Common use of Benefit Limitation Clause in Contracts

Benefit Limitation. (a) Anything in this Agreement to the contrary notwithstanding, in the event that a Change of Control occurs and it shall be determined that any payment or distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“Total Payments”) to be made to Executive would otherwise exceed the amount (the “Safe Harbor Amount”) that could be received by Executive without the imposition of an excise tax under Section 4999 of Code, then the Total Payments shall be reduced to the extent, and only to the extent, necessary to assure that their aggregate present value, as determined in accordance the applicable provisions of Section 280G of the Code and the regulations thereunder, does not exceed the greater of the following dollar amounts (the “Benefit Limit”): (i) the Safe Harbor Amount, or (ii) the greatest after-tax amount payable to Executive after taking into account any excise tax imposed under section 4999 of the Code on the Total Payments. (b) All determinations to be made under this Section 2.3 shall be made by an independent public accounting firm selected by the Company before the date of the Change of Control (the “Accounting Firm”). In determining whether such Benefit Limit is exceeded, the Accounting Firm shall make a reasonable determination of the value to be assigned to the restrictive covenants in effect for Executive pursuant to Sections 4, 5, 6 and 7 of this Agreement, and the amount of his or her potential parachute payment under Section 280G of the Code shall reduced by the value of those restrictive covenants to the extent consistent with Section 280G of the Code and the regulations thereunder. (c) To the extent a reduction to the Total Payments is required to be made in accordance with this Section 2.3, such reduction and/or cancellation of acceleration of equity awards shall occur in the order that provides the maximum economic benefit to Executive. In the event that acceleration of equity awards is to be reduced, such acceleration of vesting also shall be canceled in the order that provides the maximum economic benefit to Executive. Notwithstanding the foregoing any reduction shall be made in a manner consistent with the requirements of section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. (d) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 2.3 shall be borne solely by the Company. The Company agrees to indemnify and hold harmless the Accounting Firm from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 2.3, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.

Benefit Limitation. (aA) Anything in this Agreement to the contrary notwithstanding, in the event that a Change of Control occurs and it shall be determined that any payment (including any acceleration of vesting of stock based benefits) or distribution by the Company to or for the benefit of Executive, the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a “Total PaymentsPayment”) would be subject to be made to Executive would otherwise exceed the amount excise tax imposed by Section 4999 of the Code (the “Safe Harbor AmountExcise Tax”), the amounts and benefits payable under this Agreement shall be reduced by an amount that would result in no Excise Tax being imposed; provided that the amounts and benefits payable under this Agreement shall not be reduced unless the amounts and benefits the Executive would receive after such reduction would be greater than the amounts and benefits the Executive would receive if there were no reduction and the Excise Tax were paid by the Executive (such reduction, the “Cut Back”). For purposes of determining whether any Payments should be subject to the Cut-Back, (i) that Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Date of Termination occurs and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be received by obtained from deduction of such state and local taxes, (ii) no portion of the Payments the receipt or enjoyment of which the Executive without shall have waived at such time and in such manner as not to constitute a “payment” within the imposition meaning of an excise tax under Section 4999 section 280G(b) of the Code shall be taken into account, (iii) no portion of the Payments shall be taken into account which, in the opinion of the Accounting Firm, does not constitute a “parachute payment” within the meaning of section 280G(b)(2) of the Code, then including by reason of section 280G(b)(4)(A) of the Total Code, (iv) the Severance Payments shall be reduced to the extent, and only to the extent, extent necessary so that the Payments in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(B) of the Code or are otherwise not subject to assure that their aggregate present value, disallowance as determined in accordance the applicable provisions deductions by reason of Section section 280G of the Code and Code, in the regulations thereunder, does not exceed the greater opinion of the following dollar amounts Accounting Firm, and (the “Benefit Limit”): (iv) the Safe Harbor Amountvalue of any noncash benefit or any deferred payment or benefit included in the Payments shall be determined by the Accounting Firm in accordance with the principles of sections 280G(d)(3) and (4) of the Code. Unless the Executive shall have given prior written notice to the Company specifying a different order of payments and benefits to be reduced to achieve the Cut-Back, or (ii) any payments and benefits to be reduced hereunder shall be determined in a manner that has the greatest least economic cost to the Executive, on an after-tax amount payable basis, and to the extent the economic cost is equivalent, such payments and benefits shall be reduced in the inverse order of when the payments and benefits would have been made or provided to the Executive after taking into account any excise tax imposed under section 4999 until the reduction specified herein is achieved. The Executive may specify the order of reduction of the Code on payments and benefits only to the Total Paymentsextent that doing so does not directly or indirectly alter the time or method of payment of any amount that is deferred compensation subject to (and not exempt from) Section 409A of the Code. (bB) All determinations required to be made under this Section 2.3 4.2 shall be made by an independent public a nationally recognized accounting firm selected designated by the Company before the date of the Change of Control (the “Accounting Firm”). In determining whether such Benefit Limit is exceeded, the Accounting Firm ) which shall make a reasonable determination of the value to be assigned provide detailed supporting calculations both to the restrictive covenants in effect for Executive pursuant to Sections 4, 5, 6 and 7 of this Agreement, Company and the amount of his Executive within fifteen (15) business days after there has been a Cut-Back, or her potential parachute payment under Section 280G of the Code shall reduced such earlier time as requested by the value of those restrictive covenants to the extent consistent with Section 280G of the Code and the regulations thereunder. (c) To the extent a reduction to the Total Payments is required to be made in accordance with this Section 2.3, such reduction and/or cancellation of acceleration of equity awards shall occur in the order that provides the maximum economic benefit to ExecutiveCompany. In the event that acceleration of equity awards the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint another nationally recognized accounting firm to be reduced, such acceleration of vesting also make the determinations required hereunder (which accounting firm instead shall be canceled in the order that provides the maximum economic benefit to ExecutiveAccounting Firm hereunder). Notwithstanding the foregoing any reduction shall be made in a manner consistent with the requirements of section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. (d) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 2.3 shall be borne solely by the Company. The Company agrees to indemnify and hold harmless Any determination by the Accounting Firm from any shall be binding upon the Company and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 2.3, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting FirmExecutive.

