Common use of Parachute Payments Clause in Contracts

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any other payments and benefits provided or to be provided to the Executive from the Company or any of its subsidiaries or other affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the Code (“Parachute Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, except as otherwise provided in the next sentence, such Parachute Payments shall be reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company.

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any other payments and benefits provided or to be provided to the Executive from the Company or any of its subsidiaries or other affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) (or any successor provision thereto) (“Parachute Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, except as otherwise provided in the next sentence, such Parachute Payments shall be reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d2(h), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject that it determines will produce the required deduction in total Parachute Payments with the least reduction in economic value to Section 409A the Executive of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological ordersuch payments. The determination of the Independent Tax Counsel under this Section 5(d2(h) shall be final and binding on all parties hereto. For purposes of this Section 5(d2(h), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company.

Parachute Payments. If Independent Tax Counsel (as that term is defined belowa) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to Notwithstanding any other provision in this Agreement, and in the event any other payments and or benefits provided Executive receives or would become entitled to be provided to receive from the Executive from Company, any person whose actions result in a Change in Control or any person affiliated with the Company or any of its subsidiaries or other affiliates or any successors thereto such person (in the aggregate, the “Payments”) would (i) constitute a “parachute paymentspayment” as defined in within the meaning of Section 280G of the Code Code, and (“Parachute Payments”ii) that would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then, except as otherwise provided in then the next sentence, such Parachute amount of the Payments shall be reduced equal to either (x) the largest portion of the Payments that would result in no portion of the Payments being subject to the extent Excise Tax (the Independent “Reduced Amount”), or (y) the full amount of the Payments, whichever of the foregoing amounts, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax Counsel shall determine is necessary (but not below zero) so all computed at the highest marginal rate applicable to individuals in the year in which the Payments are to be made), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payments notwithstanding that no all or some portion thereof shall of the Payments may be subject to the Excise Tax. If Independent Tax Counsel determines a reduction in the Payments is required so that the Executive would receive in amount of the aggregate greater payments and benefits on an after tax basis if Payments equals the Parachute Reduced Amount, the Payments were not reduced pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order order: (1) reduction of cash payments not subject Payments otherwise payable to Executive that are exempt from Section 409A of the Code; (2) cash payments subject to cancellation of accelerated vesting of equity awards (other than stock options) that are exempt from Section 409A of the Code; (3) equity-based cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; (4) reduction of any other payments and accelerationbenefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (45) nonreduction of any other benefits and payments otherwise payable to Executive on a pro-cash forms rata basis or such other manner that complies with Section 409A of benefitsthe Code, as determined by the Company. To the extent any payment If acceleration of vesting of Executive’s stock options or other equity awards is to be made over time reduced pursuant to clauses (e.g.2) or (3) of the immediately preceding sentence, in installments, etc.), then the payments such acceleration of vesting shall be reduced in reverse chronological order. The determination of cancelled by first canceling such acceleration for the Independent Tax Counsel under this Section 5(d) shall be final vesting installment that will vest last and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean continuing by canceling as a lawyer, a certified public accountant first priority such acceleration for the vesting installment with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Companylatest vesting.

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines that the aggregate payments and benefits provided or to be provided 7.2.1 Anything in this Agreement to the Executive pursuant to this Agreementcontrary notwithstanding, in the event that a Change in Control occurs and it shall be determined that any other payments and benefits provided payment or to be provided to the Executive from distribution by the Company or any its Affiliates to or for the benefit of its subsidiaries the Employee, whether paid or other affiliates payable or any successors thereto distributed or distributable pursuant to the terms of this Agreement or otherwise, would constitute an “excess parachute paymentspayment” as defined in Section within the meaning of section 280G of the Code (each such payment, a “Parachute PaymentsPayment”) that and would result in the imposition on the Employee of an excise tax under section 4999 of the Code, then, in addition to any other benefits to which the Employee is entitled under this Agreement or otherwise, the Employee shall be subject paid an amount in cash equal to the sum of the excise taxes payable by the Employee by reason of receiving Parachute Payments plus the amount necessary to place the Employee in the same after-tax position (taking into account any and all applicable federal, state and local excise, income or other taxes at the highest possible applicable rates on such Parachute Payments (including, without limitation, any payments under this Subparagraph 7.2(a)) as if no excise taxes had been imposed with respect to Parachute Payments (the “Parachute Gross-up”). In no event shall a Parachute Gross-up be payable under this subparagraph 7.2.1 in the absence of a Change in Control. Any Parachute Gross-up otherwise required by Section this Subparagraph 7.2(a) shall not be made later than the time of the corresponding payment or benefit hereunder giving rise to the underlying section 4999 of the Code excise tax (the “Excise Tax”), then, except as otherwise provided in the next sentence, such Parachute Payments shall be reduced to the extent such determination has been made prior to such time), even if the Independent Tax Counsel shall determine payment of the excise tax is necessary (but not below zerorequired under the Code until a later time. Any Parachute Gross-up otherwise required under this Subparagraph 7.2(a) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were made whether or not reduced pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel are payable under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the BoardAgreement, and whose fees and disbursements whether or not the Employee’s employment with the Company shall be paid by the Companyhave been terminated.

Parachute Payments. If Independent Tax Counsel any payment or benefit (as that term is defined below) determines that the aggregate including payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any other payments and benefits provided or to be provided to the ) that Executive would receive in connection with a Change in Control from the Company or any of its subsidiaries or other affiliates or any successors thereto otherwise (“Transaction Payment”) would (i) constitute a “parachute paymentspayment” as defined in within the meaning of Section 280G of the Code Code, and (“Parachute Payments”ii) that would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), thenthen the Company shall cause to be determined, except as otherwise provided before any amounts of the Transaction Payment are paid to Service Provider, which of the following two alternative forms of payment would result in Service Provider’s receipt, on an after-tax basis, of the next sentence, such Parachute Payments shall be reduced to greater amount of the extent Transaction Payment notwithstanding that all or some portion of the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall Transaction Payment may be subject to the Excise Tax. If Independent Tax Counsel determines that : (1) payment in full of the Executive would receive in entire amount of the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(dTransaction Payment (a “Full Payment”), then no such reduction shall be made. The determination or (2) payment of which payments or benefits shall be reduced to avoid only a part of the Transaction Payment so that Service Provider receives the largest payment possible without the imposition of the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.a “Reduced Payment”), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean determining whether to make a lawyer, a certified public accountant with a nationally recognized accounting firm, Full Payment or a compensation consultant with Reduced Payment, the Company shall cause to be taken into account all applicable federal, state and local income and employment taxes and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a nationally recognized actuarial deduction of such state and local taxes). If a Reduced Payment is made, (x) Executive shall have no rights to any additional payments and/or benefits consulting firm with expertise constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the area manner that results in the greatest economic benefit to Executive as determined in this paragraph. If more than one method of executive compensation tax lawreduction will result in the same economic benefit, who the portions of the Transaction Payment shall be selected by reduced pro rata. Unless Executive and the BoardCompany otherwise agree in writing, and whose fees and disbursements any determination required under this section shall be paid made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. Executive and the Company shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this section as well as any costs incurred by Executive with the Accountants for tax planning under Sections 280G and 4999 of the Code.

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines that the aggregate payments and benefits provided or to be provided 6.7.1 Anything in this Agreement to the Executive pursuant to this Agreementcontrary notwithstanding, in the event that a Change in Control occurs and it shall be determined that any other payments and benefits provided payment or to be provided to the Executive from distribution by the Company or any its Affiliates to or for the benefit of its subsidiaries the Employee, whether paid or other affiliates payable or any successors thereto distributed or distributable pursuant to the terms of this Agreement or otherwise, would constitute an “excess parachute paymentspayment” as defined in Section within the meaning of section 280G of the Code (each such payment, a “Parachute PaymentsPayment”) that and would result in the imposition on the Employee of an excise tax under section 4999 of the Code, then, in addition to any other benefits to which the Employee is entitled under this Agreement or otherwise, the Employee shall be subject paid an amount in cash equal to the sum of the excise taxes payable by the Employee by reason of receiving Parachute Payments plus the amount necessary to place the Employee in the same after-tax position (taking into account any and all applicable federal, state and local excise, income or other taxes at the highest possible applicable rates on such Parachute Payments (including, without limitation, any payments under this Subparagraph 6.7.1) as if no excise taxes had been imposed with respect to Parachute Payments (the “Parachute Gross-up”). In no event shall a Parachute Gross-up be payable under this subparagraph 6.7.1 in the absence of a Change in Control. Any Parachute Gross-up otherwise required by Section this Subparagraph 6.7.1 shall not be made later than the time of the corresponding payment or benefit hereunder giving rise to the underlying section 4999 of the Code excise tax (the “Excise Tax”), then, except as otherwise provided in the next sentence, such Parachute Payments shall be reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject such determination has been made prior to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis such time), even if the payment of the excise tax is not required under the Code until a later time. Any Parachute Payments were not reduced pursuant to Gross-up otherwise required under this Section 5(d), then no such reduction Subparagraph 6.7.1 shall be made. The determination of which , whether or not payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel are payable under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the BoardAgreement, and whose fees and disbursements whether or not the Employee’s employment with the Company shall be paid by the Companyhave been terminated.

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any other payments and benefits provided or to be provided to the Executive from the Company or any of its subsidiaries or other affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the Code (“Parachute Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, except as otherwise provided in the next sentence, such Parachute Payments shall be reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d5(f), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d5(f) shall be final and binding on all parties hereto. For purposes of this Section 5(d5(f), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company.

Parachute Payments. If Independent Tax Counsel In the event that (as that term is defined belowi) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to this Agreementany severance payment, and any other payments and benefits provided or to be provided to the Executive from the Company or any of its subsidiaries insurance benefits, accelerated vesting, pro-rated bonus or other affiliates or any successors thereto benefit payable to Executive shall constitute a “parachute paymentspayment” as defined in within the meaning of Code Section 280G of the Code (“Parachute PaymentsPayment”) that would and be subject to the excise tax imposed by Code Section 4999 of the Code (the “Excise Tax”), then, except as otherwise provided in and (ii) if the next sentence, such Parachute Payments shall be payments to Executive were reduced to the minimum extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that such payments did not constitute Parachute Payments, the net benefits retained by Executive after the deduction of any federal, state or local income taxes would be greater than the net benefits retained by Executive if there was no portion thereof such reduction after the deduction of Excise Tax and any federal, state or local income taxes, then such payments shall be subject to so reduced. Such reduction shall be accomplished in any manner deemed appropriate by Flora Management after consultation with Executive. For purposes of making the Excise Tax. If Independent Tax Counsel determines foregoing determination: (1) Parachute Payments provided under arrangements with Executive other than this Agreement, if any, shall be taken into account in determining the total amount of Parachute Payments received by Executive so that the amount of Parachute Payments that are attributable to provisions of this Agreement is maximized; and (2) Executive would receive shall be deemed to pay federal, state and local income taxes at the highest marginal rate of taxation for Executive’s taxable year in the aggregate greater payments and benefits on an after tax basis if which the Parachute Payments were not reduced pursuant to this Section 5(d)are includable in Executive’s income for purposes of federal, then no such reduction shall be madestate and local income taxation. The determination of which payments or benefits shall be reduced to avoid whether the Excise Tax is payable, and the amount of any reduction necessary to make the Excise Tax not payable, as well as whether such a reduction would result in greater after-tax benefits to Executive, shall be made in writing in good faith by the Independent Tax Counsela nationally-recognized independent certified public accounting firm approved by Flora Management and Executive, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments such approval not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time unreasonably withheld (e.g., in installments, etc.the “Accounting Firm”), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of making the calculations required by this Section 5(d11(a), “Independent Tax Counsel” to the extent not otherwise specified herein, reasonable assumptions and approximations may be made with respect to applicable taxes and reasonable, good faith interpretations of the Code may be relied upon. Flora Management and Executive shall mean a lawyer, a certified public accountant furnish such information and documents as may be reasonably requested in connection with a nationally recognized accounting firm, or a compensation consultant the performance of the calculations under this Section 11(a). Flora Management shall bear all costs incurred in connection with a nationally recognized actuarial and benefits consulting firm with expertise in the area performance of executive compensation tax law, who shall be selected the calculations contemplated by the Board, and whose fees and disbursements shall be paid by the Companythis Section 11(a).

Parachute Payments. If Independent Tax Counsel (as that term is defined belowa) determines that the aggregate payments and benefits provided or to be provided Anything in this Agreement to the Executive pursuant to this Agreementcontrary notwithstanding, and in the event that it shall be determined that any other payments and benefits provided payment or to be provided to the Executive from distribution by the Company or any its Affiliates to or for the benefit of its subsidiaries the Employee, whether paid or other affiliates payable or any successors thereto distributed or distributable pursuant to the terms of this Agreement or otherwise, would constitute an “excess parachute paymentspayment” as defined in Section within the meaning of §280G of the Internal Revenue Code of 1986, as amended (the “Code”) (each such payment, a “Parachute PaymentsPayment”) that and would result in the imposition on the Employee of an excise tax under Code §4999, then, in addition to any other benefits to which the Employee is entitled under this Agreement or otherwise, the Employee shall be subject paid an amount in cash equal to the sum of the excise taxes payable by the Employee by reason of receiving Parachute Payments plus the amount necessary to place the Employee in the same after-tax position (taking into account any and all applicable federal, state and local excise, income or other taxes at the highest possible applicable rates on such Parachute Payments (including, without limitation, any payments under this subparagraph 11.2(a)) as if no excise taxes had been imposed with respect to Parachute Payments (the “Parachute Gross-up”). Any Parachute Gross-up otherwise required by this subparagraph 11.2(a) shall not be made later than the time of the corresponding payment or benefit hereunder giving rise to the underlying Code §4999 excise tax (to the extent such determination has been made prior to such time), even if the payment of the excise tax imposed by Section 4999 of is not required under the Code (the “Excise Tax”), then, except as until a later time. Any Parachute Gross-up otherwise provided in the next sentence, such Parachute Payments required under this subparagraph 11.2(a) shall be reduced to the extent the Independent Tax Counsel shall determine made whether or not there is necessary (but a Change in Control, whether or not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid are payable under this Agreement, whether or not the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits giving rise to the Parachute Gross-up are made in respect of a Change in Control and whether or not the following order (1) cash payments not subject to Section 409A of Employee’s employment with the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcEmployer shall have been terminated.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company.

