Amendmentto Employment Agreement

however, that in the event of any such termination pursuant to Section 5(b), Section 5(c), Section 5(e) or Section 5(f) or by virtue of the expiration of the Agreement on December 31, 2015 between December 31 of a particular year and a potential vesting date with respect to the Performance Vesting 2010 Grant (i.e., March 15 of the following year), any unvested portion of the Performance Vesting 2010 Grant will not be forfeited unless and until the determination has been made by such March 15 (in accordance with the vesting provisions applicable to such unvested portion) that any unvested portion of the Performance Vesting 2010 Grant does not vest on such March 15 (and, to the extent that such unvested portion of the Performance Vesting 2010 Grant does not vest on such March 15, such vested portion shall be forfeited).

(ii)           For purposes of this Section 4(d) and the Performance Vesting 2010 Grant, “Adjusted EBITDA” shall mean earnings before interest, taxes, depreciation and amortization of the Company and its subsidiaries on a consolidated basis determined by the Compensation Committee, in a manner consistent with any determination of this or any similar metric applicable for awards or bonuses to other senior executives of the Company or for purposes of the Company’s Management Incentive Compensation Program (“MICP”) generally, adjusted (without duplication) (x) to add back to Adjusted EBITDA in each fiscal year an amount reflected in “equity in earnings of joint ventures” on the Company’s consolidated statement of operations for such year attributable to the amortization by Lotterie Nazionali S.r.l. of upfront payments associated with the tender process for the concession awarded in May 2010 by the Monopoli di Stato to operate the Gratta e Vinci instant ticket lottery in Italy and (y) to exclude from Adjusted EBITDA in each fiscal year except 2015 any “pro forma adjustment” to the extent such “pro forma adjustment” might otherwise have been included in the calculation of Adjusted EBITDA to reflect projected cost savings or additional costs in connection with the combination of any business or assets acquired pursuant to a “Material Acquisition” (as such term is defined as of December 1, 2010 in the Company’s credit agreement) with the operations of the Company, as further adjusted at the discretion of the Compensation Committee or the Board, including any adjustments to this or any similar metric made for MICP purposes.

(iii)          Vesting of the Performance Vesting 2010 Option Grant and the Performance Vesting 2010 RSU Grant shall be subject to the Adjusted EBITDA being equal to or greater than the levels set forth below (the “Adjusted EBITDA Targets”):

·                              For 2011:                $315 million

·                              For 2012:                $354 million

·                              For 2013:                $399 million

·                              For 2014:                $448 million

·                              For 2015:                $504 million

Stock options included in the Performance Vesting 2010 Grant shall vest and become exercisable, and RSUs included in the Performance Vesting 2010 Grant shall vest at the rate of 20% per year if, as and when the Adjusted EBITDA for a particular year equals or exceeds the Adjusted EBITDA Target applicable for such year (as indicated above), with the actual vesting date to be March 15 of the following year (assuming such Adjusted EBITDA Target is met).  In each case, unvested portions of the Performance Vesting 2010 Grant will carry forward to following years and will vest if, as and when future Adjusted EBITDA Targets are achieved, as provided below.  If the Adjusted EBITDA Target for any particular 20% increment is first achieved in a year later

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than the year specified above, but the higher Adjusted EBITDA Target for that later year is not achieved, then one-half of the earlier 20% increment will vest, and the remainder of that earlier 20% increment will vest in the first subsequent year (if any) for which the entire specified Adjusted EBITDA Target for such subsequent year is fully achieved.  For example, if Adjusted EBITDA of $315 million were first achieved in 2012 rather than 2011 but Adjusted EBITDA of $354 million were not achieved as targeted in 2012, one-half of the first 20% of the total award (i.e., 10%) would vest, while the other half of that first 20% increment, and the second 20% increment, would not vest.  However, if Adjusted EBITDA of $354 million were achieved as targeted in 2012, both the first and second 20% increments, or a total of 40% of the total award, would vest.  Finally, for 2015 only, any remaining unvested percentage increments from prior years (but not the last 20% increment) will vest to the extent that the Adjusted EBITDA Targets for such prior years are achieved in 2015, whether or not the Adjusted EBITDA Target for 2015 itself is achieved.  For example, if the Adjusted EBITDA Target of $448 million for 2014 is first achieved in 2015, but the Adjusted EBITDA Target of $504 million for 2015 is not achieved, then any remaining unvested percentage increments based on Adjusted EBITDA Targets of $448 million or less, for a cumulative total of 80%, will vest, and the last 20% increment will remain unvested.  If the Adjusted EBITDA Target of $399 million for 2013 is achieved in 2015, but neither the Adjusted EBITDA Target of $448 million for 2014 nor the Adjusted EBITDA Target of $504 million for 2015 is achieved in 2015, then any remaining unvested percentage increments based on Adjusted EBITDA Targets of $399 million or less, for a cumulative total of 60%, will vest, and the last 40% increment will remain unvested.