Benefit Limitation. (a) Anything in The provisions of this Agreement to the contrary notwithstanding, Section 6 shall be applicable in the event (i) any payments or benefits to which you become entitled in accordance with the provisions of the New Agreement and this revised Appendix II or any other agreement with Broadcom would otherwise constitute a Parachute Payment that a Change of Control occurs is subject to the Excise Tax and (ii) it shall be is determined that any payment or distribution by the Company to Accounting Firm that the Present Value (measured as of effective date of the Change in Control) of your aggregate Parachute Payment does not exceed one hundred twenty percent (120%) of your Permissible Parachute Amount or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant you are not otherwise entitled to the terms Gross-Up Payment by reason of this Agreement or otherwise (“Total Payments”) your failure to be made to Executive would otherwise exceed the amount (the “Safe Harbor Amount”) that could be received by Executive without the imposition of an excise tax comply with your restrictive covenants under Section 4999 4 or any other of Codeyour Severance Benefit Requirements. In such event, then the Total Payments shall those payments and benefits will be reduced subject to reduction to the extent, and only to the extent, extent necessary to assure that their aggregate present value, as determined in accordance the applicable provisions of Section 280G of the Code and the regulations thereunder, does not exceed you receive only the greater of the following dollar amounts (the “Benefit Limit”): (i) the Safe Harbor Amount, or your Permissible Parachute Amount or (ii) the amount which yields you the greatest after-tax amount payable to Executive of benefits after taking into account any excise tax imposed under section Section 4999 of the Code on the Total Payments. payments and benefits provided to you under the New Agreement and this revised Appendix II (bor on any other benefits to which you may be entitled in connection with a change in control or ownership of Broadcom or the subsequent termination of your employment with Broadcom). To the extent any such reduction is required, the dollar amount of your Cash Severance under Subsection 1(a) All determinations of this revised Appendix II will be reduced first, with such reduction to be made effected pro-rata as to each payment, then the dollar amount of your Lump Sum Health Care and Insurance Benefit Payments shall each be reduced pro-rata, next the number of options or other equity awards that are to vest on an accelerated basis pursuant to Subsection 1(b) of this revised Appendix II shall be reduced (based on the value of the parachute payment resulting from such acceleration) in the same chronological order in which awarded, and finally your remaining benefits will be reduced in a manner that will not result in any impermissible deferral or acceleration of benefits under Section 409A. Notwithstanding the foregoing, in determining whether the benefit limitation of this Section 2.3 shall be made by an independent public accounting firm selected by the Company before the date of the Change of Control (the “Accounting Firm”). In determining whether such Benefit Limit 6 is exceeded, the Accounting Firm shall make a reasonable determination of the value to be assigned to of the restrictive covenants in effect for Executive pursuant to Sections 4, 5, 6 and 7 which you will be subject under Section 4 of this Agreementrevised Appendix II, and the amount of his or her your potential parachute payment under Section 280G of the Code Parachute Payment shall accordingly be reduced by the value of those restrictive covenants to the extent consistent with Code Section 280G of the Code and the regulations Treasury Regulations thereunder. (c) To the extent a reduction to the Total Payments is required to be made in accordance with this Section 2.3, such reduction and/or cancellation of acceleration of equity awards shall occur in the order that provides the maximum economic benefit to Executive. In the event that acceleration of equity awards is to be reduced, such acceleration of vesting also shall be canceled in the order that provides the maximum economic benefit to Executive. Notwithstanding the foregoing any reduction shall be made in a manner consistent with the requirements of section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. (d) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 2.3 shall be borne solely by the Company. The Company agrees to indemnify and hold harmless the Accounting Firm from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 2.3, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.

