At-Will Employment Agreement with Executive

At-Will Employment Agreement with Executive

Employment Agreement made on the , hereinafter sometimes referred to as the Effective Date, between of , referred to herein as Employee, and , a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as Company.

Whereas, Employee has been employed by the Company on an at-will basis as , and Employee and the Company desire that Employee continue working for the Company in this capacity; and

Whereas, Employee and Company further desire to enter into this written Employment Agreement (this Agreement) and to be bound by the terms and conditions of this Agreement;

I. Capacity and Duties

A. At-Will Employment

Company has employed and shall continue to employ Employee pursuant to this Agreement on an at-will basis. Employee's employment under this Agreement with the Company is for an unspecified duration and may be terminated at any time by either Employee or the Company, for any or no reason, with or without prior notice, except as described in Section III.

B. Capacity and Duties

Employee shall be subject to the supervision and control of the Company's Chairman of the Board and Chief Executive Officer and the Board of Directors, and agrees to perform such duties and responsibilities normally associated with the position of and as may reasonably be assigned to Employee from time to time by the Company's Chairman of the Board and Chief Executive Officer or by the Company's Board of Directors. Employee is required to work those hours necessary to perform properly such duties and responsibilities normally associated with the position of and as may reasonably be assigned to Employee from time to time pursuant to this Agreement.

Notwithstanding the foregoing in this Paragraph B, after a Closing Date (as defined below in this Agreement), Employee shall have such title, duties and responsibilities and be subject to the supervision and control of such persons as may be, after taking into account the fact that a Change of Control (as defined below in this Agreement) has occurred and other relevant facts and circumstances, determined by the Company in its sole discretion from time to time.

2. Compensation and Fringe Benefits

A. Compensation

1. Base Salary

As base compensation for Employee's services under this Agreement, the Company shall pay to Employee an initial salary at an annual rate of $ (the Base Salary). Employee's Base Salary will be payable in accordance with the Company's regular payroll practices in effect from time to time during Employee's employment, but not less than monthly. Employee's Base Salary shall be reviewed by the Company no less often than annually and shall be adjusted (upward, and with the consent of Employee, downward) upon review as determined by the Company.

2. Bonus

a. Incentive Bonus

Employee shall be eligible to receive an annual incentive bonus pursuant to and in accordance with the (the Plan) and subject to the Plan's eligibility requirements and other terms, conditions and restrictions (the Incentive Bonus); provided, however, that the Plan and its terms are subject to change and the Plan may be modified or eliminated in accordance with the terms of the Plan.

b. Additional Bonuses

Employee shall not be entitled to receive any other bonuses from the Company; provided, however, that the Company may award Employee additional bonuses as it determines are appropriate in its sole discretion (the Additional Bonuses).

B. Fringe Benefits

1. Insurance and Retirement Benefits

Employee (and his eligible dependents, where applicable) shall be eligible to participate in the Company's insurance and health benefit plans to the extent and upon the terms offered to the Company's other senior executive officers, including but not limited to any 401(k) plans, supplemental executive retirement plans (“SERP”), savings plans, incentive plans, stock purchase plans, stock incentive plans, retirement plans or deferred compensation plans, subject to the plans' respective eligibility requirements and other terms, conditions, restrictions and exclusions. To the extent applicable, Employee shall be entitled to participate in such plans as a Tier employee. Nothing in this Agreement shall preclude or otherwise restrict the Company's right to modify or terminate any insurance or other benefit plan, policy or program as it deems appropriate in its sole discretion.

2. Vacation

Employee shall be entitled to weeks of paid vacation during each full calendar year of his employment in accordance with the terms and provisions of the Company's policies and practices in effect from time to time.

3. Expense Reimbursement

Company shall reimburse Employee for all reasonable expenses incurred by him in connection with the performance of his duties under this Agreement in accordance with the Company's regular reimbursement policies as in effect from time to time and upon receipt of itemized vouchers and such other supporting information as the Company may reasonably require. The reimbursement of any such eligible expense shall be made on or before the last day of the calendar year next following the calendar year in which the expense was incurred.

4. Transportation Allowance

Employee shall receive a monthly transportation allowance in the amount of $ (the Transportation Allowance). The Transportation Allowance shall be payable in accordance with the Company's regular payroll practices in effect from time to time.