Parachute Payments. If Independent Tax Counsel (as Notwithstanding anything contained in this Agreement to the contrary, to the extent that term is defined below) determines that the aggregate payments and benefits provided under this Agreement or otherwise (including the acceleration of vesting of equity awards) to Executive (such payments or benefits are collectively referred to as the “Payments”) would be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Payments shall be reduced (but not below zero) to the extent necessary so that no Payment to be made or benefit to be provided to the Executive pursuant to this Agreement, and any other payments and benefits provided or to shall be provided subject to the Excise Tax, but only if, by reason of such reduction, the net after-tax benefit received by Executive shall exceed the net after-tax benefit received by him if no such reduction was made. For purposes of this Section 9(d), “net after-tax benefit” shall mean (i) the Payments which Executive receives or is then entitled to receive from the Company or any of its subsidiaries or other affiliates or any successors thereto that would constitute “parachute payments” as defined in within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to Executive (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the Code. The foregoing determination will be made by a nationally recognized accounting firm (the “Parachute PaymentsAccounting Firm”) selected by Executive and reasonably acceptable to the Company (which may be, but will not be required to be, the Company’s independent auditors). The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the affected Executive and the Company within fifteen (15) calendar days after Executive’s date of Separation from Service. If the Accounting Firm determines that would such reduction is required by this Section 9(d) and no Payment constitutes non-qualified deferred compensation that is subject to Section 409A of the Code, Executive, in Executive’s sole and absolute discretion, may determine which Payments shall be reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code (Code, and the “Excise Tax”Company shall pay such reduced amount to him. If the Accounting Firm determines that a reduction is required by this Section 9(d), then, except as otherwise provided in and any Payment constitutes a “deferral of compensation” within the next sentence, such Parachute Payments shall be reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d), then no such reduction shall be made. The determination meaning of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the Payments shall be reduced in the following order; (a) reduction in the cash severance payments described herein (with such reduction being applied to the payments in the reverse order in which they would otherwise be made, that is, later payments shall be reduced before earlier payments); (b) reduction in any other cash payments payable to Executive (with such reduction being applied to the payments in the reverse chronological order. The determination order in which they would otherwise be made, that is, later payments shall be reduced before earlier payments); (c) cancellation of acceleration of vesting on any equity awards for which the exercise price exceeds the then fair market value of the Independent Tax Counsel underlying equity; and (d) cancellation of acceleration of vesting of equity awards not covered under this Section 5(d(c) above; provided, however that in the event that acceleration of vesting of equity awards is to be cancelled, such acceleration of vesting shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise cancelled in the area reverse order of executive compensation tax lawthe date of grant of such equity awards, who that is, later equity awards shall be selected by the Board, and whose fees and disbursements shall be paid by the Companycanceled before earlier equity awards.

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines that the aggregate payments and benefits provided or to be provided Notwithstanding anything contained in this Agreement to the contrary, the Company, based on the advice of its legal or tax counsel, shall compute whether there would be any “excess parachute payments” payable to Executive, within the meaning of Section 280G of the Code, taking into account the total ‘‘parachute payments,” within the meaning of Section 280G of the Code, payable to Executive pursuant to by the Company under this Agreement, Agreement and any other payments and benefits provided plan, agreement or to otherwise. If there would be provided to any excess parachute payments, the Executive from Company, based on the Company or any advice of its subsidiaries legal or other affiliates or any successors thereto constitute “tax counsel, shall compute the net after-tax proceeds related to such parachute payments, taking into account the excise tax imposed by Section 4999 of the Code, as if: (i) such parachute payments were reduced, but not below zero, such that the total parachute payments payable to Executive would not exceed three (3) times the “base amount” as defined in Section 280G of the Code Code, less One Dollar (“Parachute Payments”$1.00); or (ii) that the full amount of such parachute payments were not reduced. If reducing the amount of such parachute payments otherwise payable would result in a greater after-tax amount to Executive, such reduced amount shall be subject paid to Executive and the remainder shall be forfeited. If not reducing such parachute payments otherwise payable would result in a greater after-tax amount to Executive, then such parachute payments shall not be reduced. If such parachute payments are reduced pursuant to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)foregoing, then, except as otherwise provided they will be reduced in the next sentencefollowing order: first, such Parachute Payments shall be reduced by reducing any cash severance payments, then by reducing any fringe or other severance benefits, and finally by reducing any payments or benefits otherwise payable with respect to, or measured by, the Company’s common stock (including without limitation by eliminating accelerated vesting, in each case starting with the installment or tranche last eligible to become vested absent the occurrence of a change in control). Notwithstanding the foregoing, to the extent the Independent Tax Counsel Parties agree that any of the foregoing amounts are not parachute payments, such amounts shall determine is necessary (but not below zerobe reduced. To the extent the Parties cannot agree as to whether any of the payments are in fact parachute payments, the Parties will designate, by mutual agreement, an unrelated third-party with tax expertise to make the determination. Notwithstanding any provision of this Section 3.2(d) so that to the contrary, no portion thereof amount shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced reduction pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced 3.2(d) to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent the reduction would result in a violation of any payment is to be made over time (e.g., in installments, etcapplicable law.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company.

Parachute Payments. If Independent Tax Counsel (as Notwithstanding any other provision of this Section 3, if it is determined that term is defined below) determines that part or all of the aggregate payments and compensation or benefits provided or to be provided paid to the Executive pursuant Employee under this Agreement in connection with the Employee’s Severance Termination , or under any other plan, arrangement or agreement, constitutes a “parachute payment” under section 280G(b)(2) of the Internal Revenue Code of 1986, as amended, then the amount constituting a parachute payment that would otherwise be payable to this Agreementor for the benefit of the Employee first shall be deferred (to the greatest extent permitted by such applicable law), and any other payments and benefits provided or to be provided to the Executive from the Company or any of its subsidiaries or other affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the Code (“Parachute Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)extent not so deferred, then, except as otherwise provided in the next sentence, such Parachute Payments shall be reduced (if required under such applicable law), but only to the extent necessary, so that such amount would not constitute a parachute payment. Any determination that a payment constitutes a parachute payment shall be made as promptly as practicable following the Independent Tax Counsel shall determine is necessary Employee’s termination of employment (but not below zerolater than the date payment is required under subsection (a) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to of this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made Section) by the Independent Tax Counselindependent public accountants that audited the Company’s financial statements for the fiscal year preceding the year in which the Employee’s employment was terminated, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The whose determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on in all parties heretocases. For purposes Unless the Employee is given notice that a payment (or payments) will constitute a parachute payment prior to the earlier of (1) receipt of such payments or (2) the tenth business day following his or her Severance Termination, no payment (or payments) shall be deemed to constitute a parachute payment. If the determination made pursuant to this Section 5(d), “Independent Tax Counsel” shall mean subsection would result in a lawyerdeferral (to the greatest extent permitted under such applicable law) and to the extent not so deferred, a certified public accountant with a nationally recognized accounting firmreduction (to the minimum extent required by such applicable law) of the payments that would otherwise be paid to the Employee, the Employee may elect, in his sole discretion, which and how much of any particular entitlement shall be so deferred or reduced (giving effect to any payments and benefits that may have been received prior to such termination) and shall advise the Company in writing of his election within 10 days of the determination of the deferral or reduction in payments. If no such election is made by the Employee within such 10-day period, the Company shall determine which and how much of any entitlement shall be deferred (to the greatest extent permitted under such applicable law) and, to the extent not so deferred, reduced (to the extent required under such applicable law) and shall notify the Employee promptly of such determination. The Company shall (or shall cause the applicable SPAR Affiliate to) pay to, or a compensation consultant with a nationally recognized actuarial distribute to or for the benefit of, the Employee such amounts as are then due to the Employee under this Agreement and benefits consulting firm with expertise shall timely pay to, or distribute to or for the benefit of, the Employee in the area of executive compensation tax law, who shall be selected by future such amounts as become due to the Board, and whose fees and disbursements shall be paid by the CompanyEmployee under this Agreement.

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any other payments and benefits provided or to be provided to the Executive from the Company or any of its subsidiaries or other affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the Code (“Parachute Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, except as otherwise provided in the next sentence, such Parachute Payments shall be reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d5(f), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d5(f) shall be final and binding on all parties hereto. For purposes of this Section 5(d5(f), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company. The Executive shall have the right, at the Executive’s own expense, to retain Independent Tax Counsel to rebut any decision made by the Company’s Independent Tax Counsel, who may consider such rebuttal before making its final and binding determination.

Parachute Payments. (a) If Independent Tax Counsel (as that term is defined below) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any other payments and benefits provided or to be provided to the Executive from the Company or any of its subsidiaries Subsidiaries or other affiliates Affiliates or any successors thereto constitute “"parachute payments” " as defined in Section 280G of the Internal Revenue Code of 1986, as amended (“the "Code") (or any successor provision thereto) ("Parachute Payments”") that would be subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then, except as otherwise provided in the next sentence, such Parachute Payments shall be reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d7(a), then no such reduction shall be made. The determination ; provided, however, that in such case the provisions of which payments or benefits Sections 7(b)(i) and 7(b)(ii) shall not be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological orderoperative. The determination of the Independent Tax Counsel under this Section 5(dsubsection (a) shall be final and binding on all parties hereto. The determination of which payments or benefits to reduce in order to avoid the Excise Tax shall be determined in the sole discretion of the Executive; provided, however, that unless the Executive gives written notice to the Company specifying the order to effectuate the limitations described above within ten (10) days of the Independent Tax Counsel’s determination to make such reduction, the Company shall first reduce those payments or benefits that will cause a dollar-for-dollar reduction in total Parachute Payments, and then by reducing other Parachute Payments, to the extent possible, in reverse order beginning with payments or benefits that are to be paid the farthest in time from the date the reduction is to be made. Any notice given by the Executive pursuant to the preceding sentence, unless prohibited by law, shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive's rights and entitlement to any benefits or compensation. For purposes of this Section 5(d7(a), “"Independent Tax Counsel” " shall mean a lawyeran attorney, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the BoardCompany and shall be acceptable to the Executive (the Executive's acceptance not to be unreasonably withheld), and whose fees and disbursements shall be paid by the Company.

Parachute Payments. If Independent Tax Counsel (as a) In the event it shall be determined that term is defined below(i) determines that any payment or distribution to or for the aggregate payments and benefits provided or to be provided to benefit of the Executive pursuant to under this Agreement, and Agreement or any other payments and benefits provided plan, arrangement or to be provided to agreement with the Executive from Company, any person whose actions result in a Change in Control or other change in control or any person affiliated with the Company or any of its subsidiaries or other affiliates or any successors thereto constitute such person (the “parachute paymentsPayment” as defined in Section 280G of and collectively, the Code (“Parachute Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed) or any interest or penalties with respect to such excise tax (collectively, such excise tax, together with any such interest or penalties, the “Excise Tax”) and (ii) the amount of all the Payments that Executive would retain after all federal, state and local income taxes, Executive’s share of employment taxes, and the Excise Tax on the Payments would be less than the amount Executive would retain after all such taxes if the total amount of the Payments were reduced to an amount equal to one dollar less than the minimum amount which would result in the Payments becoming subject to the Excise Tax (such reduced amount, the “Safe Harbor Amount”), then, except as otherwise provided in then the next sentence, such Parachute total amount of the Payments that shall be payable to Executive shall be reduced to an amount equal to the Safe Harbor Amount. The Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments otherwise payable to the extent the Independent Tax Counsel shall determine is necessary Executive that are exempt from Section 409A, (but not below zeroB) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d), then no such reduction shall be made. The determination of which any other cash payments or benefits shall be reduced otherwise payable to avoid the Excise Tax shall be made by Executive that are exempt from Section 409A, but excluding any payment attributable to the Independent Tax Counselacceleration of vesting or payment with respect to any equity award that is exempt from Section 409A, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, (C) reduction of any other payments or benefits in otherwise payable to the following order (1) cash payments not subject Executive on a pro-rata basis or such other manner that complies with Section 409A, but excluding any payment attributable to the acceleration of vesting and payment with respect to any equity award that is exempt from Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; 409A, and (4D) non-cash forms reduction of benefits. To any payments attributable to the extent acceleration of vesting or payment with respect to any payment equity award that is to exempt from Section 409A, in each case beginning with payments that would otherwise be made over time (e.g., last in installments, etctime.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company.