Benefit Limitation. (aA) Anything in this Agreement to the contrary notwithstanding, in the event that a Change of Control occurs and it shall be determined that any payment (including any acceleration of vesting of stock based benefits) or distribution by the Company to or for the benefit of Executive, the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a “Total PaymentsPayment”) to would be made to Executive would otherwise exceed the amount (the “Safe Harbor Amount”) that could be received by Executive without the imposition of an excise tax under Section 4999 of Code, then the Total Payments shall be reduced subject to the extent, and only to the extent, necessary to assure that their aggregate present value, as determined in accordance the applicable provisions of Section 280G of the Code and the regulations thereunder, does not exceed the greater of the following dollar amounts (the “Benefit Limit”): (i) the Safe Harbor Amount, or (ii) the greatest after-tax amount payable to Executive after taking into account any excise tax imposed under section by Section 4999 of the Code (the “Excise Tax”), the amounts and benefits payable under this Agreement shall be reduced by an amount that would result in no Excise Tax being imposed; provided that the amounts and benefits payable under this Agreement shall not be reduced unless the amounts and benefits the Executive would receive after such reduction would be greater than the amounts and benefits the Executive would receive if there were no reduction and the Excise Tax were paid by the Executive (such reduction, the “Cut Back”). Unless the Executive shall have given prior written notice to the Company specifying a different order of payments and benefits to be reduced to achieve the Cut-Back, any payments and benefits to be reduced hereunder shall be determined in a manner that has the least economic cost to the Executive, on an after-tax basis, and to the Total Paymentsextent the economic cost is equivalent, such payments and benefits shall be reduced in the inverse order of when the payments and benefits would have been made or provided to the Executive until the reduction specified herein is achieved. The Executive may specify the order of reduction of the payments and benefits only to the extent that doing so does not directly or indirectly alter the time or method of payment of any amount that is deferred compensation subject to (and not exempt from) Section 409A of the Code. (bB) All determinations required to be made under this Section 2.3 4.2 shall be made by an independent public a nationally recognized accounting firm selected designated by the Company before the date of the Change of Control (the “Accounting Firm”). In determining whether such Benefit Limit is exceeded, the Accounting Firm ) which shall make a reasonable determination of the value to be assigned provide detailed supporting calculations both to the restrictive covenants in effect for Executive pursuant to Sections 4, 5, 6 and 7 of this Agreement, Company and the amount of his Executive within fifteen (15) business days after there has been a Cut-Back, or her potential parachute payment under Section 280G of the Code shall reduced such earlier time as requested by the value of those restrictive covenants to the extent consistent with Section 280G of the Code and the regulations thereunder. (c) To the extent a reduction to the Total Payments is required to be made in accordance with this Section 2.3, such reduction and/or cancellation of acceleration of equity awards shall occur in the order that provides the maximum economic benefit to ExecutiveCompany. In the event that acceleration of equity awards the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint another nationally recognized accounting firm to be reduced, such acceleration of vesting also make the determinations required hereunder (which accounting firm instead shall be canceled in the order that provides the maximum economic benefit to ExecutiveAccounting Firm hereunder). Notwithstanding the foregoing any reduction shall be made in a manner consistent with the requirements of section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. (d) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 2.3 shall be borne solely by the Company. The Company agrees to indemnify and hold harmless Any determination by the Accounting Firm from any shall be binding upon the Company and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 2.3, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting FirmExecutive.

Benefit Limitation. (aA) Anything in this Agreement to the contrary notwithstanding, in the event that a Change of Control occurs and it shall be determined that any payment (including any acceleration of vesting of stock based benefits) or distribution by the Company to or for the benefit of Executive, the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a “Total PaymentsPayment”) would be subject to be made to Executive would otherwise exceed the amount excise tax imposed by Section 4999 of the Code (the “Safe Harbor AmountExcise Tax”), the amounts and benefits payable under this Agreement shall be reduced by an amount that would result in no Excise Tax being imposed; provided that the amounts and benefits payable under this Agreement shall not be reduced unless the amounts and benefits the Executive would receive after such reduction would be greater than the amounts and benefits the Executive would receive if there were no reduction and the Excise Tax were paid by the Executive (such reduction, the “Cut Back”). For purposes of determining whether any Payments should be subject to the Cut-Back, (i) that Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Date of Termination occurs and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be received by obtained from deduction of such state and local taxes, (ii) no portion of the Payments the receipt or enjoyment of which the Executive without shall have waived at such time and in such manner as not to constitute a "payment" within the imposition meaning of an excise tax under Section 4999 section 280G(b) of the Code shall be taken into account, (iii) no portion of the Payments shall be taken into account which, in the opinion of the Accounting Firm, does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, then including by reason of section 280G(b)(4)(A) of the Total Code, (iv) the Severance Payments shall be reduced to the extent, and only to the extent, extent necessary so that the Payments in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(B) of the Code or are otherwise not subject to assure that their aggregate present value, disallowance as determined in accordance the applicable provisions deductions by reason of Section section 280G of the Code and Code, in the regulations thereunder, does not exceed the greater opinion of the following dollar amounts Accounting Firm, and (the “Benefit Limit”): (iv) the Safe Harbor Amountvalue