5. Additional Benefits

Employee shall be eligible to participate in such other fringe benefits upon the terms offered to the Company's other senior executive officers and subject to the terms, conditions, restrictions and exclusions of any such fringe benefit plans or programs.

6. Indemnification

a. The Company shall maintain a directors’ and officers’ liability insurance policy while Employee is employed by the Company pursuant to this Agreement to the extent such a policy is available at commercially reasonable rates as determined by the Board of Directors. Employee shall be entitled to coverage under such policy as an officer of the Company, subject to the policy's terms, conditions, restrictions and exclusions.

b. In addition to the Company's obligation to maintain such insurance, the Company shall, to the fullest extent permitted by and in accordance with applicable law as it may be amended from time to time, indemnify Employee in connection with any claim, action, suit, investigation or proceeding arising out of or relating to performance by Employee of services for, or any action of Employee as a director, officer, member, manager or employee of, the Company, or of any other person or enterprise for whom Employee is serving at the request of the Company as a director, officer, member, manager or employee. Expenses reasonably incurred by Employee in defending such a claim, action, suit, investigation or proceeding shall, to the extent permitted by applicable law, be paid by the Company in advance of the final disposition of such a claim, action, suit, investigation or proceeding upon receipt of a written undertaking by or on behalf of Employee to repay such amounts if it shall ultimately be determined that Employee is not entitled to indemnification by the Company as provided in this Paragraph 6. Notwithstanding anything in the foregoing to the contrary, in no event will Employee be entitled to any indemnification (including but not limited to any advancement of fees or expenses) pursuant to this Paragraph 6 with respect to any action, suit or proceeding brought or made by Employee against the Company or any of its affiliates or officers, directors, employees or agents. The provisions of this Paragraph 6 shall be in addition to any indemnification rights Employee may have by law, contract, charter, by-law, policy of insurance or otherwise.

C. Payments After Termination of Employment

1. Termination for Any Reason

Regardless of the reason for the termination of Employee's employment, whether by Employee or the Company, whether or not due to Employee's death or Disability (as that term is defined in Section III, and whether or not for Cause (as that term is defined in Section III, or for Good Reason (as that term is defined in Section III), Employee (or his) estate) will receive unpaid Base Salary for any days actually worked by Employee prior to the termination of his employment, expense reimbursement for all reasonable expenses incurred by him in connection with the performance of his duties prior to the termination of his employment, and payment for accrued but unused vacation pay to the extent Employee may be eligible for such payment under the Company's policies.

2. Termination by the Company Without Cause or Due to Employee's Death, Disability or by Employee for Good Reason

(i) Subject to the terms and conditions set forth in Subparagraph 4 of this Paragraph C, (i) if Employee is terminated by the Company without Cause (as that term is defined in Section III) or due to his Disability (as that term is defined in Section III), (ii) if Employee terminates his employment with the Company for Good Reason (as that term is defined in Section III), or (iii) employment with the Company terminates due to his death, then in addition to the payments described in Subparagraph 1 above:

a. The Company shall pay Employee any accrued but unpaid Incentive Bonus with respect to any completed Plan Year (as that term is defined in the Plan) ending prior to the date on which Employee's employment terminates, to be paid in accordance with the terms of the Plan. Payment of any such amount shall be made at the same time these amounts would have been paid if Employee's employment had not terminated.

b. The Company shall pay Employee a prorated bonus calculated by multiplying the higher of (x) the sum of the Incentive Bonus and any Additional Bonuses Employee received with respect to the last full Company fiscal year during which Employee was employed by the Company (and for which bonus determinations have been made), or (y) the average of the Incentive Bonuses and any Additional Bonuses Employee received during each of the last two full fiscal years during which Employee was employed by the Company, by a fraction, the numerator of which is the number of days in the current fiscal year through Employee's termination date, and the denominator of which is 365; provided, however, that the sum of any Incentive Bonuses and any Additional Bonuses Employee received in respect of Fiscal shall be deemed to be $ regardless of the actual amount of such bonuses. This amount will be paid in a single lump sum as soon as practicable following Employee's termination of employment; provided, however, that if any portion of such payment constitutes a payment of nonqualified deferred compensation for purposes of Section 409A of the Internal Revenue Code, and the payment of any portion of such payments would be in violation of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, then, to the extent required to avoid a violation of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, such payment shall be deferred until the six-month anniversary date of Employee's termination. Deferred benefits will be paid with interest at the lesser of the prime rate (as published from time to time in the Money Rates section of the Wall Street Journal) and %.