(iv)          In the event that the aggregate consideration paid by the Company (which for purposes of this Section 4(d) shall include consideration in whatever form and include any contingent consideration assuming that such contingent consideration has been paid) in connection with new Investments (as currently defined as of December 1, 2010 in the Company’s credit agreement) consummated in 2011 or any subsequent year does not exceed an annual rate of $75 million per year, the incremental Adjusted EBITDA generated by the Company as a result of the consummation of such Investments will be counted in full toward achievement of Adjusted EBITDA Targets, without duplication.  For example, if the Company acquires Company A for $75 million as a result of which the Company generates $25 million of incremental Adjusted EBITDA, the full $25 million of incremental Adjusted EBITDA would count toward achievement of Adjusted EBITDA Targets.  In the event that the aggregate consideration paid by the Company for new Investments consummated in any calendar year after 2010 is less than or equal to (A) in 2011, $75 million, or (B) in any subsequent year, the sum of $75 million plus the excess (if any) of (x) the product of $75 million multiplied by the number of full calendar years that have elapsed from and including 2011 over (y) the cumulative aggregate consideration paid by the Company for new Investments consummated in and after 2011 (the “Acquisition Threshold”), the Investments in such year shall be subject to this clause (iv).  In the event that the aggregate consideration paid by the Company for new Investments consummated in any calendar year after 2010 exceeds the Acquisition Threshold applicable to such year, Investments in such year shall be subject to clause (v) below.  For example, if the Company makes Investments in 2011 for $65 million, then incremental Adjusted EBITDA generated by the Company as a result of the consummation of Investments in 2012 for aggregate consideration of up to $85 million would count toward achievement of Adjusted EBITDA Targets.

(v)           In the event that the aggregate consideration paid by the Company in connection with new Investments in 2011 or any subsequent year exceeds the Acquisition Threshold applicable for such year, then for purposes of determining the achievement of Adjusted EBITDA Targets, the Adjusted EBITDA of the Company, which will include the incremental Adjusted EBITDA generated by the Company as a result of the consummation of any such

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Investments, shall be reduced during each applicable year (including the year in which each such Investment was consummated) by: (A) the interest cost (“Cost of Debt”) for such year on proceeds of debt of the Company or its subsidiaries incurred or deemed used to make each such Investment (“Acquisition Debt”); provided, however, that, in any year subsequent to the year such Investment was consummated, the principal amount of such Acquisition Debt shall be deemed to be repaid and to the extent deemed to have been so repaid in part in any prior year or years shall be deemed to be further repaid (and, accordingly, such Cost of Debt will be appropriately reduced) in an amount equal to the deemed free cash flow of the business subject to or comprising (in whole or in part) such Investment (with such deemed free cash flow being defined as (x) the earnings before interest, taxes, depreciation and amortization of the business subject to or comprising (in whole or in part) such Investment for the last four complete fiscal quarters prior to the consummation of such Investment (“Target EBITDA”), less (y) the Cost of Debt for such Investment in the immediately preceding year, less (z) an amount equal to the aggregate Capital Expenditures (as such term is defined as of December 1, 2010 in the Company’s credit agreement, without regard to the proviso therein) of such business during the last four complete fiscal quarters prior to the consummation of such Investment, subject to appropriate adjustment in the reasonable discretion of the Compensation Committee to the extent that the amount thereof varies materially from the historical rate of Capital Expenditures of such business); (B) a “deemed” annual interest cost on equity used as consideration to make such Investment (“Cost of Equity”) as reasonably determined by the Compensation Committee; and (C) an amount equal to the aggregate Capital Expenditures of such business during the last four complete fiscal quarters prior to the consummation of such Investment (“Acquisition Capital Expenditures”).  For purposes of this Section 4(d)(v), Cost of Debt shall be (1) in the case of an Investment financed, in whole or in material part, from the proceeds of new indebtedness incurred for such purpose, an amount equal to the cash consideration in such Investment multiplied by the stated interest rate on such indebtedness, and (2) otherwise, an amount equal to such cash consideration multiplied by the weighted average interest rate for all of the indebtedness of the Company and its consolidated subsidiaries from time to time.  For example, if the Company makes an Investment for $100 million (including $60 million of Acquisition Debt and $40 million of equity consideration) to acquire a business which generated $25 million of Target EBITDA, but the Cost of Debt for such year is $3 million, the Cost of Equity used as consideration for such year is $2 million, and the aggregate amount of Capital Expenditures are $5 million, then the Target EBITDA counted toward achievement of Adjusted EBITDA Targets would be reduced by $10 million (i.e., $3 million plus $2 million plus $5 million), but in that year $17 million of deemed free cash flow (i.e., Target EBITDA of $25 million less $3 million Cost of Debt less $5 million of Capital Expenditures) will be deemed to have been applied to repay the Acquisition Debt, so that in the following year the deemed Cost of Debt shall be appropriately reduced.  For example, if the Acquisition Debt were $60 million, bearing interest at 5%, such deemed repayment of $17 million would reduce such $60 million of Acquisition Debt to $43 million, and for the following year the Cost of Debt would be $2.15 million (i.e., 5% of $43 million), and if deemed free cash flow in the following year were $20 million, the Acquisition Debt would then be further reduced to $23 million.

