counsel Value of the Total Payments taking into account the reduction contemplated under this Section is greater than the After-Tax Value of the Total Payments if the reduction in Total Payments contemplated under this Section did not apply, then the Termination Payment hereunder or any other payment determined by such counsel to be includible in Total Payments shall be reduced or eliminated as specified by the Executive in writing delivered to the Company within ten business days of the Executive’s receipt of such opinion or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculations set forth in such opinion there will be no excess parachute payment. If such legal counsel so requests in connection with the opinion required by this Section 8(c)(iii)Section, the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel legal counsel may rely onon in providing the opinion, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive. Notwithstanding the foregoing, the provisions of this Section 8(a)(ii), including the calculations, notices and opinions provided for herein, shall be based upon the conclusive presumption that the following are reasonable: (1) the compensation and benefits provided for in Section 5 and (2) any other compensation, including but not limited to the Accrued Benefits, earned prior to the Termination Date by the Executive solely with respect pursuant to its status under Section the Company’s compensation programs if such payments would have been made in the future in any event, even though the timing of such payment is triggered by the Change in Control or the Termination Date. If the provisions of Sections 280G and 4999 of the Code and the regulations thereunder. Within five (5) days after the National Tax Counsel’s opinion is received by the Company and the Executive, the Company shall pay (or cause to any successor provisions) are repealed without succession, then this Section 8(a)(ii) shall be paid) of no further force or distribute (or cause to be distributed) to or for the benefit of the Executive such amounts as are then due to the Executive under this Agreementeffect.

Termination Payment. (ia) The “If the Executive's employment is terminated as a result of death or disability, the lump sum Termination Payment” Payment payable to the Executive shall be an amount equal to (A) the Executive’s annual base salary immediately prior to the termination of the Executive’s employment plus (B) the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan 's Gross Income for the year in which preceding the termination of Termination Date. (b) If the Executive’s 's employment occurs. The is terminated by the Executive for Good Reason or by the Company for any reason other than death, disability or Cause, the Termination Payment shall be paid payable to the Executive in cash equivalent ten (10) business days after by the date Company or an affiliate of the executive’s termination Company shall be two (2.0) times the Executive's Gross Income for the year preceding the Termination Date. (c) If, during a Change of Control Period, the Executive's employment with is terminated by the Company. Such lump sum payment Executive for Good Reason or by the Company for any reason other than death, Disability, or Cause, the Termination Payment payable to the Executive by the Company or an affiliate of the Company shall not be reduced two (2.0) times the Executive's Gross Income for the year preceding the Termination Date. (d) If the Executive's employment is terminated by any present value the Executive within one hundred eighty (180) days of a Change of Control, the Termination Payment payable to the Executive by the Company or similar factor, an affiliate of the Company shall be two and one-half (2.5) times the Executive's Gross Income for the year preceding the Termination Date. (e) It is the intention of the Company and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any that no portion of the Termination Payment or and any other payment "payments in the nature of compensation" (as defined in Section 280G of the Code and the regulations adopted thereunder) to or for the benefit of the Executive under this Agreement, or under any other agreement with agreement, plan or plan of the Company (in the aggregatearrangement, “Total Payments”), would constitute be deemed to be an “"excess parachute payment” " as defined in Section 280G (or any successor provision) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such . It is agreed that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% present value of the Total Payments that would be treated as “parachute payments” shall not exceed an amount equal to two and ninety-nine hundredths (2.99) times the Executive's Base Period Income, which is the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 4999 of the Code or which the Company may pay without loss of deduction under Section 280G (or any successor provision280G(a) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with the regulations issued under Section 1274(b)(2) (or any successor provision) 280G of the Code. Promptly Within sixty (60) days following a Covered delivery of the Notice of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G of the Code Code, the Executive and the Company shall, at the Company's expense, obtain such opinions as more fully described hereafter, which need not be unqualified, of legal counsel and certified public accountants or a firm of recognized executive compensation consultants. The Executive shall select said legal counsel, certified public accountants and executive compensation consultants; provided, however, that if the Company does not accept one (1) or any successor provision)more of the parties selected by the Executive, the Company shall provide the Executive with the names of such legal counsel, certified public accountants and/or executive compensation consultants as the Company may select; provided, further, however, that if the Executive does not accept the party or parties selected by the Company, the legal counsel, certified public accountants and/or executive compensation consultants selected by the Executive and the Company, at the Company’s expenserespectively, shall obtain select the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected legal counsel, certified public accountants and/or executive compensation consultants, whichever is applicable, who shall provide the opinions required by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Companythis Section 13(e), which opinion sets . The opinions required hereunder shall set forth (Aa) the amount of the Base Period IncomeIncome of the Executive, (Bb) the amount and present value of Total Payments, Payments and (Cc) the amount and present value of any excess parachute payments. In the event that such opinions determine that there would be an excess parachute payment, and (D) the amount of any Gross-Up Termination Payment or the reduction of any other payment determined by such counsel to be includable in Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includable compensation for the base period” as defined in Section 280G(d)(1) (or any successor provision) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined reduced or eliminated as specified by the Company’s independent auditors Executive in accordance with the principles of Section 280G(d)(3) and (4) (or any successor provisions) of the Code, which determination shall be evidenced in a certificate of such auditors addressed writing delivered to the Company and within thirty (30) days of his or her receipt of such opinions or, if the ExecutiveExecutive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no excess parachute payment. The opinion provisions of National Tax Counsel this Section 13(e), including the calculations, notices and opinions provided for herein shall be addressed based upon the conclusive presumption that the compensation and other benefits, including but not limited to the Company and Accrued Benefits, earned on or after the date of Change of Control by the Executive and shall be binding upon pursuant to the Company and Company's compensation programs if such payments would have been made in the Executive. If future in any event, even though the timing of such National Tax Counsel payment is triggered by the Change of Control, are reasonable compensation for services rendered prior to the Change of Control; provided, however, that in the event legal counsel so requests in connection with the opinion required by this Section 8(c)(iii13(e), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants consultants, selected by the Executive and the Company pursuant to the procedures set forth above, shall provide an opinion, upon which such legal counsel may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered prior to be received the Change of Control by the Executive solely with respect to its status under Section Executive. In the event that the provisions of Sections 280G and 4999 of the Code and the regulations thereunder. Within five are repealed without succession, this Section 13(e) shall be of no further force or effect. (5f) The Termination Payment shall be payable in a lump sum not later than ten (10) days after the National Tax Counsel’s opinion is received by the Company and following the Executive's Termination Date. Such lump sum payment shall not be reduced by any present value or similar factor. Further, the Company Executive shall pay (not be required to mitigate the amount of such payment by securing other employment or cause to otherwise and such payment shall not be paid) or distribute (or cause to be distributed) to or for the benefit reduced by reason of the Executive such amounts as are then due to the Executive under this Agreementsecuring other employment or for any other reason.