c. Company shall pay Employee a severance equal to the sum of (A) the higher of (x) Employee's annual Base Salary (at the rate in effect on the date of termination), or (y) the average of the annual Base Salary Employee received during each of the last full fiscal years during which Employee was employed by the Company, and (B) the higher of (x) the sum of the Incentive Bonus and any Additional Bonuses Employee received with respect to the last full Company fiscal year during which Employee was employed by the Company, or (y) the average of the Incentive Bonuses and any Additional Bonuses Employee received during each of the last full fiscal years during which Employee was employed by the Company; provided, however, that the sum of any Incentive Bonuses and any Additional Bonuses Employee received in respect of Fiscal shall be deemed to be $ regardless of the actual amount of such bonuses, and provided further that any amounts payable to Employee or his estate, surviving spouse, eligible dependents or other beneficiaries as a death or disability benefit under the Company's SERP (the SERP Payment) shall be deducted from the amounts otherwise payable pursuant to this subparagraph c. This amount will be paid in a single lump sum as soon as practicable following Employee's termination of employment; provided, however, that if any portion of such payment constitutes a payment of nonqualified deferred compensation for purposes of Section 409A of the Internal Revenue Code, and the payment of any portion of such payments would be in violation of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, then, to the extent required to avoid a violation of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, such payment shall be deferred until the six-month anniversary date of Employee's termination. Deferred benefits will be paid with interest at the lesser of the prime rate (as published from time to time in the “Money Rates” section of the Wall Street Journal) and %. If the full amount of the SERP Payment is not actually paid to Employee or his estate, surviving spouse, eligible dependents or other beneficiaries within days after the termination of Employee's employment giving rise to the right to receive payment under this subparagraph c, then within days after such termination, the Company shall pay to Employee or his estate, surviving spouse, eligible dependents or other beneficiaries an amount equal to the difference between the full amount of the SERP Payment and any portion of the SERP Payment previously paid. If, subsequent to the payment of any such difference, Employee or his estate, surviving spouse, eligible dependents or other beneficiaries receive any payment on account of any unpaid portion of the SERP Payment, then within days after receipt of any such payment, the recipient shall pay such amount to the Company.

d. The Company shall reimburse Employee (or his surviving spouse or eligible dependents, in the event of Employee's death) for the full cost of continuation coverage under the Company's group health plan pursuant to the Consolidated Omnibus Budget Reconciliation Act (COBRA) at the same level of coverage Employee (and his) eligible dependents, where applicable) had as of Employee's termination date (collectively, COBRA Payments) for up to months, so long as Employee (or Employee's eligible dependents) remain eligible for continuation coverage under COBRA and provided that Employee is eligible for and timely elects continuation coverage under COBRA and continues to make COBRA payments on a timely basis. If Employee provides to the Company within days after his termination written notice that he elects to receive the COBRA Payments in a lump sum, then as soon as practicable after such notice the Company shall pay to Employee a lump sum equal to the aggregate amount of COBRA Payments Employee would have received as reimbursement of COBRA payments for the full initial -month period of COBRA continuation coverage (less any COBRA payments made by the Company for which Employee is required to reimburse the Company). Employee acknowledges that this benefit (whether paid in a lump sum or in installments) may be taxable to Employee. Payment of reimbursements pursuant to this subparagraph d shall in all cases be made in a time and manner consistent with the requirements of Treasury Regulations regarding payment of reimbursements under Internal Revenue Code Section 409A. If Employee (or his) surviving spouse or eligible dependents, in the event of Employee's death) is eligible for COBRA continuation coverage beyond the initial -month period of COBRA continuation coverage (Extended COBRA Coverage), so long as Employee (or Employee's eligible dependents) timely elects continuation of coverage under COBRA and makes the COBRA payments on a timely basis, Employee (and his eligible dependents, where applicable) may continue the Extended COBRA Coverage at Employee's sole cost and expense, which cost and expense will not be reimbursed by the Company.