(vi)          Notwithstanding anything contained in this Agreement or in any Equity Agreement to the contrary, (A) the stock options comprising the Performance Vesting 2010 Option Grant shall not be exercisable except to the extent that sufficient shares (as reasonably determined by the Compensation Committee in light of outstanding awards) are available under the applicable Equity Plan for the delivery of the shares issuable upon exercise of such stock options and (B) the RSUs comprising the Performance Vesting 2010 Grant shall be forfeited to the extent that sufficient shares (as reasonably determined by the Compensation Committee in

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light of outstanding awards) are not available under the applicable Equity Plan for the delivery of the shares subject to such RSUs on the scheduled delivery date(s).

(vii)         All stock options and RSUs included in the Time Vesting 2010 Grant shall vest immediately upon any Change in Control (as defined in Section 5(f) hereof).

(viii)        In the event and to the extent that sufficient shares (as reasonably determined by the Compensation Committee in light of outstanding awards) are not available under the applicable Equity Plan for the delivery of the shares issuable upon exercise of the Later Time Vesting Options at the time of exercise of such Later Time Vesting Options, then the Company shall elect to settle such exercise in an immediate lump sum cash payment.  In the event and to the extent that sufficient shares (as reasonably determined by the Compensation Committee in light of outstanding awards) are not available under the applicable Equity Plan for the delivery of the shares subject to RSUs with respect to the Later Time Vesting RSUs on the scheduled delivery date(s), then the Company shall settle such delivery in an immediate lump sum cash payment.”

5.             Amendments to Section 5 of the Agreement.  Section 5 of the Agreement is hereby amended and restated in its entirety as follows:

“5.           Termination of Employment.  Executive’s employment may be terminated at any time prior to the end of the Term under the terms described in this Section 5.

(a)           Termination by Executive for Other than Good Reason.  Executive may terminate Executive’s employment hereunder for any reason or no reason upon 60 days’ prior written notice to the Company referring to this Section 5(a); provided, however, that a termination by Executive for “Good Reason” (as defined below) shall not constitute a termination by Executive for other than Good Reason pursuant to this Section 5(a).  In the event Executive terminates Executive’s employment for other than Good Reason, Executive shall be entitled only to the following compensation and benefits (collectively, the “Standard Termination Payments”):

(i)            any accrued but unpaid Base Salary for services rendered by Executive to the date of such termination, payable in accordance with the Company’s regular payroll practices and subject to such deductions or amounts to be withheld as required by applicable law and regulations or as may be agreed to by Executive;

(ii)           all vested non-forfeitable amounts owing or accrued at the date of such termination under benefit plans, programs and arrangements set forth or referred to in Section 4(g) hereof in which Executive theretofore participated will be paid under the terms and conditions of such plans, programs, and arrangements (and agreements and documents thereunder) (except with respect to the payments contemplated by Section 11 of the May 2008 Amendment, the payment of which will be governed by Section 11 of the May 2008 Amendment);

(iii)          except as provided in Section 6.6 hereof, all stock options, RSUs and other equity-based awards will be governed by the terms of the plans and programs under which such stock options, RSUs or other awards were granted; provided, however,

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that subject to Section 6.6 hereof, all RSUs that were granted in 2010 to Executive prior to December 2, 2010 that remain unvested at such termination will become fully vested and non-forfeitable; and

(iv)          reasonable business expenses and disbursements incurred by Executive prior to such termination will be reimbursed in accordance with Section 4(e) hereof.