Termination Payment. (i) The “Subject to the limits set forth in Section 8(a)(ii), for purposes of this Agreement, the "Termination Payment” " shall be an amount equal to (A) the Executive’s annual base salary immediately prior to Annual Cash Compensation multiplied by the termination number of years or fractional portion thereof remaining in the Employment Period determined as of the Executive’s employment plus (B) Termination Date, except that the Executive’s target annual bonus under Termination Payment shall not be less than the Company’s Senior Management Bonus Plan for the year in which the termination amount of the Executive’s employment occursAnnual Cash Compensation. The Termination Payment shall be paid to the Executive in cash equivalent not later than ten (10) business days after the date of the executive’s termination of employment with the CompanyTermination Date. Such lump sum payment shall not be reduced by any present value or similar factor, and the The Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company or the Employer (in the aggregate, “aggregate "Total Payments”"), would constitute an “"excess parachute payment” as defined in ," then the Total Payments to be made to the Executive shall be reduced such that the value of the aggregate Total Payments that the Executive is entitled to receive shall be One Dollar ($1) less than the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 280G 4999 of the Code (or any successor provision) or which the Company may pay without loss of deduction under Section 280G(a) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “"excess parachute payment” " and “"parachute payments” " shall have the meanings assigned to them in Section 280G of the Code (or any successor provision) of the Code ), and such “"parachute payments” " shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) of the Code (or any successor provision) ). Within sixty days following delivery of the Code. Promptly following a Covered Notice of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company’s 's expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s 's independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includable compensation for the base period” as defined in Section 280G(d)(1) (or any successor provision) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Section 280G(d)(3) and (4) (or any successor provisions) of the Code, which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. The opinion of National Tax Counsel shall be addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National Tax Counsel so requests in connection with the opinion required by this Section 8(c)(iii), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive solely with respect to its status under Section 280G of the Code and the regulations thereunder. Within five (5) days after the National Tax Counsel’s opinion is received by the Company and the Executive, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of the Executive such amounts as are then due to the Executive under this Agreement.'s sole

Termination Payment. (i) The “a. If during a Change of Control Period, the Executive's employment is terminated by the Executive for Good Reason or by the Company for any reason other than death, Disability, or Cause, the Termination Payment” Payment payable to the Executive by the Company or an affiliate of the Company shall be an amount equal to two and one-half (A2.5) times the Executive’s annual base salary immediately prior to the termination of the Executive’s employment plus (B) the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan 's Gross Income for the year in which preceding the termination Termination Date. b. It is the intention of the Executive’s employment occurs. The Termination Payment shall be paid to the Executive in cash equivalent ten (10) business days after the date of the executive’s termination of employment with the Company. Such lump sum payment shall not be reduced by any present value or similar factor, Company and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any that no portion of the Termination Payment or and any other payment "payments in the nature of compensation" (as defined in Section 280G of the Code and the regulations adopted thereunder) to or for the benefit of the Executive under this Agreement, or under any other agreement with agreement, plan or plan of the Company (in the aggregatearrangement, “Total Payments”), would constitute be deemed to be an “"excess parachute payment” " as defined in Section 280G (or any successor provision) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such . It is agreed that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% present value of the Total Payments that would be treated as “parachute payments” shall not exceed an amount equal to two and ninety-nine hundredths (2.99) times the Executive's Base Period Income, which is the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 4999 of the Code or which the Company may pay without loss of deduction under Section 280G (or any successor provision280G(a) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with the regulations issued under Section 1274(b)(2) (or any successor provision) 280G of the Code. Promptly Within sixty (60) days following a Covered delivery of the Notice of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G of the Code Code, the Executive and the Company shall, at the Company's expense, obtain such opinions as more fully described hereafter, which need not be unqualified, of legal counsel and certified public accountants or a firm of recognized executive compensation consultants. The Executive shall select said legal counsel, certified public accountants and executive compensation consultants; provided, however, that if the Company does not accept one (1) or any successor provision)more of the parties selected by the Executive, the Company shall provide the Executive with the names of such legal counsel, certified public accountants and/or executive compensation consultants as the Company may select; provided, further, however, that if the Executive does not accept the party or parties selected by the Company, the legal counsel, certified public accountants and/or executive compensation consultants selected by the Executive and the Company, at the Company’s expenserespectively, shall obtain select the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected legal counsel, certified public accountants and/or executive compensation consultants, whichever is applicable, who shall provide the opinions required by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Companythis Section 2(d), which opinion sets . The opinions required hereunder shall set forth (Aa) the amount of the Base Period IncomeIncome of the Executive, (Bb) the amount and present value of Total Payments, Payments and (Cc) the amount and present value of any excess parachute payments. In the event that such opinions determine that there would be an excess parachute payment, and (D) the amount of any Gross-Up Termination Payment or the reduction of any other payment determined by such counsel to be includable in Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includable compensation for the base period” as defined in Section 280G(d)(1) (or any successor provision) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined reduced or eliminated as specified by the Company’s independent auditors Executive in accordance with the principles of Section 280G(d)(3) and (4) (or any successor provisions) of the Code, which determination shall be evidenced in a certificate of such auditors addressed writing delivered to the Company and within thirty (30) days of his or her receipt of such opinions or, if the ExecutiveExecutive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no excess parachute payment. The opinion provisions of National Tax Counsel this Section 2(d), including the calculations, notices and opinions provided for herein shall be addressed based upon the conclusive presumption that the compensation and other benefits, including but not limited to the Company and Accrued Benefits, earned on or after the date of Change of Control by the Executive and shall be binding upon pursuant to the Company and Company's compensation programs if such payments would have been made in the Executive. If future in any event, even though the timing of such National Tax Counsel payment is triggered by the Change of Control, are reasonable compensation for services rendered prior to the Change of Control; provided, however, that in the event legal counsel so requests in connection with the opinion required by this Section 8(c)(iii2(d), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants consultants, selected by the Executive and the Company pursuant to the procedures set forth above, shall provide an opinion, upon which such legal counsel may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered prior to be received the Change of Control by the Executive solely with respect to its status under Section Executive. In the event that the provisions of Sections 280G and 4999 of the Code and the regulations thereunder. Within five are repealed without succession, this Section 2(d) shall be of no further force or effect; c. The Termination Payment shall be payable in a lump sum not later than ten (510) days after the National Tax Counsel’s opinion is received by the Company and following the Executive's Termination Date. Such lump sum payment shall not be reduced by any present value or similar factor. Further, the Company Executive shall pay (not be required to mitigate the amount of such payment by securing other employment or cause to otherwise and such payment shall not be paid) or distribute (or cause to be distributed) to or for the benefit reduced by reason of the Executive such amounts as are then due to the Executive under this Agreementsecuring other employment or for any other reason.