e. At such time as Employee or Employee's eligible dependents become ineligible for continuation coverage under the Company's group health plan pursuant to COBRA, the Company shall take reasonable steps to assist Employee and Employee's eligible dependents in securing alternative health coverage on a fully insured basis (which may be in the form of conversion coverage, if such coverage is available from any insurance carrier which is at that time providing coverage or services in connection with a Company group health plan) or, if a determination is made by the Company in its sole discretion that coverage can be made available to Employee and Employee's eligible dependents after Employee or Employee's eligible dependents cease to be eligible for continuation coverage under COBRA without resulting in the health benefits becoming taxable to Employee, then the Company will permit Employee and Employee's eligible dependents to continue to participate in the Company's group health plan with payment of premiums comparable to those required under either the Company's plan, or COBRA, at the option of the Company. Payment of premiums under any such arrangement will be made by Employee from Employee's own funds and will not be subject to reimbursement by the Company.

f. Unless otherwise specifically provided to the contrary in the applicable grant or award document (as such grant or award document may be modified by the Company), all of Employee's unvested options to acquire Company stock and unvested restricted Company stock shall immediately vest, with such accelerated vesting to be otherwise in accordance with the terms and conditions of the applicable grant or award document and plan. (The provisions of this subparagraph f shall be considered to be an amendment to any applicable grant or award document to the extent necessary to implement the terms of this subparagraph f.)

3. Termination in Connection with a Change of Control.

Subject to the terms and conditions set forth in the following Subparagraph 4 and subject to the occurrence of the Closing Date with respect to the subject Change of Control, if (x) the Company terminates Employee's employment for any reason (including, but not limited to, Disability) or Employee's employment terminates due to Employee's death during the period beginning days prior to a Change of Control (as defined in Section III) and ending on the applicable Closing Date, (y) the Company terminates Employee's employment with the Company for any reason (including, but not limited to, Disability) or Employee's employment terminates due to Employee's death within one year following the applicable Closing Date, provided that Employee was employed by the Company on the applicable Closing Date, or (z) Employee terminates Employee's employment with the Company for: (1) Good Reason (provided, however, that solely for purposes of this Subparagraph 3, Good Reason shall not include the facts or circumstances described in clause (ii) of the definition of Good Reason set forth in Section III) within one year following the Closing Date, provided that Employee was employed by the Company on the applicable Closing Date, or (2) for any reason within days immediately preceding the one-year anniversary of the Closing Date, provided that Employee was employed by the Company on the applicable Closing Date, then in addition to the payments describe in Subparagraph 2 of this Paragraph C: the Company shall pay Employee (or his estate, surviving spouse, eligible dependents or other beneficiaries, in the event of Employee's death) severance in an amount that is equal to Employee's average total compensation (including Base Salary, Incentive Bonus and Additional Bonuses), calculated by determining the average (mean) total cash compensation Employee earned for the most recent full fiscal years worked prior to Employee's termination to exceed $ of total compensation for any one year, in order that such calculation is made on a basis consistent with the definition of recognized compensation under the Company's SERP as it exists on the effective date of this Agreement.

If severance is payable pursuant to this Subparagraph 3 as a result of Employee's death or Disability, any amount payable as described in this Subparagraph 3 will be reduced by any amount that is payable to Employee or his estate, surviving spouse, eligible dependents as a death or disability benefit under the Company's SERP (the COC SERP Payment). The amount payable under this Subparagraph 3 will be paid in a single lump sum as soon as practicable following Employee's termination of employment or the applicable Closing Date, if later; provided, however, that if any portion of such payment constitutes a payment of nonqualified deferred compensation for purposes of Section 409A of the Internal Revenue Code, and the payment of any portion of such payments would be in violation of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, then, to the extent required to avoid a violation of Section 409A(a)(2)(B)(i) of the Internal Revenue Code, such payment shall be deferred until the six-month anniversary date of Employee's termination. Deferred benefits will be paid with interest at the lesser of the prime rate (as published from time to time in the “Money Rates” section of the Wall Street Journal) and %. If the full amount of the COC SERP Payment is not actually paid to Employee or his estate, surviving spouse, eligible dependents or other beneficiaries within days after the termination of Employee's employment giving rise to the right to receive payment under this Subparagraph 3 or the applicable Closing Date, if later, then within days after such termination the Company shall pay to Employee or his estate, surviving spouse, eligible dependents or other beneficiaries an amount equal to the difference between the full amount of the COC SERP Payment and any portion of the COC SERP Payment previously paid. If, subsequent to the payment of any such difference, Employee or his estate, surviving spouse, eligible dependents receives any payment on account of any unpaid portion of the COC SERP Payment, then within days after receipt of any such payment, the recipient shall pay such amount to the Company. Notwithstanding anything in the foregoing to the contrary, any amounts paid pursuant to Subparagraph 2(c) of this Paragraph C shall be deducted from amounts payable pursuant to this Subparagraph 3.