(b)           Termination By Reason of Death.  If Executive dies during the Term, the last beneficiary designated by Executive by written notice to the Company (or, in the absence of such designation, Executive’s estate) shall be entitled to the following compensation and benefits:

(i)            the Standard Termination Payments; and

(ii)           a lump sum payment equal to Executive’s Base Salary, payable within 30 days of death.

(c)           Termination By Reason of Total Disability.  The Company may terminate Executive’s employment in the event of Executive’s “Total Disability.”  For purposes of this Agreement, “Total Disability” shall mean Executive (i) becoming eligible to receive benefits under any long-term disability insurance program of the Company or (ii) failure to perform the duties and responsibilities contemplated under this Agreement for a period of more than 180 days during any consecutive 12-month period due to physical or mental incapacity or impairment as determined by a physician or physicians selected by the Company and reasonably acceptable to Executive, unless, within 30 days after Executive has received written notice from the Company of a proposed termination due to such failure (as determined in accordance with the foregoing provisions of this sentence), which notice shall include a copy of the findings of such physician or physicians and shall refer to this Section 5(c), Executive shall have returned to the full performance of his duties hereunder and shall have presented to the Company a written certificate of Executive’s good health by a physician selected by Executive and reasonably acceptable to the Company.  In the event that Executive’s employment is terminated by the Company by reason of Total Disability, the Company shall pay the following amounts, and make the following other benefits available, to Executive:

(i)            the Standard Termination Payments;

(ii)           an amount equal to the sum of (A) Executive’s Base Salary and (B) Executive’s “Severance Bonus Amount” (as defined below), payable over a period of twelve (12) months after such termination in accordance with Section 5(g) of this Agreement; provided such amount shall be reduced by any disability payments provided to Executive as a result of any disability plan sponsored or maintained by the Company or its affiliates providing benefits to Executive.  For purposes of this Agreement, “Severance Bonus Amount” shall mean an amount equal to the highest annual Incentive Compensation paid to Executive in respect

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of the two (2) most recent fiscal years of the Company but not more than Executive’s Target Bonus for the-then current fiscal year;

(iii)          no later than March 15 following the end of the year in which such termination pursuant to this Section 5(c) occurs, in lieu of any Incentive Compensation for the year in which such termination occurs, payment of a lump sum amount equal to (A) the Incentive Compensation which would have been payable to Executive had Executive remained in employment with the Company during the entire year in which such termination occurred, multiplied by (B) a fraction the numerator of which is the number of days Executive was employed in the year in which such termination occurs and the denominator of which is the total number of days in the year in which such termination occurs;

(iv)          if Executive elects to continue medical coverage under the Company’s group health plan in accordance with COBRA, the Company shall pay the monthly premiums for such coverage for a period of twelve (12) months.

(d)           Termination by the Company for Cause.  The Company may terminate the employment of Executive at any time for “Cause.”  For purposes of this Agreement, “Cause” shall mean: (i) gross neglect by Executive of Executive’s duties hereunder; (ii) Executive’s conviction (including conviction on a nolo contendere plea) of a felony or any non-felony crime or offense involving the property of the Company or any of its subsidiaries or affiliates or evidencing moral turpitude; (iii) willful misconduct by Executive in connection with the performance of Executive’s duties hereunder; (iv) intentional breach by Executive of any material provision of this Agreement; (v) material violation by Executive of a material provision of the Company’s Code of Conduct; or (vi) any other willful or grossly negligent conduct of Executive that would make the continued employment of Executive by the Company materially prejudicial to the best interests of the Company.  In the event Executive’s employment is terminated for Cause, Executive shall not be entitled to receive any compensation or benefits under this Agreement except for the Standard Termination Payments (excluding the benefits described in the proviso in Section 5(a)(iii)).  For purposes of this Agreement, an act or failure to act on Executive’s part shall be considered “willful” if it was done or omitted to be done by Executive knowingly, purposefully and not in good faith.