Termination Payment. (i) The “For purposes of this Agreement, the "Termination Payment” " shall be an amount equal to (A) the Executive’s annual base salary immediately prior to Annual Cash Compensation multiplied by the termination number of years or fractional portion thereof remaining in the Employment Period determined as of the Executive’s employment plus (B) Termination Date, except that the Executive’s target annual bonus under Termination Payment shall not be less than the Company’s Senior Management Bonus Plan for the year in which the termination amount of the Executive’s employment occursAnnual Cash Compensation. The Termination Payment shall be paid to the Executive in cash equivalent not later than ten (10) business days after the date of the executive’s termination of employment with the CompanyTermination Date. Such lump sum payment shall not be reduced by any present value or similar factor, and the The Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by of any other severance payments to which the Executive is entitled under the severance policies and practices of the Termination Payment shall constitute the Executive’s release of Company and/or any rights subsidiary of the Executive to, any other cash severance payments under any Company severance policy, practice or agreementCompany. (ii) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement, or under any other agreement with or plan of the Company or the Employer, including, without limitation, the Oshkosh Truck Corporation 1990 Incentive Stock Plan (the "Incentive Stock Plan") or any stock option agreement (the "Stock Option Agreements") between the Company and the Executive entered into pursuant to the Incentive Stock Plan (in the aggregate, “aggregate "Total Payments”"), would constitute an “"excess parachute payment” as defined in Section 280G (or any successor provision) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), ," then the Company shall pay the Executive an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive after deduction of any excise tax imposed under by Section 4999 of the Code (or any successor provision) of the Code ), and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and or local income tax, or employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), 8(a)(ii) shall be equal to the Total Payments. Any provisions of the Incentive Stock Plan or the Stock Option Agreements that provide for a reduction in payments to the Executive relating to acceleration of vesting of stock options upon a "Change of Control" (as such term is defined in the Incentive Stock Plan) if such payments would result in the payment by the Executive of any excise tax provided for in Section 280G and Section 4999 of the Code are null and void and of no further force and effect as they apply to the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s 's domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% of the Total Payments that would be treated as “parachute payments” under Section 280G (or any successor provision) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “"excess parachute payment” " and “"parachute payments” " shall have the meanings assigned to them in Section 280G of the Code (or any successor provision) of the Code ), and such “"parachute payments” " shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) of the Code (or any successor provision) of the Code). Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which that will result in an “excess parachute payment” payment as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company’s 's expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“the "National Tax Counsel”") selected by the Company’s 's independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to in the Company)Executive's sole discretion, which opinion sets forth (A) the amount of the Base Period Income, (B) the amount and present value of Total Payments, (C) the amount and present value of any excess parachute payments, payments and (D) the amount of any Gross-Up Payment or the reduction of any Total Payments to the Safe Harbor Cap, as the case may bePayment. As used in this AgreementSection 8(a)(iii), the term “"Base Period Income” " means an amount equal to the Executive’s “'s "annualized includable includible compensation for the base period” " as defined in Section 280G(d)(1) of the Code (or any successor provision) of the Code). For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s 's independent auditors in accordance with the principles of Section Sections 280G(d)(3) and (4) of the Code (or any successor provisions) of the Code), which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. The opinion of the National Tax Counsel shall be dated as of the Termination Date and addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such the National Tax Counsel so requests in connection with the opinion required by this Section 8(c)(iii), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive solely with respect to its status under Section 280G of the Code and the regulations thereunder. Within five (5) days after the National Tax Counsel’s opinion is received by the Company and the Executive, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of the Executive such amounts as are then due to the Executive under this Agreement.this

Termination Payment. (ia) The “Termination Payment” shall be an amount equal to (A) the Executive’s annual base salary immediately prior to the termination of If the Executive’s employment plus is terminated as a result of death or Disability, the Executive shall receive a Termination Payment equal to one (B1.0) times the Executive’s target annual bonus Gross Income. The Company will also pay the full medical, dental, and vision premiums for continuation coverage under the Company’s Senior Management Bonus Plan COBRA for the Executive and dependents who qualify for continuation coverage under COBRA for one year in which following the termination Termination Date. (b) If, prior to a Change of Control Period, the Executive’s employment occurs. The is terminated by the Executive for Good Reason or by the Company other than by reason of death, Disability or Cause, the Termination Payment shall be paid payable to the Executive in cash equivalent ten (10) business days after by the date Company or an affiliate of the executiveCompany shall be one (1.0) times the Executive’s termination Gross Income. The Company will pay the full medical, dental, and vision premiums for continuation coverage under COBRA for the Executive and dependents who qualify for continuation coverage under COBRA for one year following the Termination Date. (c) If, during a Change of Control Period, the Executive’s employment with is terminated by the CompanyExecutive for Good Reason During a Change of Control or by the Company for any reason other than death, Disability, or Cause, the Termination Payment payable to the Executive by the Company or an affiliate of the Company shall be one (1.0) times the Executive’s Gross Income. Such lump sum payment shall not be reduced by any present value or similar factorThe Company will pay the full medical, dental and vision premiums for continuation coverage under COBRA for the Executive and dependents who qualify for continuation coverage under COBRA for one (1) year following the Termination Date. (d) It is the intention of the Company and the Executive shall not be required to mitigate that the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment benefits under this Agreement shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any