4. Termination Agreement

Employee shall receive the benefits set forth in Subparagraph 2 or 3 of this Paragraph C if and only if (x) Employee (or his) estate, if Employee's employment terminates due to his death) duly executes and returns to the Company (and does not revoke if a revocation period is included in the sole discretion of the Company) a termination agreement (the Termination Agreement) substantially in the form attached to this Agreement as Exhibit A, as such form may be modified by the Company in its reasonable discretion solely to address developments in the law including legal claims that came into existence after the date of this Agreement; and (y) Employee complies in all material respects with his obligations under this Agreement and the Termination Agreement.

5. No Mitigation

In no event shall Employee be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Employee under any of the provisions of this Agreement, and such amounts shall not be reduced whether or not Employee obtains other employment.

III. Termination of Employment

A. Death of Employee

Employee's employment under this Agreement shall immediately terminate upon his death.

B. Employee's Disability

Employee's employment under this Agreement may be terminated by the Company in the event of Employee's Disability, which shall mean Employee's inability, for a total of weeks or more in any rolling -month period to perform the essential duties of Employee's position, with any reasonable accommodation required by law, due to a mental or physical impairment which substantially limits one or more major life activities. The determination as to whether Employee has a Disability shall be made by a physician selected by the Company, and Employee agrees to submit to reasonable medical examinations upon the request and at the expense of the Company.

C. Termination for Cause

Company may terminate Employee's employment at any time for Cause, which for purposes of this Agreement shall mean any of the following: (i) self-dealing, willful misconduct, fraud, misappropriation, embezzlement, dishonesty, or misrepresentation (other than a good faith dispute over an expense account charge that is of an immaterial and insignificant amount); (ii) being charged by governmental authorities with or convicted of a felony; (iii) material failure of Employee to perform his known duties and responsibilities to the Company which persists for more than days after written notice or which recurs (i.e., the same or substantially similar matter which has been cured after written notice from the Company occurs again within the succeeding -month period); (iv) gross negligence which persists for more than days after written notice from the Company or which recurs; (v) any violation of the Company's Code of Business Conduct and Ethics (as it may be amended, restated, or replaced from time to time) which causes, or is likely to cause, a material or significant injury to the Company or which recurs; (vi) violation in any material respect by Employee of any policy, rule, or reasonable direction or regulation of the Company which persists for more than days after written notice or which recurs; (vii) any violation by Employee of the provisions of the Non-Competition and Confidentiality Agreement described in Section IV below; or (viii) any violation by Employee of any material provision of this Agreement (other than the Non-Competition and Confidentiality Agreement) which persists for more than days after written notice or which recurs.

D. Termination without Cause

Company may terminate Employee's employment at any time and for any or no reason (i.e., without Cause) by providing Employee with days prior written notice, which notice the Company can waive, in whole or in part, in its sole discretion, by paying Employee for such time; provided, however, the Company may terminate Employee's employment immediately if there is Cause (as defined in Paragraph C of this Section III), in the event of Employee's Disability (as defined in Paragraph B) and in the event of Employee's death.