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines that the aggregate payments and benefits provided or to be provided Notwithstanding anything contained in this Agreement to the contrary, the Company, based on the advice of its legal or tax counsel, shall compute whether there would be any “excess parachute payments” payable to Executive, within the meaning of Section 280G of the Code, taking into account the total ‘‘parachute payments,” within the meaning of Section 280G of the Code, payable to Executive pursuant to by the Company under this Agreement, Agreement and any other payments and benefits provided plan, agreement or to otherwise. If there would be provided to any excess parachute payments, the Executive from Company, based on the Company or any advice of its subsidiaries legal or other affiliates or any successors thereto constitute “tax counsel, shall compute the net after-tax proceeds related to such parachute payments, taking into account the excise tax imposed by Section 4999 of the Code, as if (i) such parachute payments were reduced, but not below zero, such that the total parachute payments payable to Executive would not exceed three (3) times the “base amount” as defined in Section 280G of the Code Code, less One Dollar (“Parachute Payments”$1.00), or (ii) that the full amount of such parachute payments were not reduced. If reducing the amount of such parachute payments otherwise payable would result in a greater after-tax amount to Executive, such reduced amount shall be subject paid to Executive and the remainder shall be forfeited. If not reducing such parachute payments otherwise payable would result in a greater after-tax amount to Executive, then such parachute payments shall not be reduced. If such parachute payments are reduced pursuant to the excise tax imposed foregoing, they will be reduced in the following order: first, by Section 4999 reducing any cash severance payments, then by reducing any fringe or other severance benefits, and finally by reducing any payments or benefits otherwise payable with respect to, or measured by, the Company’s common stock (including without limitation by eliminating accelerated vesting, in each case starting with the installment or tranche last eligible to become vested absent the occurrence of the Code Change in Control (the “Excise Tax”), then, except as otherwise provided defined in the next sentenceCompany’s 2014 Incentive Plan)). Notwithstanding the foregoing, such Parachute Payments shall be reduced to the extent the Independent Tax Counsel parties agree that any of the foregoing amounts are not parachute payments, such amounts shall determine is necessary (but not below zerobe reduced. To the extent the parties cannot agree as to whether any of the payments are in fact parachute payments, the parties will designate, by mutual agreement, an unrelated third-party with tax expertise to make the determination. Notwithstanding any provision of this Section 3.2(d) so that to the contrary, no portion thereof amount shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced reduction pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced 3.2(d) to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent the reduction would result in a violation of any payment is to be made over time (e.g., in installments, etcapplicable law.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company.

Parachute Payments. (a) If Independent Tax Counsel (as that term is defined below) determines that the aggregate payments and benefits provided or to be provided to the Executive Employee pursuant to this Agreement, and any other payments and benefits provided or to be provided to the Executive Employee from the Company or any of its subsidiaries or other affiliates Affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) (or any successor provision thereto) (“Parachute Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, except as otherwise provided in the next sentence, such Parachute Payments shall be reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive Employee would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d7(a), then no such reduction shall be made. The determination ; provided, however, that in such case the provisions of which payments or benefits Sections 7(b)(i) and 7(b)(ii) shall not be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological orderoperative. The determination of the Independent Tax Counsel under this Section 5(dsubsection (a) shall be final and binding on all parties hereto. The determination of which payments or benefits to reduce in order to avoid the Excise Tax shall be determined in the sole discretion of the Employee; provided, however, that unless the Employee gives written notice to the Company specifying the order to effectuate the limitations described above within ten (10) days of the Independent Tax Counsel’s determination to make such reduction, the Company shall first reduce those payments or benefits that will cause a dollar-for-dollar reduction in total Parachute Payments, and then by reducing other Parachute Payments, to the extent possible, in reverse order beginning with payments or benefits that are to be paid the farthest in time from the date the reduction is to be made. Any notice given by the Employee pursuant to the preceding sentence, unless prohibited by law, shall take precedence over the provisions of any other plan, arrangement or agreement governing the Employee’s rights and entitlement to any benefits or compensation. For purposes of this Section 5(d7(a), “Independent Tax Counsel” shall mean a lawyeran attorney, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive Employee compensation tax law, who shall be selected by the BoardCompany and shall be acceptable to the Employee (the Employee’s acceptance not to be unreasonably withheld), and whose fees and disbursements shall be paid by the Company.

Parachute Payments. If Independent Tax Counsel (as that term is defined below) the Company determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to any amounts payable under this Agreement, and any either alone or together with other payments and benefits provided or to compensation, would be provided subject to the Executive from excise tax imposed on “excess parachute payments” under Section 4999 of the Code, the Company or any of its subsidiaries or other affiliates or any successors thereto constitute shall compute the amount that would be payable to Executive if the total amounts that are payable to Executive by the Company and are considered “parachute payments” as defined in for purposes of Code Section 280G of the Code (“Parachute Payments”) were limited to the maximum amount that may be paid to Executive under Code Sections 280G and 4999 without imposition of the excise tax (this amount is referred to as the “Capped Amount”). The Company will also compute the amount that would be payable under the Agreement without regard to the Code Sections 280G and 4999 limit (this amount is referred to as the “Uncapped Amount”). Notwithstanding anything in this Agreement to the contrary, if the Uncapped Amount is less than 110% of the Capped Amount, then the total benefits and other amounts that are considered Parachute Payments and are payable to Executive under this Agreement will be reduced to the Capped Amount. If the Capped Amount is to be paid, payments shall be reduced in the following order: (i) any cash severance based on a multiple of Base Salary or Annual Bonus, (ii) any other cash amounts payable to Executive, (iii) any benefits valued as Parachute Payments, (iv) acceleration of vesting on any stock awards for which the exercise price exceeds the then fair market value and (v) acceleration of vesting of any equity not covered by section (iv) above, unless Executive elects another method of reduction of written notice to the Company prior to a Change in Control. If, after application of the preceding paragraph, any payments, distributions or benefits Executive would receive from the Company or otherwise, but determined without regard to any additional payment required under this Section 3.2, pursuant to the terms of this Agreement (“Payments”), would (i) constitute Parachute Payments, and (ii) be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then, except as otherwise provided in the next sentence, such Parachute Payments then Executive shall be reduced entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount that shall fund the payment by Executive of any Excise Tax on the Payments as well as all income and employment taxes imposed on the Gross-Up Payment, any Excise Tax imposed on the Gross-Up Payment and any interest or penalties imposed with respect to income and employment taxes imposed on the Gross-Up Payment. The accounting firm engaged by the Company for general audit purposes as of the day prior to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A effective date of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g.Change in Control, in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with or a nationally recognized accounting firmfirm of the Company’s choosing, shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within fifteen (15) calendar days after the date on which Executive’s right to the Payments is triggered (if requested at that time by the Company or a compensation consultant Executive) or such other time as requested by the Company or Executive. If the accounting firm determines that no Excise Tax is payable with a nationally recognized actuarial respect to the Payments, it shall furnish the Company and benefits consulting Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Payments. Any good faith determinations of the accounting firm with expertise in the area of executive compensation tax law, who made hereunder shall be selected by final, binding and conclusive upon the Board, Company and whose fees and disbursements Executive. Any Gross-Up Payment to which Executive becomes entitled under this Section 3.2 shall be paid by made to Executive no later than the Companycalendar year next following the calendar year in which Executive remits the taxes to which such Gross-Up Payment relates.

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines In the event that the aggregate payments and benefits provided or to amount of any Payments that could be provided to the Executive pursuant to this Agreement, and any other payments and benefits provided or to be provided to the Executive from the Company or any of its subsidiaries or other affiliates or any successors thereto constitute considered “parachute payments” (as defined in Section 280G of the Code Code) (such payments, the “Parachute Payments”) exceeds the greatest amount of Parachute Payments that would may be subject paid, provided or delivered to the excise tax imposed by Section 4999 of Executive without giving rise to any liability for the Code (the “Excise Tax”), then, except as otherwise provided in then the next sentence, such aggregate amount of Parachute Payments to which the Executive is entitled shall be reduced to an amount equal to the extent amount which produces the Independent greatest after-tax benefit to the Executive after taking into account any Excise Tax Counsel to be payable by the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Company shall determine is necessary reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case, in reverse order beginning with payments or benefits which are to be paid the furthest in the future. This Section 5 shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any Payment. All determinations to be made under this Section 5 shall be made, at the Company’s expense, by a nationally recognized certified public accounting firm selected by the Company (but not below zero) so other than any such firm that no portion serves as the Company’s auditor or otherwise has a material recurring business relationship with the Company), and written copies thereof shall be promptly delivered to the Executive. For the avoidance of doubt, this Section 5 shall not be applicable to the extent that the Executive is not subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A virtue of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcExecutive’s tax residence.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company.

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines Notwithstanding anything in this Agreement to the contrary, in the event that the aggregate payments and benefits provided or to be provided Company’s outside, independent accountants shall determine that the termination compensation payable to the Executive pursuant to this AgreementSection 10.1 (the “Agreement Payments”) shall, and any other payments and benefits provided as a result of a change in the ownership or to be provided to the Executive from effective control of the Company or any in the ownership of its subsidiaries or other affiliates or any successors thereto a substantial portion of the assets of the Company, constitute “a parachute payments” as defined in payment within the meaning of Section 280G of the Code Code, and the aggregate of such parachute payments and any other amounts paid or distributed to the Executive from any other plans or arrangements maintained by the Company or its affiliates (such other payments together with the Agreement Payments shall be referred to as the “Parachute Total Payments”) that would more likely than not, in the opinion of the Company’s accountants, cause the Executive to be subject to the excise tax imposed by on excess parachute payments under Section 4999 of the Code (the “Excise Tax”), then, except as otherwise provided in the next sentence, such Parachute Payments termination compensation payable pursuant to Section 10.1 shall be reduced in such amount as is required to reduce the aggregate “present value” (as that term is defined in Section 280G(d)(4) of the Code) of the Total Payments to one dollar less than three (3) times the Executive’s Base Amount to the extent end that the Independent Tax Counsel shall determine Executive is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that an amount has been paid to the Executive would receive which should not have been paid due to the required reduction in aggregate present value, the aggregate greater payments and benefits on an after tax basis if Executive shall promptly return such amount to the Parachute Payments were not reduced pursuant to this Company (together with interest at the rate set forth in Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (11274(b)(2)(B) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d)determining whether and the extent to which the Total Payments would more likely than not cause the Executive to be subject to the Excise Tax, “Independent Tax Counsel” shall mean a lawyerno portion of the Total Payments, a certified public accountant with a nationally recognized accounting firmthe receipt of which the Executive has effectively waived in writing, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Companytaken into account.

Parachute Payments. If Independent Tax Counsel any payment or benefit (as that term is defined below) determines that the aggregate including payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any other payments and benefits provided or to be provided to the ) Executive would receive from the Company under this Agreement or any of its subsidiaries or other affiliates or any successors thereto otherwise (“Payment”) would (i) constitute a “parachute paymentspayment” as defined in within the meaning of Section 280G of the Code Code, and (“Parachute Payments”ii) that would but for this paragraph, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), thenthen the Company shall cause to be determined, except as otherwise provided before any amounts of the Payment are paid to Executive, which of the following two alternative forms of payment shall be paid to Executive: (A) payment in full of the entire amount of the Payment (a “Full Payment”), or (B) payment of only a part of the Payment so that Executive receives the largest payment possible without the imposition of the Excise Tax (a “Reduced Payment”). A Full Payment shall be made in the next sentence, such Parachute Payments shall be reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines event that the amount received by Executive on a net after-tax basis is greater than what would receive in the aggregate greater payments and benefits be received by Executive on an after a net after-tax basis if the Parachute Payments Reduced Payment were not reduced pursuant to this Section 5(d)made, then no such reduction otherwise a Reduced Payment shall be made. The determination of which If a Reduced Payment is made, (i) the Payment shall be paid only to the extent permitted under the Reduced Payment alternative, and Executive shall have no rights to any additional payments or and/or benefits constituting the Payment, and (ii) reduction in payments and/or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits occur in the following order order: (1A) reduction of cash payments not subject to Section 409A payments; (B) cancellation of accelerated vesting of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and accelerationOptions; and (4C) non-cash forms reduction of benefitsother benefits paid to Executive. To The independent registered public accounting firm engaged by the extent any payment is Company for general audit purposes as of the day prior to the effective date of a transaction that results in Payments shall make all determinations required to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) 6. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. Any good faith determinations of the accounting firm made hereunder shall be final final, binding and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial conclusive upon the Company and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the CompanyExecutive.

Parachute Payments. (a) If Independent Tax Counsel (as that term is defined below) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any other payments and benefits provided or to be provided to the Executive from the Company or any of its subsidiaries Subsidiaries or other affiliates Affiliates or any successors thereto constitute “"parachute payments” " as defined in Section 280G of the Internal Revenue Code of 1986, as amended (“the "Code") (or any successor provision thereto) ("Parachute Payments”") that would be subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then, except as otherwise provided in the next sentence, such Parachute Payments shall be reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d7(a), then no such reduction shall be made. The determination ; provided, however, that in such case the provisions of which payments or benefits Sections 7(b)(i) and 7(b)(ii) shall not be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological orderoperative. The determination of the Independent Tax Counsel under this Section 5(dsubsection (a) shall be final and binding on all parties hereto. The determination of which payments or benefits to reduce in order to avoid the Excise Tax shall be determined in the sole discretion of the Executive; provided, however, that unless the Executive gives written notice to the Company specifying the order to effectuate the limitations described above within ten (10) days of the Independent Tax Counsel’s determination to make such reduction, the Company shall first reduce those payments or benefits that will cause a dollar-for-dollar reduction in total Parachute Payments, and then by reducing other Parachute Payments, to the extent possible, in reverse order beginning with payments or benefits that are to be paid the farthest in time from the date the reduction is to be made. Any notice given by the Executive pursuant to the preceding sentence, unless prohibited by law, shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive's rights and entitlement to any benefits or compensation. For purposes of this Section 5(d7(a), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company."