capped such that no portion of the Termination Payment or and any other payment “payments in the nature of compensation” (as defined in Section 280G of the Code and the regulations adopted thereunder) to or for the benefit of the Executive under this Agreement, or under any other agreement with agreement, plan or plan of the Company (in the aggregatearrangement, “Total Payments”), would constitute shall be deemed to be an “excess parachute payment” as defined in Section 280G (or any successor provision) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such . It is agreed that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% present value of the Total Payments that would be treated as “parachute payments” shall not exceed an amount equal to two and ninety-nine hundredths (2.99) times the Executive’s Base Period Income, which is the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 4999 of the Code or which the Company may pay without loss of deduction under Section 280G (or any successor provision280G(a) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with the regulations issued under Section 1274(b)(2) (or any successor provision) 280G of the Code. Promptly Within sixty (60) days following a Covered delivery of the Notice of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G of the Code (or any successor provision)Code, the Executive and the CompanyCompany shall, at the Company’s expense, shall obtain the opinion (such opinions as more fully described hereafter, which need not be unqualified, of legal counsel and certified public accountants or a firm of recognized executive compensation consultants. The Executive shall select said legal counsel, certified public accountants and executive compensation consultants; provided, however, that if the Company does not accept one (1) or more of nationally recognized tax counsel (“National Tax Counsel”) the parties selected by the Executive, the Company shall provide the Executive with the names of such legal counsel, certified public accountants and/or executive compensation consultants as the Company may select; provided, further, however, that if the Executive does not accept the party or parties selected by the Company’s independent auditors and reasonably acceptable to , the legal counsel, certified public accountants and/or executive compensation consultants selected by the Executive (which may be regular outside counsel to and the Company, respectively, shall select the legal counsel, certified public accountants and/or executive compensation consultants, whichever is applicable, who shall provide the opinions required by this Section 13(d), which opinion sets . The opinions required hereunder shall set forth (Aa) the amount of the Base Period IncomeIncome of the Executive, (Bb) the amount and present value of Total Payments, Payments and (Cc) the amount and present value of any excess parachute payments. In the event that such opinions determine that there would be an excess parachute payment, and (D) the amount of any Gross-Up Termination Payment or the reduction of any other payment determined by such counsel to be includable in Total Payments shall be reduced or eliminated as specified by the Executive in writing delivered to the Safe Harbor CapCompany within thirty (30) days of his or her receipt of such opinions or, if the Executive fails to so notify the Company, then as the case may beCompany shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no excess parachute payment. As used in The provisions of this AgreementSection 13(d), including the term “Base Period Income” means an amount equal calculations, notices and opinions provided for herein shall be based upon the conclusive presumption that the compensation and other benefits, including but not limited to the Executive’s “annualized includable compensation for Gross Income, earned on or after the base period” as defined in Section 280G(d)(1) (or any successor provision) date of a Change of Control by the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by Executive pursuant to the Company’s independent auditors compensation programs if such payments would have been made in accordance with the principles of Section 280G(d)(3) and (4) (or future in any successor provisions) of event, even though the Code, which determination shall be evidenced in a certificate timing of such auditors addressed payment is triggered by the Change of Control, are reasonable compensation for services rendered prior to the Company and Change of Control; provided, however, that in the Executive. The opinion of National Tax Counsel shall be addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National Tax Counsel event legal counsel so requests in connection with the opinion required by this Section 8(c)(iii13(d), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants consultants, selected by the Executive and the Company pursuant to the procedures set forth above, shall provide an opinion, upon which such legal counsel may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered prior to be received the Change of Control by the Executive solely with respect to its status under Section Executive. In the event that the provisions of Sections 280G and 4999 of the Code and are repealed without succession, this Section 13(d) shall be of no further force or effect. (e) The Termination Payment shall be paid to the regulations thereunder. Within five Executive as follows: (5i) In the event the Executive’s Termination Date is during a Change of Control Period, any Termination Payment shall be paid in a lump sum not later than ten (10) days following the Executive’s Termination Date. Such lump sum payment shall not be reduced by any present value, interest rate, or similar factor. Further, the Executive shall not be required to mitigate the amount of such payment by securing other employment or otherwise and such payment shall not be reduced by reason of the Executive securing other employment or for any other reason. (ii) In the event the Executive’s Termination Date is prior to or after a Change of Control Period, any Termination Payment shall be paid to the National Tax CounselExecutive in equal installments on the Company’s opinion twenty-six (26) regular bi-weekly paydays over the twelve-month period following the Termination Date. Such payments shall not be reduced or increased by any present value, interest rate, or similar factor. Further, the Executive shall not be required to mitigate the amount of such payment by securing other employment or otherwise and such payment shall not be reduced by reason of the Executive securing other employment or for any other reason. (f) Notwithstanding anything to the contrary herein, in no event will a termination of the Executive’s employment with the Company be deemed to trigger a right to receive a Termination Payment if the termination is received effected by the mutual written agreement of the Company and the Executive, the Company shall pay (or cause Executive to be paid) or distribute (or cause to be distributed) to or for the benefit accommodate a reassignment of the Executive to an entity created or acquired by the Company, or to which the Company has contributed rights to technology, assets or business plans, if at the time of such amounts as are then due to termination the Company owns or is acquiring a minimum of a 19% equity interest in such entity. In the event of any such termination, the Executive under this Agreementshall only be entitled to receive the Executive’s Accrued Benefits as of the Termination Date.

