Reduction of Certain Payments. For purposes of this Section 4.4: # “Excise Tax” shall mean, collectively, the excise tax imposed under Section 4999 of the Code, any similar tax imposed by state or local law, and any interest or penalties with respect to such taxes; # “Net Benefit” shall mean the Present Value of the Payments net of all federal, state, local, foreign income, employment and excise taxes other than the Excise Tax; # a “Payment” shall mean any payment or distribution in the nature of compensation to or for the benefit of the Participant, whether paid or payable pursuant to this Plan or otherwise; # “Plan Payment” shall mean a Payment paid or payable pursuant to this Plan (disregarding this Section 4.4); # “Present Value” shall mean such value determined in accordance with [Sections 280G(b)(2)(A)(ii) and 280G(d)(4)])] of the Code; and # “Reduced Amount” shall mean an amount expressed in Present Value that maximizes the aggregate Present Value of Plan Payments without causing any Payment to be an “excess parachute payment” (within the meaning of Section 280G(b) of the Code).

Payments and Benefits. If, during the Term, the Employee either # experiences an involuntary Termination of Employment by the Company without Cause during the Post-Change in Control Period, or # voluntarily resigns effecting a Termination of Employment for Good Reason during the Post-Change in Control Period, or # voluntarily resigns effecting a Termination of Employment without Good Reason during the Post-Change in Control Window Period (each, a “Qualifying Termination of Employment”), then the Employee will be entitled to:

Termination Payments/Benefits. In the event that your employment terminates under paragraph 11(a) or (b), you shall thereafter receive the compensation and benefits described below and the following shall apply:

Termination, Disability or Retirement: On a Participant's entitlement to payment of benefits under either Section 6.1, 6.2, or 6.4, he shall file with the Committee his written election on such form or forms, and subject to such conditions as the Committee shall provide. His election shall specify whether he wishes payments of his benefits to be made as of such entitlement or to be deferred to the extent provided below. If payments become due for any reason other than Retirement, death or Disability, and if the amounts due from the Participant's Accounts are in excess of $1,000 ($5,000 before March 28, 2005), payment of such amounts shall be deferred to the extent provided below unless the Participant, and his spouse, if applicable, consent to earlier payment. Effective January 1, 2002, a contribution to a Rollover Account (and earnings allocable thereto) within the meaning of [sections 402(c), 403(a)(4), 403(b)(8), 408(d)(3)(A)(ii), and 457(e)(16)])])])])] of the Code shall not be counted in determining whether the amounts due from the Participant's Accounts exceeds the $5,000 threshold, but shall be counted in determining the $1,000 threshold.

Payments and Benefits. Pursuant to the terms of the Employment Agreement, Executive shall receive the following payments and benefits, in each case where appropriate less amounts as may be required to be deducted for the payment of federal and state taxes and other appropriate withholdings and deductions:

rata basis of any cash severance payments that are exempt from Section 409A of the Code, # reduction on a pro-rata basis of any non-cash severance payments or benefits that are exempt from Section 409A of the Code, # reduction on a pro-rata basis of any other payments or benefits that are exempt from Section 409A of the Code, and # reduction of any payments or benefits otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code; provided, in case of subclauses [(ii), (iii) and (iv)])], that reduction of any payments attributable to the acceleration of vesting of Company equity awards shall be first applied to Company equity awards that would otherwise vest last in time.

Forfeiture; Possible Restoration. If Recipient ceases to be a director of the Company for any reason or for no reason, with or without cause, other than because of death or physical disability (within the meaning of Section 22(e)(3) of the Code), any RSUs that did not vest pursuant to this Section 2 at or prior to the time of such termination of board service shall be forfeited to the Company.

If the payments and benefits pursuant to Section 5 hereof, either alone or together with other payments and benefits which the Executive has the right to receive from the Employer, would constitute a “parachute payment” under Section 280G of the Code, then the payments and benefits payable by the Employer pursuant to Section 5 hereof shall be reduced by the minimum amount necessary to result in no portion of the payments and benefits payable by the Employer under Section 5 being non-deductible to the Employer pursuant to Section 280G of the Code and subject to the excise tax imposed under Section 4999 of the Code. If the payments and benefits under Section 5 are required to be reduced, the cash severance shall be reduced first, followed by a reduction in the fringe benefits. The determination of any reduction in the payments and benefits to be made pursuant to Section 5 shall be based upon the opinion of independent tax counsel selected by the Employer and paid by the Employer. Such counsel shall promptly prepare the foregoing opinion, but in no event later than thirty (30) days from the Date of Termination, and may use such actuaries as such counsel deems necessary or advisable for the purpose. Nothing contained in this Section 5 shall result in a reduction of any payments or benefits to which the Executive may be entitled upon termination of employment under any circumstances other than as specified in this Section 5, or a reduction in the payments and benefits specified in Section 5 below zero.

Other Payments and Benefits. In the event the employment of the Employee terminates after the occurrence of a Change of Control, Employee shall continue to be entitled to receive the payments and benefits provided subsequent to the applicable event of Termination pursuant to Section 7.

Exceptions to Apply. The Company shall apply the exceptions provided in Treasury Regulation Section 1.409A-1(b)(4), Treasury Regulation Section 1.409A-1(b)(9) and all other applicable exceptions or provisions of Code Section 409A to the payments and benefits provided under this Agreement so that, to the maximum extent possible, such payments and benefits are not deemed to be “nonqualified deferred compensation” subject to Code Section 409A. All payments and benefits provided under this Agreement shall be deemed to be separate payments (and any payments made in installments shall be deemed a series of separate payments) for purposes of Code Section 409A.