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines that the aggregate payments and benefits provided any payment or to be provided to the Executive benefit you would receive pursuant to this Agreement, and any other payments and benefits provided or to be provided to the Executive a Change of Control from the Company or any of its subsidiaries or other affiliates or any successors thereto otherwise (“Payment”) would (i) constitute a “parachute paymentspayment” as defined in within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Parachute PaymentsCode”), and (ii) that would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, except as otherwise provided in the next sentence, then such Parachute Payments Payment shall be reduced to the extent Reduced Amount. The “Reduced Amount” shall be either (x) the Independent Tax Counsel shall determine is necessary (but not below zero) so largest portion of the Payment that would result in no portion thereof shall of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in your receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive a reduction in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided constituting “parachute payments” is necessary so that the Independent Tax Counsel Payment equals the Reduced Amount and none of the parachute payments are non-qualified deferred compensation subject to Section 409A of the Code, then the reduction shall reduce occur in the manner you elect in writing prior to the date of payment. If any parachute payment constitutes non-qualified deferred compensation subject to Section 409A or eliminateyou fail to elect an order, as then the case may be, payments or benefits reduction shall occur in the following order order: first a pro rata reduction of (1i) cash payments subject to Section 409A of the Code as non-qualified deferred compensation and (ii) cash payments not subject to Section 409A of the Code; , and second a pro rata cancellation of accelerated vesting of (2i) cash payments equity-based compensation subject to Section 409A of the Code; Code as non-qualified deferred compensation and (3ii) equity-based compensation not subject to Section 409A of the Code with, in each case, the cancellation of accelerated vesting being applied first to vesting that is not subject to Treasury Regulation section 1.280G-1 Q/A 24(c) and subsequently to vesting that is subject to such section, . Reduction in either cash payments or equity compensation benefits shall be made pro rata between and acceleration; among benefits which are subject to Section 409A of the Code and (4) non-cash forms benefits which are exempt from Section 409A of benefitsthe Code. To The accounting firm engaged by the extent any payment is Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological orderhereunder. The Any good faith determination of the Independent Tax Counsel under this Section 5(d) accounting firm made hereunder shall be final final, binding and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial conclusive upon the Company and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Companyyou.

Parachute Payments. If Independent Tax Counsel (as a) Notwithstanding anything to the contrary in this Agreement or otherwise, in the event that term is defined below) determines that the aggregate payments and benefits provided any payment or benefit received or to be provided received by the Executive in connection with a Change in Control or the Executive’s Separation from Service (whether pursuant to the Executive pursuant to terms of this Agreement, and Agreement or any other payments and benefits provided plan, policy, arrangement or to be provided to the Executive from agreement maintained or entered into by the Company (or any of its subsidiaries Affiliates or other affiliates successors) or any successors thereto constitute “parachute payments” as defined Person whose actions result in Section 280G of a Change in Control (or any Person affiliated with such Person)) (all such payments and benefits, the Code (“Parachute Payments”) that would be subject (in whole or in part) to the an excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), then, except as otherwise provided in then the next sentence, such Parachute Payments shall either be (i) reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that the present value of the Parachute Payments is one dollar less than three times the Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) so that no portion thereof of the Parachute Payments shall be subject to the Excise Tax. If Independent Tax Counsel determines that or (ii) paid in full, whichever produces the better net after-tax position to the Executive would receive in (taking into account the aggregate greater payments Excise Tax and benefits on an after tax basis if any other applicable taxes). (b) The reduction of the Parachute Payments were not reduced pursuant to this contemplated in Section 5(d5.03(a) above shall be implemented by determining the Parachute Payment Ratio (as defined below), as determined in good faith by the Company (or its successor), for each Parachute Payment and then no reducing the Parachute Payments in order beginning with the Parachute Payment with the highest Parachute Payment Ratio. For Parachute Payments with the same Parachute Payment Ratio, such reduction shall be made. The determination of which payments or benefits Parachute Payments shall be reduced to avoid based on the Excise Tax shall be made by time of payment of such Parachute Payments, with amounts having later payment dates being reduced first. For Parachute Payments with the Independent Tax Counselsame Parachute Payment Ratio and the same time of payment, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments such Parachute Payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(don a pro rata basis (but not below zero) shall be final and binding on all parties heretoprior to reducing Parachute Payments with a lower Parachute Payment Ratio. For purposes of this Section 5(d)hereof, the term “Independent Tax CounselParachute Payment Ratio” shall mean a lawyerfraction, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in (i) the area numerator of executive compensation tax law, who shall be selected by which is the Boardvalue of the applicable Parachute Payment (as calculated for purposes of Section 280G of the Code), and whose fees and disbursements shall be paid by (ii) the Company.denominator of which is the intrinsic (i.e., economic) value of such Parachute Payment. ARTICLE 6

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines that Notwithstanding any other provision of this Agreement to the aggregate contrary, if any of the payments and or benefits provided or to be provided by the Company to you pursuant to the Executive pursuant to terms of this Agreement, and any other Agreement or otherwise (“Covered Payments”) may constitute parachute payments and benefits provided or to be provided to the Executive from the Company or any of its subsidiaries or other affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the Code (“Parachute Payments”) that would within the meaning of Section 280G of the Code, and would, but for this Section 6, be subject to the excise tax imposed by under Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), thenthen prior to making the Covered Payments, except as otherwise provided in the next sentence, such Parachute Payments a calculation shall be reduced made comparing (i) the Net Benefit (as defined below) to you of the Covered Payments after payment of the Excise Tax to (ii) the Net Benefit to you if the Covered Payments are limited to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be to avoid being subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis Only if the Parachute amount calculated under (i) above is less than the amount under (ii) above will the Covered Payments were not be reduced pursuant to this Section 5(d)the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the Excise Tax. “Net Benefit” shall mean the present value of the Covered Payments net of all federal, then no state, local, foreign income, employment and excise taxes. Any such reduction shall be made. The determination made in accordance with Section 409A of the Code and the following: (i) the Covered Payments which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments do not constitute nonqualified deferred compensation subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and accelerationCode shall be reduced first; and (4ii) non-all other Covered Payments shall then be reduced as follows: (A) cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(dbefore non-cash payments; and (B) payments to be made on a later payment date shall be final and binding reduced before payments to be made on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Companyan earlier payment date.

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines that the aggregate payments and benefits provided or to be provided Notwithstanding anything contained in this Agreement to the contrary, the Company, based on the advice of its legal or tax counsel, shall compute whether there would be any “excess parachute payments” payable to Executive, within the meaning of Section 280G of the Code, taking into account the total ‘‘parachute payments,” within the meaning of Section 280G of the Code, payable to Executive pursuant to by the Company under this Agreement, Agreement and any other payments and benefits provided plan, agreement or to otherwise. If there would be provided to any excess parachute payments, the Executive from Company, based on the Company or any advice of its subsidiaries legal or other affiliates or any successors thereto constitute “tax counsel, shall compute the net after-tax proceeds related to such parachute payments, taking into account the excise tax imposed by Section 4999 of the Code, as if (i) such parachute payments were reduced, but not below zero, such that the total parachute payments payable to Executive would not exceed three (3) times the “base amount” as defined in Section 280G of the Code Code, less One Dollar (“Parachute Payments”$1.00), or (ii) that the full amount of such parachute payments were not reduced. If reducing the amount of such parachute payments otherwise payable would result in a greater after-tax amount to Executive, such reduced amount shall be subject paid to Executive and the remainder shall be forfeited. If not reducing such parachute payments otherwise payable would result in a greater after-tax amount to Executive, then such parachute payments shall not be reduced. If such parachute payments are reduced pursuant to the excise tax imposed foregoing, they will be reduced in the following order: first, by Section 4999 reducing any cash severance payments, then by reducing any fringe or other severance benefits, and finally by reducing any payments or benefits otherwise payable with respect to, or measured by, the Company’s common stock (including without limitation by eliminating accelerated vesting, in each case starting with the installment or tranche last eligible to become vested absent the occurrence of the Code Change in Control (the “Excise Tax”), then, except as otherwise provided defined in the next sentenceCompany’s 2014 Equity Incentive Plan)). Notwithstanding the foregoing, such Parachute Payments shall be reduced to the extent the Independent Tax Counsel parties agree that any of the foregoing amounts are not parachute payments, such amounts shall determine is necessary (but not below zerobe reduced. To the extent the parties cannot agree as to whether any of the payments are in fact parachute payments, the parties will designate, by mutual agreement, an unrelated third-party with tax expertise to make the determination. Notwithstanding any provision of this Section 3.2(d) so that to the contrary, no portion thereof amount shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced reduction pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced 3.2(d) to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent the reduction would result in a violation of any payment is to be made over time (e.g., in installments, etcapplicable law.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company.

Parachute Payments. If Independent Tax Counsel (as that term is defined belowa) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to Notwithstanding any other provision in this Agreement, and in the event any other payments and or benefits provided Executive receives or would become entitled to be provided to receive from the Executive from Company, any person whose actions result in a Change in Control or any person affiliated with the Company or any of its subsidiaries or other affiliates or any successors thereto such person (in the aggregate, the “Payments”) would (i) constitute a “parachute paymentspayment” as defined in within the meaning of Section 280G of the Code Code, and (“Parachute Payments”ii) that would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision (the “Excise Tax”), then, except as otherwise provided in then the next sentence, such Parachute amount of the Payments shall be reduced equal to either (x) the largest portion of the Payments that would result in no portion of the Payments being subject to the extent Excise Tax (the Independent “Reduced Amount”), or (y) the full amount of the Payments, whichever of the foregoing amounts, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax Counsel shall determine is necessary (but not below zero) so all computed at the highest marginal rate applicable to individuals in the year in which the Payments are to be made), results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payments notwithstanding that no all or some portion thereof shall of the Payments may be subject to the Excise Tax. If Independent Tax Counsel determines a reduction in the Payments is required so that the Executive would receive in amount of the aggregate greater payments and benefits on an after tax basis if Payments equals the Parachute Reduced Amount, the Payments were not reduced pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order order: (1) reduction of cash payments not subject Payments otherwise payable to Executive that are exempt from Section 409A of the Code; (2) cash payments subject to cancellation of accelerated vesting of equity awards (other than stock options) that are exempt from Section 409A of the Code; (3) equity-based cancellation of accelerated vesting of stock options that are exempt from Section 409A of the Code; (4) reduction of any other payments and accelerationbenefits otherwise payable to Executive that are exempt from Section 409A of the Code; and (45) nonreduction of any other benefits and payments otherwise payable to Executive on a pro-cash forms rata basis or such other manner that complies with Section 409A of benefitsthe Code, as determined by the Company. To the extent any payment If acceleration of vesting of Executive’s stock options or other equity awards is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company.pursuant to clauses

Parachute Payments. If Independent Tax Counsel (as Notwithstanding any other provision of this Section 3, if it is determined that term is defined below) determines that part or all of the aggregate payments and compensation or benefits provided or to be provided paid to the Executive pursuant Employee under this Agreement in connection with the Employee's Severance Termination , or under any other plan, arrangement or agreement, constitutes a "parachute payment" under section 280G(b)(2) of the Internal Revenue Code of 1986, as amended, then the amount constituting a parachute payment that would otherwise be payable to this Agreementor for the benefit of the Employee first shall be deferred (to the greatest extent permitted by such applicable law), and any other payments and benefits provided or to be provided to the Executive from the Company or any of its subsidiaries or other affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the Code (“Parachute Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)extent not so deferred, then, except as otherwise provided in the next sentence, such Parachute Payments shall be reduced (if required under such applicable law), but only to the extent necessary, so that such amount would not constitute a parachute payment. Any determination that a payment constitutes a parachute payment shall be made as promptly as practicable following the Independent Tax Counsel shall determine is necessary Employee's termination of employment (but not below zerolater than the date payment is required under subsection (a) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to of this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made Section) by the Independent Tax Counselindependent public accountants that audited the Company's financial statements for the fiscal year preceding the year in which the Employee's employment was terminated, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The whose determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on in all parties heretocases. For purposes Unless the Employee is given notice that a payment (or payments) will constitute a parachute payment prior to the earlier of (1) receipt of such payments or (2) the tenth business day following his or her Severance Termination, no payment (or payments) shall be deemed to constitute a parachute payment. If the determination made pursuant to this Section 5(d), “Independent Tax Counsel” shall mean subsection would result in a lawyerdeferral (to the greatest extent permitted under such applicable law) and to the extent not so deferred, a certified public accountant with a nationally recognized accounting firmreduction (to the minimum extent required by such applicable law) of the payments that would otherwise be paid to the Employee, the Employee may elect, in his sole discretion, which and how much of any particular entitlement shall be so deferred or reduced (giving effect to any payments and benefits that may have been received prior to such termination) and shall advise the Company in writing of his election within 10 days of the determination of the deferral or reduction in payments. If no such election is made by the Employee within such 10-day period, the Company shall determine which and how much of any entitlement shall be deferred (to the greatest extent permitted under such applicable law) and, to the extent not so deferred, reduced (to the extent required under such applicable law) and shall notify the Employee promptly of such determination. The Company shall (or shall cause the applicable SPAR Affiliate to) pay to, or a compensation consultant with a nationally recognized actuarial distribute to or for the benefit of, the Employee such amounts as are then due to the Employee under this Agreement and benefits consulting firm with expertise shall timely pay to, or distribute to or for the benefit of, the Employee in the area of executive compensation tax law, who shall be selected by future such amounts as become due to the Board, and whose fees and disbursements shall be paid by the CompanyEmployee under this Agreement.

Parachute Payments. If Independent Tax Counsel (as that term is defined belowa) determines that the aggregate payments and benefits provided or to be provided Anything in this Agreement to the Executive contrary notwithstanding, in the event that a Change in Control occurs and it shall be determined that any payment or distribution by the Company, the Bank or its Affiliates to or for the benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this AgreementAgreement or otherwise, would constitute an “excess parachute payment” within the meaning of Code section 280G (each such payment, a “Parachute Payment”) and would result in the imposition on the Employee of an excise tax under Code section 4999, then, in addition to any other payments and benefits provided to which the Employee is entitled under this Agreement or to otherwise, the Employee shall be provided paid an amount in cash equal to the Executive from sum of the Company or excise taxes payable by the Employee by reason of receiving Parachute Payments plus the amount necessary to place the Employee in the same after-tax position (taking into account any of its subsidiaries and all applicable federal, state and local excise, income or other affiliates or taxes at the highest possible applicable rates on such Parachute Payments (including, without limitation, any successors thereto constitute payments under this subparagraph 11.2(a)) as if no excise taxes had been imposed with respect to Parachute Payments (the “parachute payments” as defined Parachute Gross-up”). In no event shall a Parachute Gross-up be payable under this subparagraph 11.2 in Section 280G the absence of a Change in Control. Any Parachute Gross-up otherwise required by this subparagraph 11.2(a) shall not be made later than the time of the corresponding payment or benefit hereunder giving rise to the underlying Code section 4999 excise tax (“Parachute Payments”) that would be subject to the extent such determination has been made prior to such time), even if the payment of the excise tax imposed by Section 4999 of is not required under the Code (the “Excise Tax”), then, except as until a later time. Any Parachute Gross-up otherwise provided in the next sentence, such Parachute Payments required under this subparagraph 11.2(a) shall be reduced to the extent the Independent Tax Counsel shall determine is necessary (but made whether or not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel are payable under this Section 5(d) Agreement and whether or not the Employee’s employment with the Bank shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Companyhave been terminated.