of any noncash benefit or any deferred payment or benefit included in the Payments shall be determined by the Accounting Firm in accordance with the principles of sections 280G(d)(3) and (4) of the Code. Unless the Executive shall have given prior written notice to the Company specifying a different order of payments and benefits to be reduced to achieve the Cut-Back, or (ii) any payments and benefits to be reduced hereunder shall be determined in a manner that has the greatest least economic cost to the Executive, on an after-tax amount payable basis, and to the extent the economic cost is equivalent, such payments and benefits shall be reduced in the inverse order of when the payments and benefits would have been made or provided to the Executive after taking into account any excise tax imposed under section 4999 until the reduction specified herein is achieved. The Executive may specify the order of reduction of the Code on payments and benefits only to the Total Paymentsextent that doing so does not directly or indirectly alter the time or method of payment of any amount that is deferred compensation subject to (and not exempt from) Section 409A of the Code. (bB) All determinations required to be made under this Section 2.3 4.2 shall be made by an independent public a nationally recognized accounting firm selected designated by the Company before the date of the Change of Control (the “Accounting Firm”). In determining whether such Benefit Limit is exceeded, the Accounting Firm ) which shall make a reasonable determination of the value to be assigned provide detailed supporting calculations both to the restrictive covenants in effect for Executive pursuant to Sections 4, 5, 6 and 7 of this Agreement, Company and the amount of his Executive within fifteen (15) business days after there has been a Cut-Back, or her potential parachute payment under Section 280G of the Code shall reduced such earlier time as requested by the value of those restrictive covenants to the extent consistent with Section 280G of the Code and the regulations thereunder. (c) To the extent a reduction to the Total Payments is required to be made in accordance with this Section 2.3, such reduction and/or cancellation of acceleration of equity awards shall occur in the order that provides the maximum economic benefit to ExecutiveCompany. In the event that acceleration of equity awards the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint another nationally recognized accounting firm to be reduced, such acceleration of vesting also make the determinations required hereunder (which accounting firm instead shall be canceled in the order that provides the maximum economic benefit to ExecutiveAccounting Firm hereunder). Notwithstanding the foregoing any reduction shall be made in a manner consistent with the requirements of section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. (d) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 2.3 shall be borne solely by the Company. The Company agrees to indemnify and hold harmless Any determination by the Accounting Firm from any shall be binding upon the Company and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 2.3, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting FirmExecutive.

Benefit Limitation. (a) 7.2.1 Anything in this Agreement to the contrary notwithstanding, in the event that a Change of in Control occurs and it shall be determined that any payment or distribution by the Company or its Affiliates to or for the benefit of Executivethe Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“Total Payments”) to be made to Executive would otherwise exceed the amount (the “Safe Harbor Amount”) that could may be received eived by Executive the Employee without the imposition of an excise tax under Section section 4999 of Code, then the Total Payments shall be reduced to the extent, and only to the extent, necessary to assure that their aggregate present value, as determined in accordance the applicable provisions of Section section 280G of the Code and the regulations thereunderCode, does not exceed the greater of the following dollar amounts (the “Benefit Limit”): (ia) the Safe Harbor Amount, or (iib) the greatest after-tax amount payable to Executive the Employee after taking into account any excise tax imposed under section 4999 of the Code on the Total Payments. (b) 7.2.2 All determinations to be made under this Section 2.3 Paragraph 7.2 shall be made by an independent public accounting firm selected chosen by the Company before the date of the Change of Control (the “Accounting Firm”). In determining whether such Benefit Limit is exceeded, the Accounting Firm shall make a reasonable determination of the value to be assigned to the restrictive covenants in effect for Executive the Employee pursuant to Sections 4Paragraphs 8, 5, 6 10 and 7 11 of this Agreement, and the amount of his or her the Employee’s potential parachute payment under Section section 280G of the Code shall be reduced by the value of those restrictive covenants to the extent consistent with Section section 280G of the Code. 7.2.3 In the event the Internal Revenue Service notifies the Employee of an inquiry with respect to the applicability of section 280G of the Code or section 4999 of the Code to any payment by the Company or its Affiliates, or assessment of tax under section 4999 of the Code with respect to any payment by the Company or its Affiliates, the Employee shall provide notice to the Company of such inquiry or assessment within 10 days, and shall take no action with respect to such inquiry or assessment until the Company has responded thereto (provided such response is timely with respect to the inquiry or assessment). The Company shall have the right to appoint an attorney or accountant to represent the Employee with respect to such inquiry or assessment, and the regulations thereunderEmployee shall fully cooperate with such representative as a condition of the Agreement with respect to such inquiry or assessment. (c) 7.2.4 All of the fees and expenses of the Accounting Firm in performing the determinations referred to in Paragraph 7.2 shall be borne solely by the Company. 7.2.5 To the extent a reduction to the Total Payments is required to be made in accordance with this Section 2.3Paragraph 7.2, such reduction and/or cancellation of acceleration of equity awards shall occur in the order that provides the maximum economic benefit to Executivethe Employee. In the event that acceleration of equity awards is to be reduced, such acceleration of vesting also shall be canceled in the order that provides the maximum economic benefit to Executivethe Employee. Notwithstanding the foregoing foregoing, any reduction shall be made in a manner consistent with the requirements of section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis basis, but not below zero. (d) All of 2. A new Section 16.8 is added to the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 2.3 shall be borne solely by the Company. The Company agrees to indemnify and hold harmless the Accounting Firm from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 2.3, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.Employment Agreement as follows:

Benefit Limitation. (a) 7.2.1 Anything in this Agreement to the contrary notwithstanding, in the event that a Change of in Control occurs and it shall be determined that any payment or distribution by the Company or its Affiliates to or for the benefit of Executivethe Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“Total Payments”) to be made to Executive would otherwise exceed the amount (the “Safe Harbor Amount”) that could may be received eived by Executive the Employee without the imposition of an excise tax under Section section 4999 of Code, then the Total Payments shall be reduced to the extent, and only to the extent, necessary to assure that their aggregate present value, as determined in accordance the applicable provisions of Section section 280G of the Code and the regulations thereunderCode, does not exceed the greater of the following dollar amounts (the “Benefit Limit”): (ia) the Safe Harbor Amount, or (iib) the greatest after-tax amount payable to Executive the Employee after taking into account any excise tax imposed under section 4999 of the Code on the Total Payments. (b) 7.2.2 All determinations to be made under this Section 2.3 Paragraph 7.2 shall be made by an independent public accounting firm selected chosen by the Company before the date of the Change of Control (the “Accounting Firm”). In determining whether such Benefit Limit is exceeded, the Accounting Firm shall make a reasonable determination of the value to be assigned to the restrictive covenants in effect for Executive the Employee pursuant to Sections 4Paragraphs 8, 5, 6 10 and 7 11 of this Agreement, and the amount of his or her the Employee’s potential parachute payment under Section section 280G of the Code shall be reduced by the value of those restrictive covenants to the extent consistent with Section section 280G of the Code. 7.2.3 In the event the Internal Revenue Service notifies the Employee of an inquiry with respect to the applicability of section 280G of the Code or section 4999 of the Code to any payment by the Company or its Affiliates, or assessment of tax under section 4999 of the Code with respect to any payment by the Company or its Affiliates, the Employee shall provide notice to the Company of such inquiry or assessment within 10 days, and shall take no action with respect to such inquiry or assessment until the Company has responded thereto (provided such response is timely with respect to the inquiry or assessment). The Company shall have the right to appoint an attorney or accountant to represent the Employee with respect to such inquiry or assessment, and the regulations thereunderEmployee shall fully cooperate with such representative as a condition of the Agreement with respect to such inquiry or assessment. (c) 7.2.4 All of the fees and expenses of the Accounting Firm in performing the determinations referred to in Paragraph 7.2 shall be borne solely by the Company. 7.2.5 To the extent a reduction to the Total Payments is required to be made in accordance with this Section 2.3Paragraph 7.2, such reduction and/or cancellation of acceleration of equity awards shall occur in the order that provides the maximum economic benefit to Executivethe Employee. In the event that acceleration of equity awards is to be reduced, such acceleration of vesting also shall be canceled in the order that provides the maximum economic benefit to Executivethe Employee. Notwithstanding the foregoing foregoing, any reduction shall be made in a manner consistent with the requirements of section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis basis, but not below zero. (d) All of 3. A new Section 16.8 is added to the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 2.3 shall be borne solely by the Company. The Company agrees to indemnify and hold harmless the Accounting Firm from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 2.3, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.Employment Agreement as follows:

Benefit Limitation. (aA) Anything in this Agreement to the contrary notwithstanding, in the event that a Change of Control occurs and it shall be determined that any payment (including any acceleration of vesting of stock based benefits) or distribution by the Company to or for the benefit of Executive, the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a “Total PaymentsPayment”) would be subject to be made to Executive would otherwise exceed the amount excise tax imposed by Section 4999 of the Code (the “Safe Harbor AmountExcise Tax”), the amounts and benefits payable under this Agreement shall be reduced by an amount that would result in no Excise Tax being imposed; provided that the amounts and benefits payable under this Agreement shall not be reduced unless the amounts and benefits the Executive would receive after such reduction would be greater than the amounts and benefits the Executive would receive if there were no reduction and the Excise Tax were paid by the Executive (such reduction, the “Cut Back”). For purposes of determining whether any Payments should be subject to the Cut-Back, (i) that Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Date of Termination occurs and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be received by obtained from deduction of such state and local taxes, (ii) no portion of the Payments the receipt or enjoyment of which the Executive without shall have waived at such time and in such manner as not to constitute a "payment" within the imposition meaning of an excise tax under Section 4999 section 280G(b) of the Code shall be taken into account, (iii) no portion of the Payments shall be taken into account which, in the opinion of the Accounting Firm, does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, then including by reason of section 280G(b)(4)(A) of the Total Code, (iv) the Severance Payments shall be reduced to the extent, and only to the extent, extent necessary so that the Payments in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(B) of the Code or are otherwise not subject to assure that their aggregate present value, disallowance as determined in accordance the applicable provisions deductions by reason of Section section 280G of the Code and Code, in the regulations thereunder, does not exceed the greater opinion of the following dollar amounts Accounting Firm, and (the “Benefit Limit”): (iv) the Safe Harbor Amountvalue of any noncash benefit or any deferred payment or benefit included in the Payments shall be determined by the Accounting Firm in accordance with the principles of sections 280G(d)(3) and (4) of the Code. Unless the Executive shall have given prior written notice to the Company specifying a different order of