E. Termination for Good Reason

Employee may terminate Employee's employment at any time for “Good Reason,” which for purposes of this Agreement shall mean: (i) reduction of Employee's Base Salary, except as agreed to by Employee in accordance with Section 2, Subparagraph A(1); (ii) the assignment to Employee by the Chief Executive Officer or the Board of Directors of duties which represent a material decrease in responsibility and are materially inconsistent with the duties associated with Employee's position, or any material reduction in Employee's job title, or a material negative change in the level of employee to whom Employee reports; (iii) the Company's requiring Employee to be based at any office or location other than in , , or within miles of the metropolitan area; or (iv) any material breach of this Agreement by the Company; provided, however, that Good Reason shall not exist under (i) through (iv) above unless and until Employee provides the Company with written notice of the condition that Employee believes to constitute Good Reason and the Company fails to cure the condition within days after receiving such written notice or such condition recurs.

F. Termination for Other Than Good Reason

Employee may terminate Employee's employment at any time and for other than Good Reason by providing the Company with days' prior written notice, which notice period the Company may waive, in whole or in part, in its sole discretion, by paying Employee for such time.

G. Change of Control and Closing Date

A Change of Control shall be deemed to have occurred upon the earliest to occur of the following dates:

1. The date the stockholders of the Company (or the Board of Directors, if stockholder action is not required) approve a plan or other arrangement pursuant to which the Company will be dissolved or liquidated;

2. The date the stockholders of the Company (or the Board of Directors, if stockholder action is not required) approve a definitive agreement to sell or otherwise dispose of substantially all of the assets of the Company;

3. The date the stockholders of the Company (or the Board of Directors, if stockholder action is not required) and the stockholders of the other constituent corporation (or its board of directors if stockholder action is not required) have approved a definitive agreement to merge or consolidate the Company with or into such other corporation, other than, in either case, a merger or consolidation of the Company in which holders of shares of the Company's Common Stock immediately prior to the merger or consolidation will have at least a majority of the voting power of the surviving corporation's voting securities immediately after the merger or consolidation, which voting securities are to be held in the same proportion as such holders' ownership of Common Stock of the Company immediately before the merger or consolidation; or

4. The date any entity, person or group, within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act (other than: (A) the Company or any of its subsidiaries or any employee benefit plan (or related trust) sponsored or maintained by the Company or any of its subsidiaries, (B) or family members of (all such persons being referred to as “”), (C) any entity a majority of the equity in which is owned by , or (D) any trust as to which a majority of the beneficiaries are ), shall have become the beneficial owner of, or shall have obtained voting control over, more than 50% of the outstanding shares of the Company's common stock. As used in this Agreement, the term Closing Date means the date, if any, on which a transaction that is treated as a Change of Control is consummated.

H. Non-Competition and Confidentiality Agreement

Termination of Employee's employment either by Employee or the Company, whether with or without Cause, and whether or not due to Employee's death or Disability, shall not release Employee from Employee's obligations and restrictions under the Non-Competition and Confidentiality Agreement referred to in Section Four below except to the extent specifically provided in that agreement.

IV. Non-Competition and Confidentiality

The terms of this Agreement are contingent upon Employee's execution of a Non-Competition and Confidentiality Agreement in the form attached to this Agreement as Exhibit B. Employee's failure to execute the Non-Competition and Confidentiality Agreement on or before this Agreement's Effective Date will invalidate this Agreement.

V. Miscellaneous

A. Special Tax Provision; Section 280G

1. Anything in this Agreement to the contrary notwithstanding and except as set forth below, if it shall be determined that any payment or distribution by the Company to or for the benefit of Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Paragraph A) (a Payment) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any Interest or Penalties (as defined below) are incurred by Employee with respect to such excise tax (such excise tax, together with any such Interest or Penalties, are collectively referred to as the Excise Tax), then Employee shall be entitled to receive an additional payment (a Gross-Up Payment) in an amount such that after payment by Employee of all taxes (including any Interest or Penalties imposed with respect to such taxes), including, but not limited to, any income taxes (and any Interest or Penalties imposed with respect to such taxes) and Excise Tax imposed upon the Gross-Up Payment, Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Subparagraph 1, if it shall be determined that Employee is entitled to a Gross-Up Payment, but that the Payments do not exceed 110% of the greatest amount (the Reduced Amount) that could be paid to Employee such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to Employee and the Payments, in the aggregate, shall be reduced to the Reduced Amount. For purposes of this Agreement, the term Interest or Penalties refers only to amounts of interest or penalties imposed under applicable provisions of the Internal Revenue Code with respect to excise taxes imposed on Employee pursuant to Section 4999 of the Code, and only to the extent such amounts of interest or penalties are attributable to errors in calculation of amounts considered to be, or potentially considered to be excess parachute payments (as that term is used for purposes of Section 280G of the Internal Revenue Code) or are attributable to the Company's determination to contest claims or assessments of such excise taxes by the Internal Revenue Service.