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines that the aggregate payments and benefits provided or to be provided Notwithstanding anything in this Agreement to the Executive pursuant to this Agreementcontrary, and any other payments and benefits provided or to be provided to if the Executive from is a “disqualified individual” within the Company or meaning set forth under Treasury Regulation Section 1.280G-1, Q/A-15, as determined by the Company, then any payment under this Agreement that constitutes an “excess parachute payment” within the meaning of its subsidiaries or other affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the Code (an “Excess Parachute PaymentsPayment”), shall be expressly conditioned upon disclosure to and approval by the Company’s stockholders in compliance with Treasury Regulation Section 1.280G-1, Q/A-7 (the “Stockholder Approval Exemption Requirements”). The Board agrees to submit to the Company’s stockholders and to recommend their approval of, (i) the potential payments payable upon a termination of employment under this Agreement, (ii) the potential payments payable to Executive under the Company Transaction Management Incentive Plan, and (iii) any other payment that would, absent such stockholder approval, constitute an Excess Parachute Payment, in accordance with the Stockholder Approval Exemption Requirements. If such stockholder approval is not obtained, the amount of the payments shall be reduced as necessary so that no Excess Parachute Payment shall be paid. To the extent that the Company has equity securities that are readily tradable on an established securities market or otherwise, so as to render the Stockholder Approval Exemption Requirements referenced above unavailable, then any payment that the Executive is entitled to receive under this Agreement or any other agreement, plan or arrangement that would (if paid), either alone or in the aggregate with other payments or benefits payable to the Executive, constitute an Excess Parachute Payment, will either (i) be delivered in full, or (ii) be limited to the minimum extent necessary to ensure that no portion thereof, along with any other payments or benefits payable to the Executive, will fail to be tax-deductible to the Company by reason of Section 280G of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state or local income and employment taxes and the excise tax imposed under Section 4999 of the Code, results in the receipt by the Executive, on an after-tax basis, of the greatest amount of payments under this Agreement or any other agreement, plan or arrangement, notwithstanding that all or some portion of such payments may be subject to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”), then, except as otherwise provided in the next sentence, such Parachute Payments shall Code. All determinations required to be reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax made hereunder shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant consultation with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company’s independent public accounting firm and at the Company’s expense.

Parachute Payments. If Independent Payments under this Agreement shall be made without regard to whether the deductibility of such payments (or any other payments) would be limited or precluded by section 280G of the Code and without regard to whether such payments would subject the Executive to the federal excise tax levied on certain “excess parachute payments” under section 4999 of the Code; provided, however, that if the Total After-Tax Counsel Payments (as defined below) would be increased by the limitation or elimination of any amount payable under this Agreement, then amounts payable under this Agreement will be reduced to the extent necessary to maximize the Total After-Tax Payments. The determination of whether payments under this Agreement are required to be reduced in accordance with the preceding sentence will be made at the Company’s expense by an independent, certified public accountant selected by the Executive and reasonably acceptable to the Company; provided, however, that if reduction is required by this Section 11.7, payments under this Agreement shall be reduced on a nondiscretionary basis in such a way as to minimize the reduction in the economic value deliverable to the Executive, but where more than one payment has the same value for this purpose and they are payable at different times, they will be reduced on a pro-rata basis. Further, if such reduction does occur, only amounts payable under this Agreement shall be reduced pursuant to this Section 11.7. In the event of any underpayment or overpayment under this Agreement (as determined after the application of this Section 11.7), the amount of such underpayment or overpayment will be immediately paid by the Company to the Executive or refunded by the Executive to the Company, as the case may be. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined belowin section 280G(b)(2) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any other payments and benefits provided or to be provided to the Executive from the Company or any of its subsidiaries or other affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the Code Code) made to or for the benefit of Executive (“Parachute Payments”) that would be subject to whether made hereunder or otherwise), after reduction for all applicable federal taxes (including, without limitation, the excise tax imposed by Section described in section 4999 of the Code (the “Excise TaxCode).”), then, except as otherwise provided in the next sentence, such Parachute Payments shall be reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company.

Parachute Payments. If Independent Tax Counsel any payment or benefit (as that term is defined below) determines that the aggregate including payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any other payments and benefits provided or to be provided to the ) that Executive would receive in connection with a Change in Control from the Company or any of its subsidiaries or other affiliates or any successors thereto otherwise (“Transaction Payment”) would (i) constitute a “parachute paymentspayment” as defined in within the meaning of Section 280G of the Code Code, and (“Parachute Payments”ii) that would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), thenthen the Company shall cause to be determined, except as otherwise provided before any amounts of the Transaction Payment are paid to Service Provider, which of the following two alternative forms of payment would result in Service Provider’s receipt, on an after-tax basis, of the next sentence, such Parachute Payments shall be reduced to greater amount of the extent Transaction Payment notwithstanding that all or some portion of the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall Transaction Payment may be subject to the Excise Tax. If Independent Tax Counsel determines that : (1) payment in full of the Executive would receive in entire amount of the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(dTransaction Payment (a “Full Payment”), then no such reduction shall be made. The determination or (2) payment of which payments or benefits shall be reduced to avoid only a part of the Transaction Payment so that Service Provider receives the largest payment possible without the imposition of the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.a “Reduced Payment”), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean determining whether to make a lawyer, a certified public accountant with a nationally recognized accounting firm, Full Payment or a compensation consultant with Reduced Payment, the Company shall cause to be taken into account all applicable federal, state and local income and employment taxes and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a nationally recognized actuarial deduction of such state and local taxes). If a Reduced Payment is made, (x) Executive shall have no rights to any additional payments and/or benefits consulting firm with expertise constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the area manner that results in the greatest economic benefit to Executive as determined in this paragraph. If more than one method of executive compensation tax lawreduction will result in the same economic benefit, who the portions of the Transaction Payment shall be selected by reduced pro rata. Unless Executive and the BoardCompany otherwise agree in writing, and whose fees and disbursements any determination required under this section shall be paid made in writing by the Company.’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this section, the Accountants may make reasonable assumptions and approximations

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines that the aggregate payments and benefits provided or to be provided Notwithstanding anything contained in this Agreement to the contrary, the Company, based on the advice of its legal or tax counsel, shall compute whether there would be any “excess parachute payments” payable to Executive, within the meaning of Section 280G of the Code, taking into account the total ‘‘parachute payments,” within the meaning of Section 280G of the Code, payable to Executive pursuant to by the Company under this Agreement, Agreement and any other payments and benefits provided plan, agreement or to otherwise. If there would be provided to any excess parachute payments, the Executive from Company, based on the Company or any advice of its subsidiaries legal or other affiliates or any successors thereto constitute “tax counsel, shall compute the net after-tax proceeds related to such parachute payments, taking into account the excise tax imposed by Section 4999 of the Code, as if (i) such parachute payments were reduced, but not below zero, such that the total parachute payments payable to Executive would not exceed three (3) times the “base amount” as defined in Section 280G of the Code Code, less One Dollar (“Parachute Payments”$1.00), or (ii) that the full amount of such parachute payments were not reduced. If reducing the amount of such parachute payments otherwise payable would result in a greater after-tax amount to Executive, such reduced amount shall be subject paid to Executive and the remainder shall be forfeited as of the date Executive’s employment terminates. If not reducing such parachute payments otherwise payable would result in a greater after-tax amount to Executive, then such parachute payments shall not be reduced. If such parachute payments are reduced pursuant to the excise tax imposed foregoing, they will be reduced in the following order: first, by Section 4999 reducing any cash severance payments, then by reducing any fringe or other severance benefits, and finally by reducing any payments or benefits otherwise payable with respect to, or measured by, the Company’s common stock (including without limitation by eliminating accelerated vesting, in each case starting with the installment or tranche last eligible to become vested absent the occurrence of the Code (Change in Control). Notwithstanding the “Excise Tax”)foregoing, then, except as otherwise provided in the next sentence, such Parachute Payments shall be reduced to the extent the Independent Tax Counsel parties agree that any of the foregoing amounts are not parachute payments, such amounts shall determine is necessary (but not below zerobe reduced. To the extent the parties cannot agree as to whether any of the payments are in fact parachute payments, the parties will designate, by mutual agreement, an unrelated third-party with tax expertise to make the determination. Notwithstanding any provision of this Section 3.2(d) so that to the contrary, no portion thereof amount shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced reduction pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced 3.2(d) to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent the reduction would result in a violation of any payment is to be made over time (e.g., in installments, etcapplicable law.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company.

Parachute Payments. If Independent Tax Counsel Notwithstanding any other provision of this Section 9, in the event the Company determines, based upon the advice of the independent public accountants for the Company, that part or all of the consideration, compensation or benefits to be paid to Executive under this Agreement constitute ‘‘parachute payments’’ under Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended, then, if the value of such parachute payments for 280G purposes, singularly or together with the aggregate value of any consideration, compensation or benefits to be paid to Executive under any other plan, arrangement or agreement which constitute ‘‘parachute payments’’ (collectively, the ‘‘Parachute Amount’’) exceeds 2.99 times the Executive’s ‘‘base amount,’’ as defined in Section 280G(b)(3) of the Code (the ‘‘Executive Base Amount’’), the amounts constituting ‘‘parachute payments’’ which would otherwise be payable to or for the benefit of Executive shall be reduced to the extent necessary so that term the Parachute Amount is defined below) determines equal to 2.99 times the Executive Base Amount (the ‘‘Reduced Amount’’). In the event of a reduction of the payments that would otherwise be paid to Executive, except for the application of this Section 9(g), then the Company may elect which and how much of any particular entitlement shall be eliminated or reduced and shall notify Executive promptly of such election; provided, however that the aggregate payments reduction shall be no more than as set forth in the preceding sentence of this Section 9(g). Within ten (10) days following such election, the Company shall pay to Executive such amounts as are then due under this Agreement and benefits provided or shall pay to be provided to Executive in the Executive pursuant to future such amounts as become due under this Agreement, and any other payments and benefits provided or to be provided to . As a result of the Executive from uncertainty in the Company or any application of its subsidiaries or other affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the Code at the time of a determination hereunder, it is possible that payments will be made by the Company which should not have been made (“Parachute Payments”‘‘Overpayment’’) or that would be subject to additional payments which are not made by the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, except as otherwise provided in the next sentence, such Parachute Payments shall be reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced Company pursuant to this Section 5(d9(g) should have been made (‘‘Underpayment’’). In the event of a final determination by the Internal Revenue Service, then no or a final determination by a court of competent jurisdiction, that an Overpayment has been made, any such reduction Overpayment shall be made. The determination of treated for all purposes as a loan to Executive which payments or benefits Executive shall be reduced repay to avoid the Excise Tax shall be made by Company together with interest at the Independent Tax Counsel, applicable federal rate provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits for in the following order (1Section 7872(f)(2) cash payments not subject to Section 409A of the Code; (2. In the event of a final determination by the Internal Revenue Service, a final determination by a court of competent jurisdiction or a change in the provisions of the Code or regulations pursuant to which an Underpayment arises under this Agreement, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive, together with interest at the applicable federal rate provided for in Section 7872(f)(2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company.