Termination Payment. (ia) The “If the Executive's employment is terminated as a result of death or disability, the lump sum Termination Payment” Payment payable to the Executive shall be an amount equal to (A) the Executive’s annual base salary immediately prior to the termination of the Executive’s employment plus (B) the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan 's Gross Income for the year in which preceding the termination of Termination Date. (b) If the Executive’s 's employment occurs. The is terminated by the Executive for Good Reason or by the Company for any reason other than death, disability or Cause, the Termination Payment shall be paid payable to the Executive in cash equivalent ten (10) business days after by the date Company or an affiliate of the executive’s termination Company shall be equal to the Executive's Gross Income for the year preceding the Termination Date. (c) If, during a Change of Control Period, the Executive's employment with is terminated by the Company. Such lump sum payment Executive for Good Reason or by the Company for any reason other than death, Disability, or Cause, the Termination Payment payable to the Executive by the Company or an affiliate of the Company shall not be reduced by any present value or similar factor, two (2.0) times the Executive's Gross Income for the year preceding the Termination Date. (d) It is the intention of the Company and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any that no portion of the Termination Payment or and any other payment "payments in the nature of compensation" (as defined in Section 280G of the Code and the regulations adopted thereunder) to or for the benefit of the Executive under this Agreement, or under any other agreement with agreement, plan or plan of the Company (in the aggregatearrangement, “Total Payments”), would constitute be deemed to be an “"excess parachute payment” " as defined in Section 280G (or any successor provision) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such . It is agreed that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% present value of the Total Payments that would be treated as “parachute payments” shall not exceed an amount equal to two and ninety-nine hundredths (2.99) times the Executive's Base Period Income, which is the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 4999 of the Code or which the Company may pay without loss of deduction under Section 280G (or any successor provision280G(a) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with the regulations issued under Section 1274(b)(2) (or any successor provision) 280G of the Code. Promptly Within sixty (60) days following a Covered delivery of the Notice of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G of the Code Code, the Executive and the Company shall, at the Company's expense, obtain such opinions as more fully described hereafter, which need not be unqualified, of legal counsel and certified public accountants or a firm of recognized executive compensation consultants. The Executive shall select said legal counsel, certified public accountants and executive compensation consultants; provided, however, that if the Company does not accept one (1) or any successor provision)more of the parties selected by the Executive, the Company shall provide the Executive with the names of such legal counsel, certified public accountants and/or executive compensation consultants as the Company may select; provided, further, however, that if the Executive does not accept the party or parties selected by the Company, the legal counsel, certified public accountants and/or executive compensation consultants selected by the Executive and the Company, at the Company’s expenserespectively, shall obtain select the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected legal counsel, certified public accountants and/or executive compensation consultants, whichever is applicable, who shall provide the opinions required by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Companythis Section 13(e), which opinion sets . The opinions required hereunder shall set forth (Aa) the amount of the Base Period IncomeIncome of the Executive, (Bb) the amount and present value of Total Payments, Payments and (Cc) the amount and present value of any excess parachute payments. In the event that such opinions determine that there would be an excess parachute payment, and (D) the amount of any Gross-Up Termination Payment or the reduction of any other payment determined by such counsel to be includable in Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includable compensation for the base period” as defined in Section 280G(d)(1) (or any successor provision) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined reduced or eliminated as specified by the Company’s independent auditors Executive in accordance with the principles of Section 280G(d)(3) and (4) (or any successor provisions) of the Code, which determination shall be evidenced in a certificate of such auditors addressed writing delivered to the Company and within thirty (30) days of his or her receipt of such opinions or, if the ExecutiveExecutive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no excess parachute payment. The opinion provisions of National Tax Counsel this Section 13(e), including the calculations, notices and opinions provided for herein shall be addressed based upon the conclusive presumption that the compensation and other benefits, including but not limited to the Company and Accrued Benefits, earned on or after the date of Change of Control by the Executive and shall be binding upon pursuant to the Company and Company's compensation programs if such payments would have been made in the Executive. If future in any event, even though the timing of such National Tax Counsel payment is triggered by the Change of Control, are reasonable compensation for services rendered prior to the Change of Control; provided, however, that in the event legal counsel so requests in connection with the opinion required by this Section 8(c)(iii13(e), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants consultants, selected by the Executive and the Company pursuant to the procedures set forth above, shall provide an opinion, upon which such legal counsel may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered prior to be received the Change of Control by the Executive solely with respect to its status under Section Executive. In the event that the provisions of Sections 280G and 4999 of the Code and the regulations thereunder. Within five (5are repealed without succession, this Section 13(e) days after the National Tax Counsel’s opinion is received by the Company and the Executive, the Company shall pay (be of no further force or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of the Executive such amounts as are then due to the Executive under this Agreementeffect.