2. All determinations required to be made under this Paragraph A, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be use in arriving at such determination, shall be made by such certified public accounting firm as may be designated by the Company (the Accounting Firm) which shall provide detailed supporting calculations both to the Company and Employee within business days of the receipt of notice from Employee that there has been a Payment requiring a Gross-Up Payment, or such earlier time as is requested by the Company. If the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control or the Accounting Firm refuses to make the required determinations, the Company shall appoint another nationally recognized accounting firm to make the determinations required under this Agreement (which accounting firm shall then be referred to as the Accounting Firm under this Agreement). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Paragraph G, shall be paid by the Company to Employee within days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Company and Employee, absent manifest error. As a result of the uncertainty in the application of Section 4999 of the Internal Revenue Code at the time of the initial determination by the Accounting Firm under this Agreement, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (Underpayment), consistent with the calculations required to be made under this Agreement. If the Company exhausts its remedies pursuant to Subparagraph 3 below and Employee subsequently is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Employee.

3. Employee shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than business days after Employee is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Employee shall not pay such claim prior to the expiration of the -day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Employee in writing prior to the expiration of such period that it desires to contest such claim, Employee shall:

a. Give the Company any information reasonably requested by the Company relating to such claim;

b. Take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including but not limited to accepting legal representation with respect to such claim by an attorney reasonably selected by the Company;

c. Cooperate with the Company in good faith in order effectively to contest such claim; and

d. Permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional Interest or Penalties) incurred in connection with such contest and shall indemnify and hold Employee harmless, on an after-tax basis, for any Excise Tax or additional income tax (including Interest or Penalties with respect to such tax) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Paragraph A, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Employee to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs Employee to pay such claim and sue for a refund, the Company shall, to the extent permitted by law, advance the amount of such payment to Employee, on an interest-free basis and shall indemnify and hold Employee harmless, on an after-tax basis, from any Excise Tax or income tax (including Interest or Penalties with respect to such tax) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of Employee with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable under this Agreement and Employee shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.

4. If, after the receipt by Employee of an amount advanced by the Company pursuant to Subparagraph 3 above, Employee becomes entitled to receive any refund with respect to such claim, Employee shall (subject to the Company's complying with the requirements of Subparagraph 3) promptly pay to the Company the amount of such refund (together with any interest paid or credited on such refund after taxes applicable to the same). If, after the receipt by Employee of an amount advanced by the Company pursuant to Subparagraph 3, a determination is made that Employee shall not be entitled to any refund with respect to such claim and the Company does not notify Employee in writing of its intent to contest such denial of refund prior to the expiration of days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent of such advance, the amount of Gross-Up Payment required to be paid.

5. Notwithstanding anything in this Paragraph G to the contrary, all amounts payable to Employee as a Payment shall be paid as soon as practicable following the determination of the amount required to be paid to Employee, and in no event later than the end of the calendar year following the calendar year in which Employee pays the taxes subject to the “gross-up” provision. This Subparagraph 5 is intended to require a time and manner of payment for Payments that is consistent with the requirements for treatment of such payments as payable at a specified time for purposes of Code Section 409A, as such requirements are set forth in Treasury Regulation Section 1.409A-3(i)(1)(v) and shall in all cases be interpreted consistent with such requirements, or any successor provisions or guidance regarding compliance with Section 409A of the Internal Revenue Code.