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines In the event that the aggregate Employee shall become entitled to payments and and/or benefits provided by this Agreement or to be provided any other amounts in the “nature of compensation” (whether pursuant to the Executive pursuant to terms of this AgreementAgreement or any other plan, arrangement or agreement with the Employer, any person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”) or any person affiliated with the Employer or such person) as a result of such change in ownership or effective control (collectively the “Employer Payments”), and any other payments and benefits provided or to be provided to the Executive from the Company or any of its subsidiaries or other affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the Code (“Parachute Payments”) that would if such Employer Payments will be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority) the Employer shall pay to the Employee at the time specified in subsection (d) below an additional amount (the “Gross-up Payment”) such that the net amount retained by the Employee, after deduction of any Excise Tax”Tax on the Employer Payments and any U.S. federal, state, and for local income or payroll tax upon the Gross-up Payment provided for by this paragraph (a), thenbut before deduction for any U.S. federal, except as otherwise provided in state, and local income or payroll tax on the next sentenceEmployer Payments, such Parachute Payments shall be reduced equal to the extent Employer Payments. For purposes of determining whether any of the Independent Tax Counsel shall determine is necessary Employer Payments and Gross-up Payments (but not below zerocollectively the “Total Payments”) so that no portion thereof shall will be subject to the Excise Tax and the amount of such Excise Tax. If Independent Tax Counsel determines that , (x) the Executive would receive Total Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Code Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that, in the aggregate greater payments opinion of the Employer’s independent certified public accountants appointed prior to any change in ownership (as defined under Code Section 280G(b)(2)) or tax counsel selected by such accountants (the “Accountants”) such Total Payments (in whole or in part) either do not constitute “parachute payments,” represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the “base amount” or are otherwise not subject to the Excise Tax, and (y) the value of any non-cash benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d), then no such reduction or any deferred payment or benefit shall be madedetermined by the Accountants in accordance with the principles of Section 280G of the Code. The determination For purposes of which payments or benefits determining the amount of the Gross-up Payment, the Employee shall be reduced deemed to avoid pay U.S. federal income taxes at the highest marginal rate of U.S. federal income taxation in the calendar year in which the Gross-up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Employee’s residence for the calendar year in which the Employer Payment is to be made, net of the maximum reduction in U.S. federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. In the event that the Excise Tax shall be made is subsequently determined by the Independent Tax CounselAccountants to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, provided the Employee shall repay to the Employer, at the time that the Independent amount of such reduction in Excise Tax Counsel shall reduce is finally determined, the portion of the prior Gross-up Payment attributable to such reduction (plus the portion of the Gross-up Payment attributable to the Excise Tax and U.S. federal, state and local income tax imposed on the portion of the Gross-up Payment being repaid by the Employee if such repayment results in a reduction in Excise Tax or eliminatea U.S. federal, as state and local income tax deduction), plus interest on the case may be, payments or benefits amount of such repayment at the rate provided in the following order (1Section 1274(b)(2)(B) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A . Notwithstanding the foregoing, in the event any portion of the Code; Gross-up Payment to be refunded to the Employer has been paid to any U.S. federal, state and local tax authority, repayment thereof (3and related amounts) equity-based payments shall not be required until actual refund or credit of such portion has been made to the Employee, and acceleration; and (4) non-cash forms of benefitsinterest payable to the Employer shall not exceed the interest received or credited to the Employee by such tax authority for the period it held such portion. To the extent the foregoing provisions shall be deemed to create a loan of a personal nature in violation of Section 402 of the Xxxxxxxx-Xxxxx Act of 2002, the provision for repayment shall be null and void. The Employee and the Employer shall mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if the Employee’s claim for refund or credit is denied. In the event that the Excise Tax is later determined by the Accountants or the Internal Revenue Service to exceed the amount taken into account hereunder at the time the Gross-up Payment is made (including by reason of any payment is to the existence or amount of which cannot be made over determined at the time (e.g., in installments, etc.of the Gross-up Payment), then the payments Employer shall be reduced make an additional Gross-up Payment in reverse chronological orderrespect of such excess (plus any interest or penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The determination of the Independent Tax Counsel under this Section 5(dGross-up Payment or portion thereof provided for in subsection (c) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements above shall be paid not later than the 30 th day following an event occurring which subjects the Employee to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Employer shall pay to the Employee on such day an estimate, as determined in good faith by the CompanyAccountants, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to subsection (c) hereof, as soon as the amount thereof can reasonably be determined, but in no event later than the ninetieth day after the occurrence of the event subjecting the Employee to the Excise Tax. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Employer to the Employee, payable on the fifth day after demand by the Employer (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). To the extent the foregoing provision shall be deemed to create a loan of a personal nature in violation of Section 402 of the Xxxxxxxx-Xxxxx Act of 2002, the provision for repayment shall be null and void.

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines In the event that the aggregate Employee shall become entitled to payments and and/or benefits provided by this Agreement or to be provided any other amounts in the “nature of compensation” (whether pursuant to the Executive pursuant to terms of this AgreementAgreement or any other plan, arrangement or agreement with the Employer, any person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”) or any person affiliated with the Employer or such person) as a result of such change in ownership or effective control (collectively the “Employer Payments”), and any other payments and benefits provided or to be provided to the Executive from the Company or any of its subsidiaries or other affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the Code (“Parachute Payments”) that would if such Employer Payments will be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority) the Employer shall pay to the Employee at the time specified in subsection (d) below an additional amount (the “Gross-up Payment”) such that the net amount retained by the Employee, after deduction of any Excise Tax”Tax on the Employer Payments and any U.S. federal, state, and for local income or payroll tax upon the Gross-up Payment provided for by this paragraph (a), thenbut before deduction for any U.S. federal, except as otherwise provided in state, and local income or payroll tax on the next sentenceEmployer Payments, such Parachute Payments shall be reduced equal to the extent Employer Payments. For purposes of determining whether any of the Independent Tax Counsel shall determine is necessary Employer Payments and Gross-up Payments (but not below zerocollectively the “Total Payments”) so that no portion thereof shall will be subject to the Excise Tax and the amount of such Excise Tax. If Independent Tax Counsel determines that , (x) the Executive would receive Total Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Code Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that, in the aggregate greater payments opinion of the Employer’s independent certified public accountants appointed prior to any change in ownership (as defined under Code Section 280G(b)(2)) or tax counsel selected by such accountants (the “Accountants”) such Total Payments (in whole or in part) either do not constitute “parachute payments,” represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the “base amount” or are otherwise not subject to the Excise Tax, and (y) the value of any non-cash benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d), then no such reduction or any deferred payment or benefit shall be madedetermined by the Accountants in accordance with the principles of Section 280G of the Code. The determination For purposes of which payments or benefits determining the amount of the Gross-up Payment, the Employee shall be reduced deemed to avoid pay U.S. federal income taxes at the highest marginal rate of U.S. federal income taxation in the calendar year in which the Gross-up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Employee’s residence for the calendar year in which the Employer Payment is to be made, net of the maximum reduction in U.S. federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. In the event that the Excise Tax shall be made is subsequently determined by the Independent Tax CounselAccountants to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, provided the Employee shall repay to the Employer, at the time that the Independent amount of such reduction in Excise Tax Counsel shall reduce is finally determined, the portion of the prior Gross-up Payment attributable to such reduction (plus the portion of the Gross-up Payment attributable to the Excise Tax and U.S. federal, state and local income tax imposed on the portion of the Gross-up Payment being repaid by the Employee if such repayment results in a reduction in Excise Tax or eliminatea U.S. federal, as state and local income tax deduction), plus interest on the case may be, payments or benefits amount of such repayment at the rate provided in the following order (1Section 1274(b)(2)(B) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A . Notwithstanding the foregoing, in the event any portion of the Code; Gross-up Payment to be refunded to the Employer has been paid to any U.S. federal, state and local tax authority, repayment thereof (3and related amounts) equity-based payments shall not be required until actual refund or credit of such portion has been made to the Employee, and acceleration; and (4) non-cash forms of benefitsinterest payable to the Employer shall not exceed the interest received or credited to the Employee by such tax authority for the period it held such portion. To the extent the foregoing provisions shall be deemed to create a loan of a personal nature in violation of Section 402 of the Xxxxxxxx-Xxxxx Act of 2002, the provision for repayment shall be null and void. The Employee and the Employer shall mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if the Employee’s claim for refund or credit is denied. In the event that the Excise Tax is later determined by the Accountants or the Internal Revenue Service to exceed the amount taken into account hereunder at the time the Gross-up Payment is made (including by reason of any payment is to the existence or amount of which cannot be made over determined at the time (e.g., in installments, etc.of the Gross-up Payment), then the payments Employer shall be reduced make an additional Gross-up Payment in reverse chronological orderrespect of such excess (plus any interest or penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The determination of the Independent Tax Counsel under this Section 5(dGross-up Payment or portion thereof provided for in subsection (c) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements above shall be paid not later than the 30th day following an event occurring which subjects the Employee to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Employer shall pay to the Employee on such day an estimate, as determined in good faith by the Company.Accountants, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to subsection (c) hereof, as soon as the amount thereof can reasonably be determined, but in no event later than the ninetieth day after the occurrence of the event subjecting the Employee to the Excise Tax. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Employer to the Employee, payable on the fifth day after demand by the Employer (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). To the extent the foregoing provision shall be deemed to create a loan of a personal nature in violation of Section 402 of the Xxxxxxxx-Xxxxx Act of 2002, the provision for repayment shall be null and void. In the event of any controversy with the Internal Revenue Service (or other taxing authority) with regard to the Excise Tax, the Employee shall permit the Employer to control issues related to the Excise Tax (at its expense), provided that such issues do not potentially materially adversely affect the Employee, but the Employee shall control any other issues. In the event the issues are interrelated, the Employee and the Employer shall in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree the Employee shall make the final determination with regard to the issues. In the event of any conference with any taxing authority as to the Excise Tax or associated income taxes, the Employee shall permit the representative of the Employer to accompany the Employee, and the Employee and the Employee’s representative shall cooperate with the Employer and its representative. The Employer shall be responsible for all charges of the Accountants. The Employer and the Employee shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax covered by this Exhibit A.

Parachute Payments. If Independent Tax Counsel any payment or benefit Executive would receive in connection with a Change of Control or otherwise (as that term is defined below“Payment”) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any other payments and benefits provided or to be provided to the Executive from the Company or any of its subsidiaries or other affiliates or any successors thereto would (i) constitute a “parachute paymentspayment” as defined in within the meaning of Section 280G of the Code Code, and (“Parachute Payments”ii) that would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, except as otherwise provided in the next sentence, then such Parachute Payments Payment shall be reduced to the extent Reduced Amount (as defined below). The “Reduced Amount” shall be either (x) the Independent Tax Counsel shall determine is necessary (but not below zero) so largest portion of the Payment that would result in no portion thereof shall of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive a reduction in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, unless otherwise determined by the Lexmark or the Company no later than two (2) days prior the consummation of the Change of Control, the reduction shall occur in the manner that results in the greatest economic benefit to Executive as determined in this paragraph. If more than one method of reduction will result in the same economic benefit, the portions of the Payment shall be reduced to avoid the Excise Tax shall be made pro rata. The accounting firm engaged by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, Company for general audit purposes as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject day prior to Section 409A the Effective Date of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms Change of benefitsControl shall perform the foregoing calculations. To If the extent any payment accounting firm so engaged by the Company is to be made over time (e.g.serving as accountant or auditor for the individual, in installmentsentity or group effecting the Change of Control, etc.), then the payments Company shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with appoint a nationally recognized accounting firmfirm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within fifteen (15) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. If the accounting firm determines that no Excise Tax is payable with respect to a compensation consultant Payment, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive with a nationally recognized actuarial and benefits consulting an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm with expertise in the area of executive compensation tax law, who made hereunder shall be selected by final, binding and conclusive upon the Board, Company and whose fees and disbursements shall be paid by the CompanyExecutive.

Parachute Payments. If Independent Tax Counsel (as that term is defined belowherein defined) determines that the aggregate payments and benefits provided or to be provided to the Executive Employee pursuant to this Agreement, and any other payments and benefits provided or to be provided to the Executive Employee from the Company or any of its subsidiaries or other affiliates Affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) (or any successor provision thereto) (“Parachute Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, except as otherwise provided in the next sentence, such Parachute Payments shall be reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive Employee would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d7(a), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) 7 shall be final and binding on all parties hereto. The determination of which payments or benefits to reduce in order to avoid the Excise Tax shall be determined in the sole discretion of the Employee; provided, however, that unless the Employee gives written notice to the Company specifying the order to effectuate the limitations described above within ten (10) days of the Independent Tax Counsel’s determination to make such reduction, the Company shall first reduce those payments or benefits that will cause a dollar-for-dollar reduction in total Parachute Payments, and then by reducing other Parachute Payments, to the extent possible, in reverse order beginning with payments or benefits that are to be paid the farthest in time from the date the reduction is to be made. Any notice given by the Employee pursuant to the preceding sentence, unless prohibited by law, shall take precedence over the provisions of any other plan, arrangement or agreement governing the Employee’s rights and entitlement to any benefits or compensation. For purposes of this Section 5(d)7, “Independent Tax Counsel” shall mean a lawyeran attorney, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive Employee compensation tax law, who shall be selected by the BoardCompany and shall be acceptable to the Employee (the Employee’s acceptance not to be unreasonably withheld), and whose fees and disbursements shall be paid by the Company.

Parachute Payments. If Independent Tax Counsel In the event that any payment or distribution by the Company for the benefit of the Executive (as that term is defined below) determines that the aggregate payments and benefits provided whether paid or to be provided payable or distributed or distributable pursuant to the Executive pursuant to terms of this Agreement, and any other payments and benefits provided or to be provided or, including without limitation, pursuant to the Executive from vesting and acceleration provisions under the Company or any of its subsidiaries or other affiliates or any successors thereto constitute PHH 2005 Equity and Incentive Plan) (a “parachute payments” as defined in Section 280G of the Code (“Parachute PaymentsPayment”) that would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax is hereinafter referred to as the “Excise Tax”), thenthen with the consent of the Executive, except as otherwise provided in the next sentence, such Parachute Payments Severance Benefits shall be reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof of the Payment shall be subject to the Excise Tax but only if, by reason of such reduction, the net after-tax benefit received by the Executive shall exceed the net after-tax benefit that would be received by the Executive if no such reduction was made. The “net after-tax benefit” shall equal the total of all Payments, less the Excise Tax. The Company shall retain a nationally recognized accounting firm (the "Accounting Firm") that is reasonably acceptable to the Executive (which may be, but will not be required to be, the Company's independent auditors) to make a determination of whether the Severance Benefits should be reduced. The Accounting Firm shall submit its determination and detailed supporting calculations to both the Executive and the Company no later than 10 days prior to the date on which the Severance Benefits are to be paid. If the Accounting Firm determines that the Severance Benefits should be reduced and the Executive consents, the Severance Benefits shall be reduced but only to the extent necessary so that no portion of the Payments shall be subject to the Excise Tax, and the Company shall pay such reduced amount to the Executive at the time prescribed by Section 1 of the Agreement. If Independent Tax Counsel the Accounting Firm determines that none of the Executive would receive in the aggregate greater payments and benefits on an Payments, after tax basis if the Parachute Payments were not reduced taking into account any reduction pursuant to this Section 5(d)3, then no constitutes a “parachute payment” within the meaning of Section 280G of the Code, it will, at the same time as it makes such reduction shall be madedetermination, furnish the Executive and the Company an opinion that the Executive has substantial authority not to report any Excise Tax. The determination Executive and the Company shall each provide the Accounting Firm access to and copies of which payments any books, records, and documents in the possession of the Executive or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminateCompany, as the case may be, payments or benefits reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the following order (1) cash payments not subject to Section 409A preparation and issuance of the Code; (2) cash payments subject to determinations and calculations contemplated by this Section 409A 3. The fees and expenses of the Code; (3) equity-based payments Accounting Firm for its services in connection with the determinations and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments calculations contemplated by this Section 3 shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid borne by the Company.