Executive may not be terminated for Cause unless and until there shall have been delivered to him, within ninety (90) days after the Company first had actual knowledge of the most recent conduct or event comprising an element of the alleged ground for termination for Cause (it not being necessary that all elements comprising the alleged ground for termination for Cause have occurred within such ninety (90) day period), a copy of a resolution duly adopted by the Board by a vote of directors constituting a majority of the Board (excluding Executive) at a meeting of the Board at which a quorum is physically present in person and which is called and held for such purpose (after giving Executive reasonable notice of the specific grounds for such termination including a reasonably detailed statement of the facts and circumstances claimed as the basis for such termination and, except if a felony conviction is the grounds for termination, thirty (30) days to correct such grounds, and affording Executive and his counsel the opportunity to be heard before the Board) finding that, in the good faith opinion of the Board, Executive was guilty of conduct constituting Cause (the “Cause Resolution”).  The Company’s delivery of the Cause Resolution to Executive shall be accompanied or followed by delivery by the Company to

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Executive of a written notice of termination for Cause referring to this Section 5(d), stating the grounds for such termination (which shall be the same grounds as set forth in the Cause Resolution) and specifying the effective date of such termination for Cause, which date shall be no earlier than thirty-one (31) days after the date on which Executive receives such written notice of termination for Cause (the “Cause Termination Notice”), provided that at any time prior to the effective date of such termination, the Board may, in accordance with the next sentence, relieve Executive of all or a portion of his duties and treat him as a suspended employee of the Company, and until the effective date of such termination Executive shall be entitled to continue to receive all compensation and benefits under this Agreement as if he had not been suspended or given notice of termination (and such suspension for the avoidance of doubt shall not constitute “Good Reason” for purposes of this Agreement).  Any such suspension shall be effected either (i) pursuant to the Cause Resolution or (ii) pursuant to a resolution otherwise approved (which approval need not be by meeting on formal notice) either by a majority of the Board (excluding Executive) or, if a majority of the Board cannot reasonably be convened promptly in person or by telephone, by a majority of the Executive and Finance Committee of the Board (excluding Executive), in each case determining, in the good faith opinion of the participants, that Executive was guilty of conduct constituting Cause and that prompt suspension of Executive is reasonably required in the best interests of the Company, which resolution is confirmed within ten (10) days by a Cause Resolution.  Notwithstanding any such suspension, Executive shall be afforded such opportunity as may be reasonable under the circumstances to correct grounds for termination as contemplated by the fifth sentence of this Section 5(d) until the expiration of the thirty (30) day period provided therein.

If Executive disputes the Company’s allegation of Cause by initiating arbitration pursuant to Section 13 of this Agreement and the arbitration panel finds that the Company properly terminated Executive’s employment for Cause in accordance with the provisions of this Section 5(d), Executive shall, within thirty (30) days of the arbitration award, repay the amount (if any) by which (A) the amounts provided to him by the Company in respect of periods commencing after the termination date of his employment set forth in the Cause Termination Notice, including but not limited to salary continuation and the value of all benefits provided to Executive in respect of periods commencing after his termination date, exceed (B) the amounts to which he is entitled under this Agreement upon a termination for Cause.  If the amount in clause (A) does not exceed the amount in clause (B), the Company may reduce any amounts owed to Executive by the amount in clause (A).  If the arbitration panel does not find that the Company properly terminated Executive’s employment for Cause in accordance with the provisions of this Section 5(c) (a “Failed Termination for Cause”), then (x) Executive’s employment shall be deemed to have been terminated by the Company without Cause as of the date (the “Deemed Termination Date”) which is thirty-one (31) days after the date on which the Cause Resolution and the Cause Termination Notice were delivered to Executive; (y) the Company shall provide Executive with the payments and benefits set forth in Section 5(e) hereof as if the Company had terminated Executive without Cause as of the Deemed Termination Date, provided that any amounts previously paid to Executive by the Company as a suspended employee in respect of periods commencing on or after the Deemed Termination Date shall be credited against amounts owed to Executive under Section 5(e) hereof; and (z) the Company shall pay (or reimburse, if already paid by Executive) all reasonable expenses actually incurred by Executive in connection with contesting such Failed Termination for Cause.