Termination Payment. (ia) The “Termination Payment” shall be an amount equal to (A) If the Executive’s annual base salary immediately prior to 's employment is terminated as a result of death or disability, the termination of the Executive’s employment plus (B) the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan for the year in which the termination of the Executive’s employment occurs. The lump sum Termination Payment shall be paid payable to the Executive in cash equivalent ten shall be equal to the Executive's Gross Income. The Company will pay the full medical, dental and vision premiums for continuation coverage under COBRA for the Executive and dependents who qualify for continuation coverage under COBRA for one year following the Termination Date. (10b) business days after If the date Executive's employment is terminated by the Executive for Good Reason or by the Company for any reason other than death, disability or Cause, the Termination Payment payable to the Executive by the Company or an affiliate of the executive’s termination Company shall be equal to the Executive's Gross Income. The Company will pay the full medical, dental and vision premiums for continuation coverage under COBRA for the Executive and dependents who qualify for continuation coverage under COBRA for one year following the Termination Date. (c) If, during a Change of Control Period, the Executive's employment with is terminated by the CompanyExecutive for Good Reason or by the Company for any reason other than death, Disability, or Cause, the Termination Payment payable to the Executive by the Company or an affiliate of the Company shall be one and one-half (1.5) times the Executive's Gross Income. Such lump sum payment shall not be reduced by any present value or similar factorThe Company will pay the full medical, dental and vision premiums for continuation coverage under COBRA for the Executive and dependents who qualify for continuation coverage under COBRA for one and one-half (1.5) years following the Termination Date. (d) It is the intention of the Company and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any that no portion of the Termination Payment or and any other payment "payments in the nature of compensation" (as defined in Section 280G of the Code and the regulations adopted thereunder) to or for the benefit of the Executive under this Agreement, or under any other agreement with agreement, plan or plan of the Company (in the aggregatearrangement, “Total Payments”), would constitute be deemed to be an “"excess parachute payment” " as defined in Section 280G (or any successor provision) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such . It is agreed that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% present value of the Total Payments that would be treated as “parachute payments” shall not exceed an amount equal to two and ninety-nine hundredths (2.99) times the Executive's Base Period Income, which is the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 4999 of the Code or which the Company may pay without loss of deduction under Section 280G (or any successor provision280G(a) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with the regulations issued under Section 1274(b)(2) (or any successor provision) 280G of the Code. Promptly Within sixty (60) days following a Covered delivery of the Notice of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G of the Code Code, the Executive and the Company shall, at the Company's expense, obtain such opinions as more fully described hereafter, which need not be unqualified, of legal counsel and certified public accountants or a firm of recognized executive compensation consultants. The Executive shall select said legal counsel, certified public accountants and executive compensation consultants; provided, however, that if the Company does not accept one (1) or any successor provision)more of the parties selected by the Executive, the Company shall provide the Executive with the names of such legal counsel, certified public accountants and/or executive compensation consultants as the Company may select; provided, further, however, that if the Executive does not accept the party or parties selected by the Company, the legal counsel, certified public accountants and/or executive compensation consultants selected by the Executive and the Company, at the Company’s expenserespectively, shall obtain select the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected legal counsel, certified public accountants and/or executive compensation consultants, whichever is applicable, who shall provide the opinions required by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Companythis Section 13(e), which opinion sets . The opinions required hereunder shall set forth (Aa) the amount of the Base Period IncomeIncome of the Executive, (Bb) the amount and present value of Total Payments, Payments and (Cc) the amount and present value of any excess parachute payments. In the event that such opinions determine that there would be an excess parachute payment, and (D) the amount of any Gross-Up Termination Payment or the reduction of any other payment determined by such counsel to be includable in Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includable compensation for the base period” as defined in Section 280G(d)(1) (or any successor provision) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined reduced or eliminated as specified by the Company’s independent auditors Executive in accordance with the principles of Section 280G(d)(3) and (4) (or any successor provisions) of the Code, which determination shall be evidenced in a certificate of such auditors addressed writing delivered to the Company and within thirty (30) days of his or her receipt of such opinions or, if the ExecutiveExecutive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no excess parachute payment. The opinion provisions of National Tax Counsel this Section 13(e), including the calculations, notices and opinions provided for herein shall be addressed based upon the conclusive presumption that the compensation and other benefits, including but not limited to the Company and Accrued Benefits, earned on or after the date of Change of Control by the Executive and shall be binding upon pursuant to the Company and Company's compensation programs if such payments would have been made in the Executive. If future in any event, even though the timing of such National Tax Counsel payment is triggered by the Change of Control, are reasonable compensation for services rendered prior to the Change of Control; provided, however, that in the event legal counsel so requests in connection with the opinion required by this Section 8(c)(iii13(e), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants consultants, selected by the Executive and the Company pursuant to the procedures set forth above, shall provide an opinion, upon which such legal counsel may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered prior to be received the Change of Control by the Executive solely with respect to its status under Section Executive. In the event that the provisions of Sections 280G and 4999 of the Code and the regulations thereunder. Within five are repealed without succession, this Section 13(e) shall be of no further force or effect. (5f) The Termination Payment shall be payable in a lump sum not later than ten (10) days after following the National Tax Counsel’s opinion Executive's Termination Date. Such lump sum payment shall not be reduced by any present value or similar factor. Further, the Executive shall not be required to mitigate the amount of such payment by securing other employment or otherwise and such payment shall not be reduced by reason of the Executive securing other employment or for any other reason. (g) Notwithstanding anything to the contrary herein, in no event will a termination of Executive's employment with the Company be deemed to trigger a right to receive a Termination Payment if the termination is received effected by the mutual agreement of the Company and Executive to accommodate a reassignment of Executive to an entity created or acquired by the Company, or to which the Company has contributed rights to technology, assets or business plans, if at the time of such termination the Company owns or is acquiring a minimum of a 19% equity interest in such entity. In the event of any such termination, the Executive shall only be entitled to receive the Executive, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit 's Accrued Benefits as of the Executive such amounts as are then due to the Executive under this AgreementTermination Date.