Parachute Payments. If Independent Tax Counsel (as a) Notwithstanding anything to the contrary in this Agreement or otherwise, in the event that term is defined below) determines that the aggregate payments and benefits provided any payment or benefit received or to be provided received by the Executive in connection with a Change in Control or the Executive's Separation from Service (whether pursuant to the Executive pursuant to terms of this Agreement, and Agreement or any other payments and benefits provided plan, policy, arrangement or to be provided to the Executive from agreement maintained or entered into by the Company (or any of its subsidiaries Affiliates or other affiliates successors) or any successors thereto constitute “parachute payments” as defined Person whose actions result in Section 280G of a Change in Control (or any Person affiliated with such Person)) (all such payments and benefits, the Code (“"Parachute Payments”") that would be subject (in whole or in part) to the an excise tax imposed by under Section 4999 of the Code (the “"Excise Tax”"), then, except as otherwise provided in then the next sentence, such Parachute Payments shall either be (i) reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that the present value of the Parachute Payments is one dollar less than three times the Executive's "base amount" (as defined in Section 280G(b)(3) of the Code) so that no portion thereof of the Parachute Payments shall be subject to the Excise Tax. If Independent Tax Counsel determines that or (ii) paid in full, whichever produces the better net after-tax position to the Executive would receive in (taking into account the aggregate greater payments Excise Tax and benefits on an after tax basis if any other applicable taxes). (b) The reduction of the Parachute Payments were not reduced pursuant to this contemplated in Section 5(d5.03(a) above shall be implemented by detennining the Parachute Payment Ratio (as defined below), as determined in good faith by the Company (or its successor), for each Parachute Payment and then no reducing the Parachute Payments in order beginning with the Parachute Payment with the highest Parachute Payment Ratio. For Parachute Payments with the same Parachute Payment Ratio, such reduction shall be made. The determination of which payments or benefits Parachute Payments shall be reduced to avoid based on the Excise Tax shall be made by time of payment of such Parachute Payments, with amounts having later payment dates being reduced first. For Parachute Payments with the Independent Tax Counselsame Parachute Payment Ratio and the same time of payment, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments such Parachute Payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(don a pro rata basis (but not below zero) shall be final and binding on all parties heretoprior to reducing Parachute Payments with a lower Parachute Payment Ratio. For purposes of this Section 5(d)hereof, “Independent Tax Counsel” the term "Parachute Payment Ratio" shall mean a lawyerfraction, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in (i) the area numerator of executive compensation tax law, who shall be selected by which is the Board, and whose fees and disbursements shall be paid by value of the Company.applicable 9 #91130319v6

Parachute Payments. If Independent Tax Counsel (as In the event that term is defined below) determines that the aggregate payments and benefits provided any payment or to be benefit made or provided to the Executive pursuant to under this AgreementAgreement (the “Payment”), and either alone or together with any other payments and or benefits provided under any other plan, arrangement, agreement or to be provided to the Executive from the Company or any of its subsidiaries or other affiliates or any successors thereto otherwise that constitute “parachute payments” as defined in Section 280G(b)(2) of the Internal Revenue Code (the "Code") (such other parachute payments, “Section 280G Payments”), would constitute a parachute payment, the Payment shall be reduced to the minimum extent necessary to ensure that no portion of the Code (“Parachute Payments”) that would be Payment or Section 280G Payments is subject to the excise tax imposed by Section 4999 of the Code (collectively, the “Excise TaxReduced Payments”), thenprovided however, except as otherwise provided in no reduction to the next sentencePayment shall occur if the Payment plus Section 280G Payments, less any excise tax which would be imposed on such Parachute Payment and Section 280G Payments pursuant to Section 4999 of the Code, would be greater than the Reduced Payments. If a reduction of the Payment and/or Section 280G Payments is necessary, the payments shall be reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order order: (1i) cash payments not subject to Section 409A of the Codethat are treated in full as a parachute payment; (2) cash payments subject to Section 409A of the Code; (3ii) equity-based payments and accelerationaccelerations of payments that are treated in full as a parachute payment; (iii) cash payments that are treated in part as a parachute payment; (iv) equity-based payments and accelerations of payments that are treated in part as a parachute payment; and (4v) other non-cash forms of benefits. Within any such category of payments and benefits (that is, (i), (ii), (iii), (iv) or (v)), a reduction shall occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A of the Code and then with respect to amounts that are “deferred compensation.” To the extent any such payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company.

Parachute Payments. 1. If Independent Tax Counsel Executive is liable for the payment of any excise tax (the "Basic Excise Tax") pursuant to Section 4999 of the Internal Revenue Code of 1986, as that term is defined below) determines that amended (the aggregate payments and benefits provided "Code"), or any successor or like provision, with respect to any payment or property transfers received or to be provided received under this Agreement or otherwise (the "Payments"), the Company shall pay Executive an amount (the "Reimbursement Payment") which, after payment to Executive (or on Executive's behalf) of any federal, state and local taxes, including, without limitation, any further excise tax under said Section 4999 with respect to or resulting from the Reimbursement Payment, equals the net amount of the Basic Excise Tax. Notwithstanding the foregoing, if it shall be determined that Executive is entitled to a Reimbursement Payment, but that the Payments would not be subject to the Executive pursuant to this Agreement, and any other payments and benefits provided or to Excise Tax if the Payments were reduced by an amount that is less than 10% of the portion of the Payments that would be provided to the Executive from the Company or any of its subsidiaries or other affiliates or any successors thereto constitute “treated as "parachute payments” as defined in " under Section 280G of the Code (“Parachute Payments”) that would be subject Code, then the amounts payable to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, except as otherwise provided in the next sentence, such Parachute Payments Executive under this Agreement shall be reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so to the maximum amount that no portion thereof shall could be subject paid to Executive without giving rise to the Excise TaxTax (the "Safe Harbor Cap"), and no Reimbursement Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by any method of reduction elected by Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If Independent Tax Counsel determines that the Executive reduction of the amounts payable hereunder would receive not result in a reduction of the aggregate greater payments and benefits on an after tax basis if Payments to the Parachute Payments were not Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcprovision.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company.

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines that the aggregate payments and benefits provided any payment or to be provided to the Executive benefit you would receive pursuant to this Agreement, and any other payments and benefits provided or to be provided to the Executive a Change of Control from the Company or any of its subsidiaries or other affiliates or any successors thereto otherwise (“Payment”) would (i) constitute a “parachute paymentspayment” as defined in within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Parachute PaymentsCode”), and (ii) that would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, except as otherwise provided in the next sentence, then such Parachute Payments Payment shall be reduced to the extent Reduced Amount. The “Reduced Amount” shall be either (x) the Independent Tax Counsel shall determine is necessary (but not below zero) so largest portion of the Payment that would result in no portion thereof shall of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in your receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive a reduction in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided constituting “parachute payments” is necessary so that the Independent Tax Counsel Payment equals the Reduced Amount and none of the parachute payments are non-qualified deferred compensation subject to Section 409A of the Code, then the reduction shall reduce occur in the manner you elect in writing prior to the date of payment. If any parachute payment constitutes non-qualified deferred compensation subject to Section 409A or eliminateyou fail to elect an order, as then the case may be, payments or benefits reduction shall occur in the following order order: first a pro rata reduction of (1i) cash payments subject to Section 409A of the Code as non-qualified deferred compensation and (ii) cash payments not subject to Section 409A of the Code; , and second a pro rata cancellation of accelerated vesting of (2i) cash payments equity-based compensation subject to Section 409A of the Code; Code as non-qualified deferred compensation and (3ii) equity-based compensation not subject to Section 409A of the Code with, in each case, the cancellation of accelerated vesting being applied first to vesting that is not subject to Treasury Regulation section 1.280G-1 Q/A 24(c) and subsequently to vesting that is subject to such section. Reduction in either cash payments or equity compensation benefits shall be made pro rata between and acceleration; among benefits which are subject to Section 409A of the Code and (4) non-cash forms benefits which are exempt from Section 409A of benefitsthe Code. To The accounting firm engaged by the extent any payment is Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological orderhereunder. The Any good faith determination of the Independent Tax Counsel under this Section 5(d) accounting firm made hereunder shall be final final, binding and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial conclusive upon the Company and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Companyyou.

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines that the aggregate payments and any payments, distributions or other benefits provided by or to be provided to the Executive pursuant to this Agreement, and any other payments and benefits provided or to be provided to the Executive from the Company to or any for the benefit of its subsidiaries the Employee (whether paid or other affiliates payable or any successors thereto distributed or distributable pursuant to the terms of this Agreement or otherwise) (collectively, the “Payment”) would (i) constitute a “parachute paymentspayment” as defined in within the meaning of Section 280G of the Code and the rules and regulations thereunder and, (“Parachute Payments”ii) that would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), thenthen such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax, except as otherwise provided or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the next sentenceEmployee’s receipt, such Parachute Payments shall be reduced to on an after-tax basis, of the extent greater amount of the Independent Tax Counsel shall determine is necessary (but not below zero) so Payment notwithstanding that no all or some portion thereof shall of the Payment may be subject to the Excise Tax. If Independent Tax Counsel determines a reduction in payments or benefits constituting “parachute payments” is necessary so that the Executive would receive in Payment equals the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d)Reduced Amount, then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order manner: first a pro rata reduction of (1i) cash payments subject to Section 409A of the Code as deferred compensation and (ii) cash payments not subject to Section 409A of the Code; , and second a pro rata cancellation of (2i) cash payments equity-based compensation subject to Section 409A of the Code as deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code; (3) equity-based . Reduction in either cash payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to or equity compensation benefits shall be made over time (e.g.prorata between and among benefits which are subject to Section 409A of the Code and benefits which are exempt from Section 409A of the Code. Determination of whether the Payment would result in the application of the Excise Tax, in installments, etc.), then and the payments amount of any reduction that is necessary so that the Payment equals the Reduced Amount shall be reduced in reverse chronological order. The determination of made, at the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d)Company’s expense, “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid independent accounting or other professional services firm employed by the Company prior to the date on which the Employee’s right to any Payment is triggered (if requested at that time by the Employee or the Company) or such other time as reasonably requested by the Employee or the Company.” Except as amended as provided above, the Employment Agreement shall remain in full force and effect.

Parachute Payments. If Independent Tax Counsel (as a) Notwithstanding anything to the contrary in this Agreement or otherwise, in the event that term is defined below) determines that the aggregate payments and benefits provided any payment or benefit received or to be provided received by the Executive in connection with a Change in Control or the Executive's Separation from Service (whether pursuant to the Executive pursuant to terms of this Agreement, and Agreement or any other payments and benefits provided plan, policy, arrangement or to be provided to the Executive from agreement maintained or entered into by the Company (or any of its subsidiaries Affiliates or other affiliates successors) or any successors thereto constitute “parachute payments” as defined Person whose actions result in Section 280G of a Change in Control (or any Person affiliated with such Person)) (all such payments and benefits, the Code (“"Parachute Payments”") that would be subject (in whole or in part) to the an excise tax imposed by under Section 4999 of the Code (the “"Excise Tax”"), then, except as otherwise provided in then the next sentence, such Parachute Payments shall either be (i) reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that the present value of the Parachute Payments is one dollar less than three times the Executive's "base amount" (as defined in Section 280G(b)(3) of the Code) so that no portion thereof of the Parachute Payments shall be subject to the Excise Tax. If Independent Tax Counsel determines that or (ii) paid in full, whichever produces the better net after-tax position to the Executive would receive in (taking into account the aggregate greater payments Excise Tax and benefits on an after tax basis if any other applicable taxes). (b) The reduction of the Parachute Payments were not reduced pursuant to this contemplated in Section 5(d5.03(a) above shall be implemented by determining the Parachute Payment Ratio (as defined below), as determined in good faith by the Company (or its successor), for each Parachute Payment and then no reducing the Parachute Payments in order beginning with the Parachute Payment with the highest Parachute Payment Ratio. For Parachute Payments with the same Parachute Payment Ratio, such reduction shall be made. The determination of which payments or benefits Parachute Payments shall be reduced to avoid based on the Excise Tax shall be made by time of payment of such Parachute Payments, with amounts having later payment dates being reduced first. For Parachute Payments with the Independent Tax Counselsame Parachute Payment Ratio and the same time of payment, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments such Parachute Payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(don a pro rata basis (but not below zero) shall be final and binding on all parties heretoprior to reducing Parachute Payments with a lower Parachute Payment Ratio. For purposes of this Section 5(d)hereof, “Independent Tax Counsel” the teini "Parachute Payment Ratio" shall mean a lawyerfraction, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in (i) the area numerator of executive compensation tax law, who shall be selected by which is the Board, and whose fees and disbursements shall be paid by value of the Company.applicable 9 #91130319v6

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines that the aggregate payments and benefits provided any payment or to be provided to the Executive benefit you would receive pursuant to this Agreement, and any other payments and benefits provided or to be provided to the Executive a Change of Control from the Company or any of its subsidiaries or other affiliates or any successors thereto otherwise (“Payment”) would (i) constitute a “parachute paymentspayment” as defined in within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Parachute PaymentsCode”), and (ii) that would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, except as otherwise provided in the next sentence, then such Parachute Payments Payment shall be reduced to the extent Reduced Amount. The “Reduced Amount” shall be either (x) the Independent Tax Counsel shall determine is necessary (but not below zero) so largest portion of the Payment that would result in no portion thereof shall of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in your receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive a reduction in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided constituting “parachute payments” is necessary so that the Independent Tax Counsel Payment equals the Reduced Amount and none of the parachute payments are non-qualified deferred compensation subject to Section 409A of the Code, then the reduction shall reduce occur in the manner you elect in writing prior to the date of payment. If any parachute payment constitutes non-qualified deferred compensation subject to Section 409A or eliminateyou fail to elect an order, as then the case may be, payments or benefits reduction shall occur in the following order order: first a pro rata reduction of (1i) cash payments subject to Section 409A of the Code as non-qualified deferred compensation and (ii) cash payments not subject to Section 409A of the Code; , and second a pro rata cancellation of accelerated vesting of (2i) cash payments equity-based compensation subject to Section 409A of the Code as non-qualified deferred compensation and (ii) equity-based compensation not subject to Section 409A of the Code; (3, with, in each case, the cancellation of accelerated vesting being applied first to vesting that is not subject to Treasury Regulation section 1.280G-1 Q/A 24(c) equity-based and subsequently to vesting that is subject to such section. Reduction in either cash payments or equity compensation benefits shall be made pro rata between and acceleration; among benefits which are subject to Section 409A of the Code and (4) non-cash forms benefits which are exempt from Section 409A of benefitsthe Code. To The accounting firm engaged by the extent any payment is Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological orderhereunder. The Any good faith determination of the Independent Tax Counsel under this Section 5(d) accounting firm made hereunder shall be final final, binding and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial conclusive upon the Company and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Companyyou.