(e)           Termination by the Company without Cause or by Executive for Good Reason.  The Company may terminate Executive’s employment at any time without Cause, for any reason or no reason, and Executive may terminate Executive’s employment for “Good Reason.”  For

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purposes of this Agreement, “Good Reason” shall mean that, without Executive’s prior written consent, any of the following shall have occurred:  (i) a material change, adverse to Executive, in Executive’s positions, titles, offices, or duties as provided in Section 3 hereof, except, in such case, in connection with the termination of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term (or Extended Term); (ii) an assignment of any significant duties to Executive which are materially inconsistent with Executive’s positions or offices held under Section 3 hereof; (iii) a material decrease in Executive’s Base Salary or material decrease in Executive’s Incentive Compensation opportunities provided under this Agreement; (iv) change the location of Executive’s office from the existing location in New York, New York to a place not within forty (40) miles of the existing location in New York, New York; (v) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason under any of clauses (i) through (v) of this Section 5(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within sixty (60) days after he has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company.  Notwithstanding anything in this Agreement to the contrary, the removal of or the failure of the Board to elect Executive as Chairman of the Board (or Executive otherwise ceasing to serve as Chairman of the Board) shall not be deemed “Good Reason” under this Agreement. In the event that Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason (and not, for the avoidance of doubt, in the event of a termination pursuant to Section 5(a), (b), (c) or (d) hereof or due to the expiration of the Term (or Extended Term)), the Company shall pay the following amounts, and make the following other benefits available, to Executive.

(i)            the Standard Termination Payments;

(ii)           an amount equal to (A) two (2) multiplied by (B) the sum of (1) Executive’s Base Salary and (2) Executive’s Severance Bonus Amount, such amount payable over a period of twenty-four (24) months after such termination in accordance with Section 5(g) of this Agreement;

(iii)          no later than March 15 following the end of the year in which such termination pursuant to this Section 5(e) occurs, in lieu of any Incentive Compensation for the year in which such termination occurs, payment of a lump sum amount equal to (A) the Incentive Compensation which would have been payable to Executive had Executive remained in employment with the Company during the entire year in which such termination occurred, multiplied by (B) a fraction the numerator of which is the number of days Executive was employed in the year in which such termination occurs and the denominator of which is the total number of days in the year in which such termination occurs;

(iv)          subject to Section 6.6 hereof and except to the extent otherwise provided at the time of grant under the terms of any equity award made to Executive and except for the stock options and RSUs comprising the Performance Vesting 2010 Grant, all stock options, RSUs and other equity-based awards held by Executive at such termination will become fully vested and non-forfeitable, and, in all other respects, all such stock options and other awards shall be

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governed by the plans and programs and the agreements and other documents pursuant to which the awards were granted; and

(v)           if Executive elects to continue medical coverage under the Company’s group health plan in accordance with COBRA, the Company shall pay the monthly premiums for such coverage for a period of twelve (12) months.

(f)            Termination by the Company without Cause or by Executive for Good Reason in connection with a Change in Control.  In the event Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason pursuant to Section 5(e) hereof and such termination occurs upon, or within one (1) year immediately following, a “Change in Control” (as defined below), Executive shall be entitled (without duplication) to the payments and benefits described in Section 5(e) hereof, except that, solely in the case of an amount otherwise payable under Section 5(e)(ii) hereof, the multiplier referred to in Section 5(e)(ii)(A) hereof shall be three (3) (instead of two (2)) and such amount shall be payable over a period of thirty-six (36) months after termination in accordance with Section 5(g) of this Agreement; provided, however, to the extent that such amount under Section 5(e)(ii) is exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and applicable administrative guidance and regulations (“Section 409A”) and/or if such Change in Control constitutes a change in ownership, change in effective control or a change in ownership of a substantial portion of the assets of the Company under Regulation Section 1.409A-3(i)(5), such amount otherwise payable under Section 5(e)(ii) hereof shall be paid in a lump sum in accordance with Section 5(g) of this Agreement.  Notwithstanding the foregoing provisions of this Section 5(f), if any payment or right accruing under this Agreement (without application of this subsection), either alone or together with other payments or rights accruing to Executive from the Company or its affiliates (the “Total Payments”) would constitute a “parachute payment” as defined in 26 U.S.C. § 280G of the Code and regulations thereunder, such payment or right shall be reduced to the largest amount or greatest right that will result in no portion of the amount payable or right accruing under this Agreement being subject to an excise tax under Section 4999 of the Code or being disallowed as a deduction under Section 280G of the Code, provided that Executive may elect by written notice to the Company that no such reduction occur if after reduction for any applicable federal excise tax imposed by Section 4999 of the Code and federal income tax imposed by the Code, the Total Payments accruing to Executive would be greater than the amount of the Total Payments as reduced (if applicable) pursuant to this subsection after reduction for federal income taxes.  Executive shall cooperate in good faith with the Company in providing the necessary information for making a determination of the applicability of Section 280G.  The reduction of Total Payments, if applicable, shall be effected in the following order (unless Executive, to the extent permitted by Section 409A, elects another method of reduction by written notice to the Company prior to the Section 280G event): (i) any cash severance payments; (ii) any other cash amounts payable to Executive; (iii) any benefits valued as parachute payments; (iv) acceleration of vesting of any stock options for which the exercise price exceeds the then fair market value of the underlying stock, in order of the stock option tranches with the largest Section 280G parachute value; (v) acceleration of vesting of any equity award that is not a stock option; and (vi) acceleration of vesting of any stock options for which the exercise price is less then the fair market value of the underlying stock in such manner as would net Executive the largest remaining spread value if the options were all exercised as of the Section 280G event.