Termination Payment. (ia) The “Termination Payment” shall be an amount equal to (A) the Executive’s annual base salary immediately prior to the termination of If the Executive’s employment plus is terminated as a result of death or Disability, the Executive shall receive a Termination Payment equal to one (B1.0) times the Executive’s target annual bonus Gross Income. The Company will also pay the full medical, dental and vision premiums for continuation coverage under the Company’s Senior Management Bonus Plan COBRA for the Executive and dependents who qualify for continuation coverage under COBRA for one year in which the termination following Termination Date. (b) If, prior to a Change of Control Period, the Executive’s employment occurs. The is terminated by the Executive for Good Reason or by the Company for any reason other than death, Disability or Cause, the Termination Payment shall be paid payable to the Executive in cash equivalent ten (10) business days after by the date Company or an affiliate of the executiveCompany shall be equal to one (1.0) times the Executive’s termination Gross Income. The Company will pay the full medical, dental and vision premiums for continuation coverage under COBRA for the Executive and dependents who qualify for continuation coverage under COBRA for one year following the Termination Date. (c) If, during a Change of Control Period, the Executive’s employment with is terminated by the CompanyExecutive for Good Reason During a Change of Control or by the Company for any reason other than death, Disability, or Cause, the Termination Payment payable to the Executive by the Company or an affiliate of the Company shall be two (2.0) times the Executive’s Gross Income. Such lump sum payment shall not be reduced by any present value or similar factorThe Company will pay the full medical, dental and vision premiums for continuation coverage under COBRA and, after expiration of the COBRA continuation period, for conversion coverage for the Executive and dependents who qualify for continuation coverage under COBRA for two (2) years following the Termination Date. (d) It is the intention of the Company and the Executive shall not be required to mitigate that the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment benefits under this Agreement shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any capped such that no portion of the Termination Payment or and any other payment “payments in the nature of compensation” (as defined in Section 280G of the Code and the regulations adopted thereunder) to or for the benefit of the Executive under this Agreement, or under any other agreement with agreement, plan or plan of the Company (in the aggregatearrangement, “Total Payments”), would constitute shall be deemed to be an “excess parachute payment” as defined in Section 280G (or any successor provision) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such . It is agreed that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% present value of the Total Payments that would be treated as “parachute payments” shall not exceed an amount equal to two and ninety-nine hundredths (2.99) times the Executive’s Base Period Income, which is the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 4999 of the Code or which the Company may pay without loss of deduction under Section 280G (or any successor provision280G(a) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with the regulations issued under Section 1274(b)(2) (or any successor provision) 280G of the Code. Promptly Within sixty (60) days following a Covered delivery of the Notice of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G of the Code (or any successor provision)Code, the Executive and the CompanyCompany shall, at the Company’s expense, shall obtain the opinion (such opinions as more fully described hereafter, which need not be unqualified, of legal counsel and certified public accountants or a firm of recognized executive compensation consultants. The Executive shall select said legal counsel, certified public accountants and executive compensation consultants; provided, however, that if the Company does not accept one (1) or more of nationally recognized tax counsel (“National Tax Counsel”) the parties selected by the Executive, the Company shall provide the Executive with the names of such legal counsel, certified public accountants and/or executive compensation consultants as the Company may select; provided, further, however, that if the Executive does not accept the party or parties selected by the Company’s independent auditors and reasonably acceptable to , the legal counsel, certified public accountants and/or executive compensation consultants selected by the Executive (which may be regular outside counsel to and the Company, respectively, shall select the legal counsel, certified public accountants and/or executive compensation consultants, whichever is applicable, who shall provide the opinions required by this Section 13(d), which opinion sets . The opinions required hereunder shall set forth (Aa) the amount of the Base Period IncomeIncome of the Executive, (Bb) the amount and present value of Total Payments, Payments and (Cc) the amount and present value of any excess parachute payments. In the event that such opinions determine that there would be an excess parachute payment, and (D) the amount of any Gross-Up Termination Payment or the reduction of any other payment determined by such counsel to be includable in Total Payments shall be reduced or eliminated as specified by the Executive in writing delivered to the Safe Harbor CapCompany within thirty (30) days of his or her receipt of such opinions or, if the Executive fails to so notify the Company, then as the case may beCompany shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no excess parachute payment. As used in The provisions of this AgreementSection 13(d), including the term “Base Period Income” means an amount equal calculations, notices and opinions provided for herein shall be based upon the conclusive presumption that the compensation and other benefits, including but not limited to the Executive’s “annualized includable compensation for Gross Income, earned on or after the base period” as defined in Section 280G(d)(1) (or any successor provision) date of a Change of Control by the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by Executive pursuant to the Company’s independent auditors compensation programs if such payments would have been made in accordance with the principles of Section 280G(d)(3) and (4) (or future in any successor provisions) of event, even though the Code, which determination shall be evidenced in a certificate timing of such auditors addressed payment is triggered by the Change of Control, are reasonable compensation for services rendered prior to the Company and Change of Control; provided, however, that in the Executive. The opinion of National Tax Counsel shall be addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National Tax Counsel event legal counsel so requests in connection with the opinion required by this Section 8(c)(iii13(d), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants consultants, selected by the Executive and the Company pursuant to the procedures set forth above, shall provide an opinion, upon which such legal counsel may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered prior to be received the Change of Control by the Executive solely with respect to its status under Section Executive. In the event that the provisions of Sections 280G and 4999 of the Code and are repealed without succession, this Section 13(d) shall be of no further force or effect. (e) The Termination Payment shall be payable as follows: (i) In the regulations thereunder. Within five event the Executive’s Termination Date is during a Change of Control Period, any Termination Payment shall be paid to the Executive in a lump sum not later than ten (510) days following the Executive’s Termination Date. Such lump sum payment shall not be reduced by any present value, interest rate, or similar factor. Further, the Executive shall not be required to mitigate the amount of such payment by securing other employment or otherwise and such payment shall not be reduced by reason of the Executive securing other employment or for any other reason. (ii) In the event the Executive’s Termination Date is prior to or after a Change of Control Period, any Termination Payment shall be paid to the National Tax CounselExecutive in equal installments on the Company’s opinion twenty-six (26) regular bi-weekly paydays over the twelve-month period following the Termination Date. Such payments shall not be reduced or increased by any present value, interest rate, or similar factor. Further, the Executive shall not be required to mitigate the amount of such payment by securing other employment or otherwise and such payment shall not be reduced by reason of the Executive securing other employment or for any other reason. (f) Notwithstanding anything to the contrary herein, in no event will a termination of Executive’s employment with the Company be deemed to trigger a right to receive a Termination Payment if the termination is received effected by the mutual agreement of the Company and Executive to accommodate a reassignment of Executive to an entity created or acquired by the Company, or to which the Company has contributed rights to technology, assets or business plans, if at the time of such termination the Company owns or is acquiring a minimum of a 19% equity interest in such entity. In the event of any such termination, the Executive shall only be entitled to receive the Executive, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit ’s Accrued Benefits as of the Executive such amounts as are then due to the Executive under this AgreementTermination Date.