payments and benefits to be reduced to achieve the Cut-Back, or (ii) any payments and benefits to be reduced hereunder shall be determined in a manner that has the greatest least economic cost to the Executive, on an after-tax amount payable basis, and to the extent the economic cost is equivalent, such payments and benefits shall be reduced in the inverse order of when the payments and benefits would have 129267/v2 4 been made or provided to the Executive after taking into account any excise tax imposed under section 4999 until the reduction specified herein is achieved. The Executive may specify the order of reduction of the Code on payments and benefits only to the Total Paymentsextent that doing so does not directly or indirectly alter the time or method of payment of any amount that is deferred compensation subject to (and not exempt from) Section 409A of the Code. (bB) All determinations required to be made under this Section 2.3 4.2 shall be made by an independent public a nationally recognized accounting firm selected designated by the Company before the date of the Change of Control (the “Accounting Firm”). In determining whether such Benefit Limit is exceeded, the Accounting Firm ) which shall make a reasonable determination of the value to be assigned provide detailed supporting calculations both to the restrictive covenants in effect for Executive pursuant to Sections 4, 5, 6 and 7 of this Agreement, Company and the amount of his Executive within fifteen (15) business days after there has been a Cut-Back, or her potential parachute payment under Section 280G of the Code shall reduced such earlier time as requested by the value of those restrictive covenants to the extent consistent with Section 280G of the Code and the regulations thereunder. (c) To the extent a reduction to the Total Payments is required to be made in accordance with this Section 2.3, such reduction and/or cancellation of acceleration of equity awards shall occur in the order that provides the maximum economic benefit to ExecutiveCompany. In the event that acceleration of equity awards the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint another nationally recognized accounting firm to be reduced, such acceleration of vesting also make the determinations required hereunder (which accounting firm instead shall be canceled in the order that provides the maximum economic benefit to ExecutiveAccounting Firm hereunder). Notwithstanding the foregoing any reduction shall be made in a manner consistent with the requirements of section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. (d) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 2.3 shall be borne solely by the Company. The Company agrees to indemnify and hold harmless Any determination by the Accounting Firm from any shall be binding upon the Company and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 2.3, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting FirmExecutive.

Benefit Limitation. The aggregate Present Value (ameasured as of ------------------ the Change in Control) Anything in this Agreement of the severance benefits to which the Executive becomes entitled under Paragraph 13 at the time of his Involuntary Termination (namely, the salary continuation payments, the incentive bonus, the continued health care coverage and the Option Parachute Payment attributable to the contrary notwithstanding, Severance- Accelerated Options) shall in the no event that a Change of Control occurs and it shall be determined that any payment or distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“Total Payments”) to be made to Executive would otherwise exceed the in amount (the “Safe Harbor Amount”) that could be received by Executive without the imposition of an excise tax under Section 4999 of Code, then the Total Payments shall be reduced to the extent, and only to the extent, necessary to assure that their aggregate present value, as determined in accordance the applicable provisions of Section 280G of the Code and the regulations thereunder, does not exceed the greater of the ------- following dollar amounts (the “"Benefit Limit”"): (ia) 2.99 times the Safe Harbor AmountExecutive's Average Compensation, less the Present Value, measured as of the Change in Control, of all Other Parachute Payments to which the Executive is entitled, or (iib) the amount which yields the Executive the greatest after-tax amount payable to Executive of benefits under Part Four of this Agreement after taking into account any excise tax imposed under section Code Section 4999 on the payments and benefits which are provided to Executive under Part Four or which otherwise constitute Other Parachute Payments. The Option Parachute Payment attributable to the accelerated vesting of the Code on Executive's Acquisition-Accelerated Options at the Total Payments. (b) All determinations to be made under this Section 2.3 shall be made by an independent public accounting firm selected by the Company before the date time of the Change in Control shall also be subject to the Benefit Limit. For purposes of Control (applying the “Accounting Firm”). In determining whether such Benefit Limit is exceeded, the Accounting Firm shall make a reasonable determination of the value to be assigned to the restrictive covenants in effect for Executive pursuant to Sections 4Executive's severance benefits under Part Four, 5, 6 and 7 of this Agreement, and the amount of his or her potential parachute payment under Section 280G of the Code shall reduced by the value of those restrictive covenants his consulting agreement under Paragraph 17 and his non-competition covenant under Paragraph 18 shall be determined by independent appraisal by a nationally-recognized independent accounting firm acceptable to both the Executive and the Corporation, and a portion of his severance benefits shall, to the extent consistent with Section 280G of such appraised value, be specifically allocated as reasonable compensation for the Code consulting agreement and the regulations thereundernon-competition covenant. (c) To the extent a reduction to the Total Payments is required to be made in accordance with this Section 2.3, such reduction and/or cancellation of acceleration of equity awards shall occur in the order that provides the maximum economic benefit to Executive. In the event that acceleration of equity awards is to be reduced, such acceleration of vesting also shall be canceled in the order that provides the maximum economic benefit to Executive. Notwithstanding the foregoing any reduction shall be made in a manner consistent with the requirements of section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. (d) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 2.3 shall be borne solely by the Company. The Company agrees to indemnify and hold harmless the Accounting Firm from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 2.3, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.