B. Special Provisions if Covered Employee Status Remains Effective After Termination of Employment.

Notwithstanding anything to the contrary contained in this Agreement, if Employee is treated as a “covered employee” (as that term is used for purposes of Section 162(m) of the Internal Revenue Code) after his termination of employment with the Company, then severance and other payments otherwise payable under this Agreement for any taxable year of the Company shall be limited to the extent that such payments would not be deductible by the Company by reason of Section 162(m) of the Internal Revenue Code, and, to the extent so limited, shall be paid in succeeding taxable years (up to the maximum permitted to be deducted under Section 162(m) of the Internal Revenue Code) until all amounts required to be paid under this Agreement have been paid; except that no amounts shall be deferred longer than the end of the third taxable year following the taxable year in which Employee's termination occurred so that the Company shall pay out any unpaid balance in the third taxable year following Employee's termination even if the third taxable year's payment exceeds the maximum amount permitted to be deducted under Section 162(m) of the Internal Revenue Code. If payments are deferred on this basis, payments shall continue over a period of equal monthly installments (except that any additional payments required to be made in the third taxable year following Employee's termination shall be added to and paid out along with the twelfth and final equal monthly installment for such third taxable year) and are intended to constitute a fixed time and manner of payment consistent with the requirements of Section 409A of the Internal Revenue Code. Payments made on a deferred basis by reason of Paragraph D of this Section V shall be increased, in the aggregate, so that later payment of amounts due include amounts that represent (simple) interest or earnings, determined by reference to the lesser of the prime rate (as published from time to time in the Money Rates section of the Wall Street Journal) or %.

C. Special Rules Regarding Section 409A of the Internal Revenue Code.

Notwithstanding anything in this Agreement to the contrary, if any payments or benefits required to be provided under this Agreement are deemed to constitute payments of nonqualified deferred compensation that is subject to the requirements of Section 409A of the Internal Revenue Code, then the time and manner in which such payment or benefit is provided shall be adjusted, to the extent reasonably possible, so that payment or distribution is made at a time and in a manner that is consistent with the requirements of such Section 409A (and applicable proposed or final Treasury regulations or other guidance issued or to be issued by the Internal Revenue Service). This Paragraph C may, for example, require that certain payments to Employee following his termination of employment be delayed until the date that is six months after the date of his separation from service with the Company if at the time of such termination of employment Employee was a specified employee (as that term is used for purposes of Section 409A(2)(B)(i)). All other payments and taxable benefits shall be made available or distributed to Employee at such times as provided by the applicable provisions of this Agreement. If any payments are delayed as required by this Paragraph C, those payments shall be made in a single lump sum with interest, at the lesser of the prime rate (as published from time to time in the Money Rates section of the Wall Street Journal) or %. In addition, to the extent any payments made by reason of Employee's termination of employment are considered payable under a nonqualified deferred compensation plan that is subject to Internal Revenue Code Section 409A, any reference to termination of employment shall be interpreted to mean a separation from service as defined in Treasury Regulations applicable under Internal Revenue Code Section 409A. To the extent any reimbursements or in-kind benefits due to Employee under this Agreement constitute deferred compensation under Internal Revenue Code Section 409A, any such reimbursements or in-kind benefits shall be paid to Employee in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). Each payment made under this Agreement shall be designated as a “separate payment” within the meaning of Internal Revenue Code Section 409A. The Company shall consult with Employee in good faith regarding the implementation of the provisions of this Paragraph C.

D. Payment Dates and Payments

Company shall be deemed to have complied with the payment dates referenced in this Agreement if the Company pays Employee on the payroll pay date that corresponds to the pay period during which the relevant payment date falls. All payments under this Agreement shall be subject to applicable withholdings and taxes.

E. Recognized Bonus; Outstanding Options and Restricted Stock.

Company confirms that all bonus income, whether received before, on or after, the date of this Agreement, and regardless of whether such bonus income is Incentive Bonus, Additional Bonus or any other bonus amounts and whether deferred or not or elected to be in a non-cash form shall be considered Recognized Bonus for purposes of the Company's SERP.

F. Severability

The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision.

G. No Waiver

The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

H. Governing Law

This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of .

I. Notices

Any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement.

J. Mandatory Arbitration

Any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

K. Entire Agreement

This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement.

L. Modification of Agreement

Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party.

M. Assignment of Rights

The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party.

N. Counterparts

This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.

O. In this Agreement, any reference to a party includes that party's heirs, executors, administrators, successors and assigns, singular includes plural and masculine includes feminine.

WITNESS our signatures as of the day and date first above stated.