Termination Payment. (ia) The “If the Executive's employment is terminated as a result of death or disability, the lump sum Termination Payment” Payment payable to the Executive shall be an amount equal to (A) the greater of Executive’s annual base salary immediately prior to the termination of the Executive’s employment plus (B) the Executive’s target annual bonus under the Company’s Senior Management Bonus Plan 's Gross Income for the year preceding the Termination Date, or the amount set forth in which the termination of paragraph 6 on an annualized basis. (b) If the Executive’s 's employment occurs. The is terminated by the Executive for Good Reason or by the Company for any reason other than death, disability or Cause, the Termination Payment shall be paid payable to the Executive in cash equivalent ten (10) business days after by the date Company or an affiliate of the executive’s termination Company shall be equal to two (2) times the Executive's Gross Income for the year preceding the Termination Date, or the amount set forth in paragraph 6 on an annualized basis. (c) If, during a Change of Control Period, the Executive's employment with is terminated by the Company. Such lump sum payment Executive for Good Reason or by the Company for any reason other than death, Disability, or Cause, the Termination Payment payable to the Executive by the Company or an affiliate of the Company shall not be reduced by any present value 2.99 times the Executive's Gross Income for the year preceding the Termination Date, or similar factor, the amount set forth in paragraph 6 on an annualized basis. (d) It is the intention of the Company and the Executive shall not be required to mitigate the amount of the Termination Payment by securing other employment or otherwise, nor will such Termination Payment be reduced by reason of the Executive securing other employment or for any other reason. The Termination Payment shall be in lieu of, and acceptance by the Executive of the Termination Payment shall constitute the Executive’s release of any rights of the Executive to, any other cash severance payments under any Company severance policy, practice or agreement. (ii) Notwithstanding any other provision of this Agreement, if any that no portion of the Termination Payment or and any other payment "payments in the nature of compensation" (as defined in Section 28OG of the Code and the regulations adopted thereunder) to or for the benefit of the Executive under this Agreement, or under any other agreement with agreement, plan or plan of the Company (in the aggregatearrangement, “Total Payments”), would constitute be deemed to be an “"excess parachute payment” " as defined in Section 280G (or any successor provision) of the Internal Revenue Code of 1986, including any amendments thereto or any successor tax codes thereof (the “Code”), then the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such . It is agreed that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 (or any successor provision) of the Code and any interest charges or penalties in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c)(ii), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is less than 10% present value of the Total Payments that would be treated as “parachute payments” shall not exceed an amount equal to two and ninety-nine hundredths (2.99) times the Executive's Base Period Income, which is the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 4999 of the Code or which the Company may pay without loss of deduction under Section 280G (or any successor provision28OG(a) of the Code, then the amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. For purposes of reducing the Total Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (iii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G (or any successor provision) of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall shalt be calculated in accordance with the regulations issued under Section 1274(b)(2) (or any successor provision) 28OG of the Code. Promptly Within sixty (60) days following a Covered delivery of the Notice of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an “excess parachute payment” payment as defined in Section 280G 28OG of the Code Code, the Executive and the Company shall, at the Company's expense, obtain such opinions as more fully described hereafter, which need not be unqualified, of legal counsel and certified public accountants or a firm of recognized executive compensation consultants. The Executive shall select said legal counsel, certified public accountants and executive compensation consultants; provided, however, that if the Company does not accept one (1) or any successor provision)more of the parties selected by the Executive, the Company shall provide the Executive with the names of such legal counsel, certified public accountants and/or executive compensation consultants as the Company may select; provided, further, however, that if the Executive does not accept the party or parties selected by the Company, the legal counsel, certified public accountants and/or executive compensation consultants selected by the Executive and the Company, at the Company’s expenserespectively, shall obtain select the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected legal counsel, certified public accountants and/or executive compensation consultants, whichever is applicable, who shall provide the opinions required by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Companythis Section 13(d), which opinion sets . The opinions required hereunder shall set forth (Aa) the amount of the Base Period IncomeIncome of the Executive, (Bb) the amount and present value of Total Payments, Payments and (Cc) the amount and present value of any excess parachute payments. In the event that such opinions determine that there would be an excess parachute payment, and (D) the amount of any Gross-Up Termination Payment or the reduction of any other payment determined by such counsel to be includable in Total Payments to the Safe Harbor Cap, as the case may be. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includable compensation for the base period” as defined in Section 280G(d)(1) (or any successor provision) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined reduced or eliminated as specified by the Company’s independent auditors Executive in accordance with the principles of Section 280G(d)(3) and (4) (or any successor provisions) of the Code, which determination shall be evidenced in a certificate of such auditors addressed writing delivered to the Company within thirty (30) days of his or her receipt of such opinions or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be no excess parachute payment. Ile provisions of this Section 13(d), including the calculations, notices and the Executive. The opinion of National Tax Counsel opinions provided for herein shall be addressed based upon the conclusive presumption that the compensation and other benefits, including but not limited to the Company and Accrued Benefits, earned on or after the date of Change of Control by the Executive and shall be binding upon pursuant to the Company and Company's compensation programs if such payments would have been made in the Executive. If future in any event, even though the timing of such National Tax Counsel payment is triggered by the Change of Control, are reasonable compensation for services rendered prior to the Change of Control; provided, however, that in the event legal counsel so requests in connection with the opinion required by this Section 8(c)(iii13(d), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants consultants, selected by the Executive and the Company pursuant to the procedures set forth above, shall provide an opinion, upon which such legal counsel may rely, as to the reasonableness of any item of compensation as reasonable compensation for services rendered prior to be received the Change of Control by the Executive solely with respect to its status under Section Executive. In the event that the provisions of Sections 280G and 4999 of the Code and the regulations thereunder. Within five are repealed without succession, this Section 13(d) shall be of no further force or effect. (5e) The Termination Payment shall be payable in a lump sum not later than ten (10) days after following the National Tax Counsel’s opinion Executive's Termination Date. Such lump sum payment shall not be reduced by any present value or similar factor. Further, the Executive shall not be required to mitigate the amount of such payment by securing other employment or otherwise and such payment shall not be reduced by reason of the Executive securing other employment or for any other reason. (f) Notwithstanding anything to the contrary herein, in no event will a termination of Executive's employment with the Company be deemed to trigger a right to receive a Termination Payment if the termination is received effected by the mutual agreement of the Company and Executive to accommodate a reassignment of Executive to an entity created or acquired by the Company, or to which the Company has contributed rights to technology, assets or business plans, if at the time of such termination the Company owns or is acquiring a minimum of a 19% equity interest in such entity. In the event of any such termination, the Executive shall only be entitled to receive the Executive, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit 's Accrued Benefits as of the Executive such amounts as are then due to the Executive under this AgreementTermination Date.