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For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred if: (i) any “person” as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and as used in Sections 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) of the Exchange Act but excluding the Company and any subsidiary or affiliate and any employee benefit plan sponsored or maintained by the Company or any subsidiary or affiliate (including any trustee of such plan acting as trustee) or any current stockholder of 20% or more of the outstanding common stock, directly or indirectly, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of securities of the Company representing at least 40% of the combined voting power of the Company’s then-outstanding securities; (ii) the stockholders of the Company approve a merger, consolidation, recapitalization, or reorganization of the Company, or a reverse stock split of any class of voting securities of the Company, or the consummation of any such transaction if stockholder approval is not obtained, other than any such transaction which would result in at least 60% of the total voting power represented by the voting securities of the Company or the surviving entity outstanding immediately after such transaction being beneficially owned by persons who together beneficially owned at least 80% of the combined voting power of the voting securities of the Company outstanding immediately prior to such transaction; provided that, for purposes of this Section 5(f), such continuity of ownership (and preservation of relative voting power) shall be deemed to be satisfied if the failure to meet such 60% threshold is due solely to the acquisition of voting securities by an employee benefit plan of the Company or such surviving entity or of any subsidiary of the Company or such surviving entity; (iii) the stockholders of the Company approve a plan of complete liquidation of the Company, an agreement for the sale or disposition by the Company of all or substantially all of its assets (or any transaction having a similar effect), or the Company sells all or substantially all of the stock of the Company to any person or entity other than an affiliate of the Company; or (iv) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board, together with any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in clause (i), (ii) or (iii) above) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the Board.

(g)           Timing of Certain Payments under Section 5.  Payments pursuant to Sections 5(c)(ii), 5(e)(ii) and 5(f), if any, shall be payable in equal installments in accordance with the Company’s standard payroll practices over the applicable period of months contemplated by such Sections following the date of termination (subject to such deductions or amounts to be withheld as required by applicable law and regulations); provided, however, that if and to the extent necessary to prevent any acceleration or additional tax under Section 409A, such payments shall be made as follows:  (i) no payments shall be made for a six-month period following the date of Executive’s separation of service (as defined in Section 409A(a)(2)(B)(i) of the Code) with the Company; (ii) an amount equal to the aggregate sum that would have been otherwise payable during the initial six-month period shall be paid in a lump sum six (6) months following the date of Executive’s separation of service with the Company (subject to such deductions or amounts to be withheld as required by applicable law and regulations); and (iii) during the period beginning six (6) months following Executive’s separation of service with the Company through the remainder of the applicable period, payment of the remaining amount due shall be payable in equal installments in accordance with the Company’s standard payroll practices (subject to such deductions or amounts to be withheld as required by applicable law and regulations).  In addition, notwithstanding any other provision with respect to the timing of payments under this Agreement,

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if and to the extent necessary to comply with Section 409A, amounts payable following termination of employment in a lump sum, shall instead be paid six (6) months following the date of Executive’s separation of service (subject to such deductions or amounts to be withheld as required by applicable law and regulations).

(h)           No Obligation to Mitigate.  Executive shall have no obligation to mitigate damages pursuant to this Section 5, but shall be obligated to promptly advise the Company regarding obtaining other employment providing health insurance benefits with respect to services provided to another employer during any period of continued payments pursuant to this Section 5.  The Company’s obligation to make continued insurance payments to or on behalf of Executive shall be reduced by any insurance coverage obtained by Executive during the severance period through employment by another entity (without regard to when such coverage is paid).

(i)            Set-Off.  To the fullest extent permitted by law and provided an acceleration of income or the imposition of an additional tax under Section 409A would not result, any amounts otherwise due to Executive hereunder (including, without limitation, any payments pursuant to this Section 5) shall be subject to set-off with respect to any amounts Executive otherwise owes the Company or any subsidiary or affiliate thereof.