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines that the aggregate payments Any other provisions of this Agreement or of any other agreement between Employee and benefits provided or to be provided Employer to the Executive pursuant to this Agreementcontrary notwithstanding, and if any other payments and benefits provided payment or to be provided to the Executive benefit Employee would receive from the Company Employer or any otherwise in connection with a change of its subsidiaries or other affiliates or any successors thereto control of Employer (“Payment”) would (i) constitute a “parachute paymentspayment” as defined in within the meaning of Section 280G of the Code and (“Parachute Payments”ii) that would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, except as otherwise provided in then the next sentence, Employer shall pay the Employee an additional payment (a “Gross-Up Payment”). The Gross-Up Payment shall equal an amount such Parachute Payments shall be reduced that after payment by the Employee of all taxes (and any interest or penalties imposed with respect to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(dsuch taxes), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax shall be made by imposed upon the Independent Tax CounselGross-Up Payment, provided that the Independent Tax Counsel shall reduce or eliminatebut excluding any income taxes, as the case may be, payments or benefits in the following order (1) cash payments not subject interest and penalties imposed pursuant to Section 409A of the Code; (2) cash payments subject to Section 409A , the Employee retains an amount of the Code; Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 9(j), if it is determined that the Employee would be entitled to a Gross-Up Payment, but that the Parachute Value (3as defined below) equityof all Payments does not exceed 110% of an amount equal to 2.99 times the Employee’s “base amount” within the meaning of Section 280G(b)(3) of the Code (the “Safe Harbor Amount”), then no Gross-based payments Up Payment shall be made to the Employee and acceleration; and (4) non-the amounts payable in cash forms under Section 7 of benefitsthis Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To For purposes of reducing the extent any Payments to the Safe Harbor Amount, each payment is to be made over time (e.g., in installments, etc.), then the payments cash under Section 7 of this Agreement shall be reduced in reverse chronological orderon a pro rata basis, and no other Payments shall be reduced. The determination If the reduction of the Independent Tax Counsel amounts payable in cash under Section 7 of this Agreement would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under the Agreement shall be reduced pursuant to this Section 5(d9(j) and the Employee shall be final and binding on all parties heretopaid the Gross-Up Payment. For purposes of this Section 5(d9(j), “Independent Tax CounselParachute Value” means the present value of a Payment as of the date of a change of control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2), as determined by the Accounting Firm (as defined below). All determinations required to be made under this Section 9(j), including whether and when a Gross-Up Payment is required and the amount of any such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall mean a lawyer, a certified public accountant with be made by a nationally recognized accounting firmfirm selected in the discretion of the Employer immediately prior to the change of control (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Employer and the Employee within 15 business days of the receipt of notice from the Employee that there has been a Payment, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in such earlier time as is requested by the area of executive compensation tax lawEmployer. Except as provided below, who any determination by the Accounting Firm shall be selected binding upon the Employer and the Employee. If, as a result of a claim made by the BoardInternal Revenue Service or any other applicable taxing authority, it is determined that the amount of the Excise Tax payable by the Employee is greater than the amount initially determined by the Accounting Firm, then the Employer (or its successor) shall pay to the Employee an additional Gross-Up Payment (determined as set forth above) with respect to such additional Excise Tax. All fees and expenses of the Accounting Firm and of responding to any claim made by the Internal Revenue Service or any other applicable taxing authority shall be borne solely by the Employer; and, in that regard, (i) the Employer shall pay such fees and expenses not later than the end of the calendar year following the calendar year in which the related work is performed or the expenses are incurred, (ii) the amount of fees and expenses that the Employer is obligated to pay in any given calendar year shall not affect any amounts that the Employer is obligated to pay in any other calendar year, and whose (iii) the Employee’s right to have the Employer pay such fees and disbursements expenses may not be liquidated or exchanged for any other benefit. Any Gross-Up Payment, as determined pursuant to this Section 9(j), shall be paid by the CompanyEmployer to the Employee within fifteen business days of the receipt of the Accounting Firm’s determination or the final resolution of any claim made by the Internal Revenue Service or any other applicable taxing authority; provided that, the Gross-Up Payment shall in all events be paid no later than the end of the Employee’s taxable year next following the Employee’s taxable year in which the Excise Tax (and any income or other related taxes or interest or penalties thereon) on a Payment are remitted to the Internal Revenue Service or any other applicable taxing authority or, in the case of amounts relating to a claim that does not result in the remittance of any federal, state, local and foreign income, excise, social security and other taxes, the calendar year in which the claim is finally settled or otherwise resolved. The Employer may, in its sole discretion, withhold and pay over to the Internal Revenue Service or any other applicable taxing authority, for the benefit of the Employee, all or any portion of any Gross-Up Payment, and the Employee hereby consents to such withholding.

Parachute Payments. If Independent Tax Counsel (Except as that term is defined below) determines that otherwise provided in an agreement between Executive and the aggregate payments and benefits provided Company, if any payment or to be provided to the benefit Executive pursuant to this Agreement, and any other payments and benefits provided or to be provided to the Executive would receive from the Company or any of its subsidiaries or other affiliates or any successors thereto otherwise in connection with a change in control (“Payment”) would (i) constitute a “parachute paymentspayment” as defined in within the meaning of Section 280G of the Code Code, and (“Parachute Payments”ii) that would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, except as otherwise provided in the next sentence, then such Parachute Payments Payment shall be reduced equal to the extent Reduced Amount (as defined herein). The “Reduced Amount” shall be either (x) the Independent Tax Counsel shall determine is necessary (but not below zero) so largest portion of the Payment that would result in no portion thereof shall of the Payment being subject to the Excise Tax, or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive a reduction in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, the reduction shall be reduced occur in the manner that results in the greatest economic benefit to avoid the Excise Tax shall be made Executive. The independent registered public accounting firm engaged by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, Company for general audit purposes as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject day prior to Section 409A the effective date of the Code; (3event described in Section 280G(b)(2)(A)(i) equity-based payments and acceleration; and (4) non-cash forms of benefitsthe Code shall perform the foregoing calculations. To If the extent any payment independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting such event, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made over hereunder. The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within thirty (30) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time (e.g., in installments, etc.), then by the payments Company or Executive) or such other time as reasonably requested by the Company or Executive. Any good faith determinations of the independent registered public accounting firm made hereunder shall be reduced in reverse chronological order. The determination of final, binding and conclusive upon the Independent Tax Counsel under this Section 5(d) shall be final Company and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the CompanyExecutive.

Parachute Payments. If Independent Tax Counsel (as that term is defined below) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to Notwithstanding any other provision of this Agreement, and any other payments and benefits provided or to be provided to the Executive from the Company or any if by reason of its subsidiaries or other affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the Code any payment or benefit received or to be received by the Executive would constitute “excess parachute payments” within the meaning of Section 280G (“Parachute Contract Payments”) that would not be subject to deductible (in whole or part) by the excise tax imposed by Section 4999 of the Code Company, an affiliate or other person making such payment or providing such benefit (the “Excise TaxNon-Deductible Contract Payments”), then, except as otherwise provided in then the next sentence, such Parachute Contract Payments shall be reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that until no portion thereof shall be subject to of the Excise Tax. If Independent Tax Counsel determines Contract Payments is not deductible by reason of Section 280G of the Code, provided, however, that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d), then no such reduction shall be made unless the net after-tax benefit received by the Executive after such reduction would exceed the net after-tax benefit received by the Executive if no such reduction was made. The determination of which payments or benefits If applicable, the Contract Payments shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order beginning in reverse order from the last payment or vesting date (1beginning with (i)) and each subsection shall be fully reduced to zero or eliminated before reductions in the next subsection would take effect: (i) cash payments not subject payments, (ii) acceleration of vesting of equity awards (other than stock options or stock appreciation rights), (iii) continuation of medical benefits, and (iv) acceleration of vesting of stock options or stock appreciation rights. Notwithstanding the foregoing, in the event any “parachute payments” could be exempt under Section 280G(b)(5) of the Code and assuming the Executive waives his rights to the Non-Deductible Contract Payments in a manner that satisfies the shareholder approval requirements of Section 409A 280G(b)(5) of the Code; (2) cash payments subject , the Company shall submit to Section 409A a shareholder vote the right of the Code; (3) equityExecutive to receive the Non-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etcDeductible Contract Payments.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company.

Parachute Payments. If Independent Tax Counsel Notwithstanding any other provision of this Section 9, in the event the Company determines, based upon the advice of the independent public accountants for the Company, that part or all of the consideration, compensation or benefits to be paid to Executive under this Agreement constitute "parachute payments" under Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended, then, if the value of such parachute payments for 280G purposes, singularly or together with the aggregate value of any consideration, compensation or benefits to be paid to Executive under any other plan, arrangement or agreement which constitute "parachute payments" (collectively, the "Parachute Amount") exceeds 2.99 times the Executive's "base amount," as defined in Section 280G(b)(3) of the Code (the "Executive Base Amount"), the amounts constituting "parachute payments" which would otherwise be payable to or for the benefit of Executive shall be reduced to the extent necessary so that term the Parachute Amount is defined below) determines equal to 2.99 times the Executive Base Amount (the "Reduced Amount"). In the event of a reduction of the payments that would otherwise be paid to Executive, except for the application of this Section 9(g), then the Company may elect which and how much of any particular entitlement shall be eliminated or reduced and shall notify Executive promptly of such election; provided, however that the aggregate payments reduction shall be no more than as set forth in the preceding sentence of this Section 9(g). Within ten (10) days following such election, the Company shall pay to Executive such amounts as are then due under this Agreement and benefits provided or shall pay to be provided to Executive in the Executive pursuant to future such amounts as become due under this Agreement, and any other payments and benefits provided or to be provided to . As a result of the Executive from uncertainty in the Company or any application of its subsidiaries or other affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the Code at the time of a determination hereunder, it is possible that payments will be made by the Company which should not have been made (“Parachute Payments”"Overpayment") or that would be subject to additional payments which are not made by the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, except as otherwise provided in the next sentence, such Parachute Payments shall be reduced to the extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced Company pursuant to this Section 5(d9(g) should have been made ("Underpayment"), then no such reduction shall be made. The In the event of a final determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firmInternal Revenue Service, or a compensation consultant with final determination by a nationally recognized actuarial and benefits consulting firm with expertise in the area court of executive compensation tax lawcompetent jurisdiction, who that an Overpayment has been made, any such Overpayment shall be selected by treated for all purposes as a loan to Executive which Executive shall repay to the Board, and whose fees and disbursements shall be paid by Company together with interest at the Company.applicable federal rate provided for in Section 7872(f)(2)

Parachute Payments. If Independent Tax Counsel any payment or benefit (as that term is defined below) determines that the aggregate including payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any other payments and benefits provided or to be provided to the ) that Executive would receive in connection with a Change in Control from the Company or any of its subsidiaries or other affiliates or any successors thereto otherwise (“Transaction Payment”) would (i) constitute a “parachute paymentspayment” as defined in within the meaning of Section 280G of the Code Code, and (“Parachute Payments”ii) that would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), thenthen the Company shall cause to be determined, except as otherwise provided before any amounts of the Transaction Payment are paid to Service Provider, which of the following two alternative forms of payment would result in Service Provider’s receipt, on an after-tax basis, of the next sentence, such Parachute Payments shall be reduced to greater amount of the extent Transaction Payment notwithstanding that all or some portion of the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall Transaction Payment may be subject to the Excise Tax. If Independent Tax Counsel determines that : (1) payment in full of the Executive would receive in entire amount of the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(dTransaction Payment (a “Full Payment”), then no such reduction shall be made. The determination or (2) payment of which payments or benefits shall be reduced to avoid only a part of the Transaction Payment so that Service Provider receives the largest payment possible without the imposition of the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.a “Reduced Payment”), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean determining whether to make a lawyer, a certified public accountant with a nationally recognized accounting firm, Full Payment or a compensation consultant with Reduced Payment, the Company shall cause to be taken into account all applicable federal, state and local income and employment taxes and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a nationally recognized actuarial deduction of such state and local taxes). If a Reduced Payment is made, (x) Executive shall have no rights to any additional payments and/or benefits consulting firm with expertise constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the area manner that results in the greatest economic benefit to Executive as determined in this paragraph. If more than one method of executive compensation tax lawreduction will result in the same economic benefit, who the portions of the Transaction Payment shall be selected by reduced pro rata. Unless Executive and the BoardCompany otherwise agree in writing, and whose fees and disbursements any determination required under this section shall be paid made in writing by the Company.’s independent public accountants (the “Accountants”),