Benefit Limitation. (a) 8.2.1 Anything in this Agreement to the contrary notwithstanding, in the event that a Change of in Control occurs and it shall be determined that any payment or distribution by the Company or its Affiliates to or for the benefit of Executivethe Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“Total Payments”) to be made to Executive would otherwise exceed the amount (the “Safe Harbor Amount”) that could may be received by Executive the Employee without the imposition of an excise tax under Section section 4999 of Code, then the Total Payments shall be reduced to the extent, and only to the extent, necessary to assure that their aggregate present value, as determined in accordance the applicable provisions of Section section 280G of the Code and the regulations thereunderCode, does not exceed the greater of the following dollar amounts (the “Benefit Limit”): (ia) the Safe Harbor Amount, or (iib) the greatest after-tax amount payable to Executive the Employee after taking into account any excise tax imposed under section 4999 of the Code on the Total Payments. (b) 8.2.2 All determinations to be made under this Section 2.3 Paragraph 8.2 shall be made by an independent public accounting firm selected chosen by the Company before the date of the Change of Control (the “Accounting Firm”). In determining whether such Benefit Limit is exceeded, the Accounting Firm shall make a reasonable determination of the value to be assigned to the restrictive covenants in effect for Executive the Employee pursuant to Sections 4Paragraphs 9, 510, 6 11 and 7 12 of this Agreement, and the amount of his or her the Employee’s potential parachute payment under Section section 280G of the Code shall reduced by the value of those restrictive covenants to the extent consistent with Section section 280G of the Code. 8.2.3 In the event the Internal Revenue Service notifies the Employee of an inquiry with respect to the applicability of section 280G of the Code or section 4999 of the Code to any payment by the Company or its Affiliates, or assessment of tax under section 4999 of the Code with respect to any payment by the Company or its Affiliates, the Employee shall provide notice to the Company of such inquiry or assessment within 10 days, and shall take no action with respect to such inquiry or assessment until the Company has responded thereto (provided such response is timely with respect to the inquiry or assessment). The Company shall have the right to appoint an attorney or accountant to represent the Employee with respect to such inquiry or assessment, and the regulations thereunderEmployee shall fully cooperate with such representative as a condition of the Agreement with respect to such inquiry or assessment. (c) 8.2.4 All of the fees and expenses of the Accounting Firm in performing the determinations referred to in Paragraph 8.2 or any attorney or accountant appointed to represent the Employee pursuant to this Paragraph 8.2 shall be borne solely by the Company. 8.2.5 To the extent a reduction to the Total Payments is required to be made in accordance with this Section 2.3Paragraph 8.2, such reduction and/or cancellation of acceleration of equity awards shall occur in the order that provides the maximum economic benefit to Executivethe Employee. In the event that acceleration of equity awards is to be reduced, such acceleration of vesting also shall be canceled in the order that provides the maximum economic benefit to Executivethe Employee. Notwithstanding the foregoing foregoing, any reduction shall be made in a manner consistent with the requirements of section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis basis, but not below zero. (d) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 2.3 shall be borne solely by the Company. The Company agrees to indemnify and hold harmless the Accounting Firm from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 2.3, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.