(j)            No Other Benefits or Compensation.  Except as may be provided under this Agreement, under any other written agreement between Executive and the Company, or under the terms of any plan or policy applicable to Executive, Executive shall have no right to receive any other compensation from the Company, or to participate in any other plan, arrangement or benefit provided by the Company, with respect to any future period after such termination or resignation.

(k)           Release of Employment Claims; Compliance with Section 5.  Executive agrees, as a condition to receipt of any termination payments and benefits provided for in this Section 5 (other than the Standard Termination Payments (excluding the benefits described in the proviso in Section 5(a)(iii) hereof), that Executive will execute a general release agreement, in a form reasonably satisfactory to the Company, releasing any and all claims arising out of Executive’s employment (other than enforcement of this Agreement).  The Company shall provide Executive with the proposed form of release referred to in the immediately preceding sentence no later than two (2) days following the date of termination.  Executive shall have 21 days to consider the release and, if he executes the release, shall have seven (7) days after execution of the release to revoke the release, and, absent such revocation, the release shall become binding.  In the event Executive does not revoke the release, payments contingent on the release (if any) shall be paid no earlier than eight (8) days after execution thereof in accordance with the applicable provisions herein.  The Company’s obligation to make any termination payments and benefits provided for in this Section 5 (other than the Standard Termination Payments (excluding the benefits described in Section 5(a)(iii) hereof)) shall immediately cease if Executive willfully and materially breaches Section 6.1, 6.2, 6.3, 6.4, or 6.8 hereof.”

6.             Amendments to Section 6.6 of Agreement.  Section 6.6 of the Agreement is hereby amended and restated in its entirety as follows:

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“6.6         Forfeiture of Outstanding Equity Awards; Clawback.  Notwithstanding the provisions of Section 5, if a court of competent jurisdiction or an arbitral tribunal determines that Executive (x) willfully and materially breached Sections 6.1, 6.2, 6.3, 6.4 or 6.8 and (y) failed to cure such breach within thirty (30) days after his receipt of written notice from the Board, attaching a copy of a resolution duly adopted by the Board by a vote of directors constituting a majority of the Board (excluding Executive) at a meeting of the Board at which a quorum is physically present in person, in which resolution the Board sets forth such breach in reasonable detail and expressly elects the remedy provided in this Section 6.6, and which notice is delivered to Executive within ninety (90) days after the Company first had knowledge of such breach (the foregoing, collectively, a “Section 6.6 Notice of Breach”) (and which cure by Executive, in the case of a breach of Section 6.4, may be effected, without limitation, by correction or retraction of the disparaging statements), then all stock options, RSUs and other equity-based awards (whether granted prior to, contemporaneously with, or subsequent to this Agreement) granted by the Company and held by Executive or a transferee of Executive shall be immediately forfeited and thereupon such stock options, RSUs and other equity-based awards shall be cancelled, such forfeiture to be effective at the later of the time of such failure to comply or Executive’s termination of employment.  If a court of competent jurisdiction or arbitral tribunal finds that the Company is entitled to cause the forfeiture of Executive’s stock options, RSUs and other equity-based awards in accordance with the foregoing terms of this Section 6.6, Executive shall be required to forfeit such stock options, RSUs and other equity-based awards immediately.  If any option is exercised after delivery of the Section 6.6 Notice of Breach and if such forfeiture subsequently occurs pursuant to the foregoing terms of this Section 6.6, Executive shall be required to return to the Company all shares acquired upon such exercise; provided further that if Executive has sold any shares he acquired upon such exercise or upon vesting of RSUs or other equity-based awards, Executive shall pay to the Company an amount equal to the aggregate sale price of the shares sold (less, in the case of stock options, the aggregate exercise price paid by Executive for such shares).  If a court of competent jurisdiction or arbitral tribunal does not find that the Company is entitled to cause such forfeiture in accordance with the foregoing terms of this Section 6.6, the Company shall pay (or reimburse, if already paid by Executive) all reasonable expenses actually incurred by Executive in connection with contesting such attempted forfeiture.  Executive acknowledges and agrees that, notwithstanding anything contained in this Agreement or any other agreement, plan or program, any incentive-based compensation or benefits contemplated under this Agreement (including Incentive Compensation and equity-based awards) shall be subject to recovery by the Company under any compensation recovery or “clawback” policy, generally applicable to senior executives of the Company, that the Company may adopt from time to time, including without limitation any policy which the Company may be required to adopt under Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the rules and regulations of the Securities and Exchange Commission thereunder or the requirements of any national securities exchange on which the Company’s common stock may be listed.”