Notwithstanding the foregoing, to the extent that this Award constitutes a deferral of compensation subject to Code Section 409A, then no Change in Control shall be deemed to have occurred upon an event described in this Section 3(c) unless the event would also constitute a change in ownership or effective control of, or a change in the ownership of a substantial portion of the assets of, the Company under Code Section 409A.

Notwithstanding the definition of Change in Control Event set forth in this [Section 2.1(h)], if a Change in Control Event occurs and such event does not constitute a “change in ownership,” “change in effective control,” or “change in the ownership of a substantial portion of the assets” of the Company within the meaning of Section 409A of the Code, Employees shall vest in their Plan benefits as provided in Section 3.8, but such event shall not be treated as a Benefit Trigger.

Notwithstanding the definition set forth in the Plan, for purposes of this Award, “Change in Control” means a change in the ownership or effective control of the Company or the Affiliate that employs you, or in the ownership of a substantial portion of the assets of the Company or the Affiliate that employs you within the meaning of Treasury Regulation Section 1.409A-3(i)(5) as determined by the Company.

Change in Effective Control of the Company. If the Company has a class of securities registered pursuant to Section 12 of the Exchange Act, a change in the effective control of the Company which occurs on the date that a majority of members of the Board is replaced during any twelve (12) month period by Directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election. For purposes of this [subsection (b)], if any Person is considered to be in effective control of the Company, the acquisition of additional control of the Company by the same Person will not be considered a Change in Control; or # Change in Ownership of a Substantial Portion of the Company’s Assets. A change in the ownership of a substantial portion of the Company’s assets which occurs on the date that any Person acquires (or has acquired during the twelve (12) month period ending on the date of the most recent acquisition by such Person or Persons) assets from the Company that have a total gross fair market value equal to or more than fifty percent (50%) of the total gross fair market value of all of the assets of the Company immediately prior to such acquisition or acquisitions; provided, however, that for purposes of this [subsection (c)], the following will not constitute a change in the ownership of a substantial portion of the Company’s assets: # a transfer to an entity that is controlled by the Company’s stockholders immediately after the transfer, or # a transfer of assets by the Company to: # a stockholder of the Company (immediately before the asset transfer) in exchange for or with respect to the Company’s stock, # an entity, fifty percent (50%) or more of the total value or voting power of which is owned, directly or indirectly, by the Company, # a Person, that owns, directly or indirectly, fifty percent (50%) or more of the total value or voting power of all the outstanding stock of the Company, or # an entity, at least fifty percent (50%) of the total value or voting power of which is owned, directly or indirectly, by a Person described in this [subsection (c)(ii)(C)]. For purposes of this [subsection (c)], gross fair market value means the value of the assets of the Company, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets.

provided, however, that notwithstanding anything to the contrary in [subsections (1) through (4)] above, an event which does not constitute a change in the ownership of the Affected Corporation, a change in the effective control of the Affected Corporation, or a change in the ownership of a substantial portion of the assets of the Affected Corporation, each as defined in Treasury Regulations [section 1.409A-3(i)(5)])] (or any successor provision), shall not be considered a Change in Control for purposes of this Plan.

Licensee liquidates a substantial portion of its business or engages in a distress sale of substantially all of its assets;

“Change in Control” shall mean a change in the ownership of a substantial portion of the assets of Employer such that any one Person, or more than one Person acting as a group (as determined under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the Department of Treasury regulations thereunder) (Code Section 409A, together with any Department of Treasury regulations and other interpretive guidance issued thereunder, including, without limitation, any such regulations or other guidance that may be issued after the date hereof, “[Section 409A]”), acquires (or has acquired during the twelve-month period ending on the date of the most recent acquisition by such Person or Persons) assets from Employer that have a total gross fair market value equal to or more than 80% of the total gross fair market value of all of the assets of Employer immediately before such acquisition or acquisitions; or # a change in the effective control of Employer such that any one Person, or more

Notwithstanding the foregoing, # a Change in Control shall not be deemed to have occurred by virtue of the consummation of any transaction or series of integrated transactions immediately following which the holders of Common Stock immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in an entity which owns all or substantially all of the assets of the Company immediately following such transaction or series of transactions and # to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, a Change in Control shall be deemed to have occurred under the Plan with respect to any Award that constitutes deferred compensation under Section 409A of the Code only if a change in the ownership or effective control of the Company or a change in ownership of a substantial portion of the assets of the Company shall also be deemed to have occurred under Section 409A of the Code. For purposes of this definition of Change in Control, the term “Person” shall not include # the Company or any Subsidiary thereof, # a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any Subsidiary thereof, # an underwriter temporarily holding securities pursuant to an offering of such securities, or # a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of shares of the Company.

[Section 280G] Golden Parachute. If, in the good faith determination of the Company’s independent certified public accountants (the “Accountants”), the Employee may be obligated to satisfy taxes (“Excise Taxes”) under [Sections 280G] and/or 4999 of the Code with respect to the Severance Benefit, the Pro-Rata Bonus, the Benefit Continuation and/or any other payments or benefits to the Employee in the nature of compensation that are contingent on a change in ownership or effective control of FUSB or the Bank or in the ownership of a substantial portion of the assets of FUSB or the Bank (the “Aggregate Severance”), then the Aggregate Severance shall be either # provided in full pursuant to the terms of this Agreement and any other applicable agreement, or # provided as to such lesser extent which would result in no portion of such Aggregate Severance being subject to the Excise Taxes (“Reduced Amount”), whichever of the foregoing amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Taxes (including, without limitation, any interest or penalties on such taxes), results in the receipt by the Employee, on an after-tax basis, of the greatest amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of

“Change of Asset Ownership” means the date one person (or group) acquires (or has acquired during the preceding 12 months ending on the date of the most recent acquisition) assets from the Company that have a total gross fair market value that is equal to or exceeds 40% of the total gross fair market value of all the Company’s assets immediately prior to such acquisition.