Benefit Limitation. In the event it should be determined (a) Anything in this Agreement to the contrary notwithstanding, in the event that a Change of Control occurs and it shall be determined manner set forth below) that any payment or distribution by the Company of any type to or for the benefit of Executivethe Executive made by the Company, any of its affiliates, any Person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company’s assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations thereunder—a “Change in Control Event”) or any affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Total Payments”) to be made to Executive ), would otherwise exceed the amount (the “Safe Harbor Amount”) that could be received by the Executive without the imposition of an excise tax under Section 4999 of Codethe Code (the “Safe Harbor Amount”), then the Total Payments shall be reduced to the extent, and only to the extent, necessary to assure that their aggregate present value, as determined in accordance the applicable provisions of Code Section 280G of the Code and the regulations thereunder, does not exceed the greater of the following dollar amounts (the “Benefit Limit”): (iA) the The Safe Harbor Amount, or (iiB) the greatest after-tax amount payable to the Executive after taking into account any excise tax imposed under section Code Section 4999 of the Code on the Total Payments. (b) . All determinations to be made under this Section 2.3 12 shall be made by an independent registered public accounting firm selected by the Company before from among the date of largest four accounting firms in the Change of Control United States (the “Accounting Firm”). In However, in determining whether such Benefit Limit is exceeded, the Accounting Firm shall make a reasonable determination of the value to be assigned to the restrictive covenants in effect for the Executive pursuant to Sections 4, 5, 6 and 7 Section 10 of this the Agreement, and the amount of his or her potential parachute payment under Code Section 280G of the Code shall reduced by the value of those restrictive covenants to the extent consistent with Code Section 280G of the Code and the regulations thereunder. (c) To the extent a reduction to the Total Payments is required to be made in accordance with this Section 2.3, such reduction and/or cancellation of acceleration of equity awards shall occur in the order that provides the maximum economic benefit to Executive. In the event that acceleration of equity awards is to be reduced, such acceleration of vesting also shall be canceled in the order that provides the maximum economic benefit to Executive. Notwithstanding the foregoing any reduction shall be made in a manner consistent with the requirements of section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. (d) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 2.3 shall be borne solely by the Company. The Company agrees to indemnify and hold harmless the Accounting Firm from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 2.3, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.

Benefit Limitation. (a) 10.6.1 Anything in this Agreement to the contrary notwithstanding, in the event that a Change of in Control occurs and it shall be determined that any payment or distribution by the Company or its Affiliates to or for the benefit of Executivethe Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“Total Payments”) to be made to Executive would otherwise exceed the amount (the “Safe Harbor Amount”) that could may be received by Executive the Employee without the imposition of an excise tax under Section section 4999 of Code, then the Total Payments shall be reduced to the extent, and only to the extent, necessary to assure that their aggregate present value, as determined in accordance the applicable provisions of Section section 280G of the Code and the regulations thereunderCode, does not exceed the greater of the following dollar amounts (the “Benefit Limit”): (ia) the Safe Harbor Amount, or (iib) the greatest after-tax amount payable to Executive the Employee after taking into account any excise tax imposed under section 4999 of the Code on the Total Payments. (b) 10.6.2 All determinations to be made under this Section 2.3 Paragraph 10.6 shall be made by an independent public accounting firm selected chosen by the Company before the date of the Change of Control (the “Accounting Firm”). In determining whether such Benefit Limit is exceeded, the Accounting Firm shall make a reasonable determination of the value to be assigned to the restrictive covenants in effect for Executive the Employee pursuant to Sections 4Paragraphs 8, 5, 6 10 and 7 14 of this Agreement, and the amount of his or her the Employee’s potential parachute payment under Section section 280G of the Code shall reduced reduce by the value of those restrictive covenants to the extent consistent with Section section 280G of the Code. 10.6.3 In the event the Internal Revenue Service notifies the Employee of an inquiry with respect to the applicability of section 280G of the Code or section 4999 of the Code to any payment by the Company or its Affiliates, or assessment of tax under section 4999 of the Code with respect to any payment by the Company or its Affiliates, the Employee shall provide notice to the Company of such inquiry or assessment within 10 days, and shall take no action with respect to such inquiry or assessment until the Company has responded thereto (provided such response is timely with respect to the inquiry or assessment). The Company shall have the right to appoint an attorney or accountant to represent the Employee with respect to such inquiry or assessment, and the regulations thereunderEmployee shall fully cooperate with such representative as a condition of the Agreement with respect to such inquiry or assessment. (c) 10.6.4 All of the fees and expenses of the Accounting Firm in performing the determinations referred to in Paragraph 10.6 shall be borne solely by the Company. 10.6.5 To the extent a reduction to the Total Payments is required to be made in accordance with this Section 2.3Paragraph 10.6, such reduction and/or cancellation of acceleration of equity awards shall occur in the order that provides the maximum economic benefit to Executivethe Employee. In the event that acceleration of equity awards is to be reduced, such acceleration of vesting also shall be canceled in the order that provides the maximum economic benefit to Executivethe Employee. Notwithstanding the foregoing foregoing, any reduction shall be made in a manner consistent with the requirements of section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis basis, but not below zero. (d) All of 3. A new Section 17.8 is added to the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 2.3 shall be borne solely by the Company. The Company agrees to indemnify and hold harmless the Accounting Firm from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 2.3, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.Employment Agreement as follows:

Benefit Limitation. The provisions of this Section 13 shall automatically come into force and effect if a Change in Control Event is not effected prior to the expiration of the twenty-four (24)-month period measured from the Commencement Date: (a) Anything in this Agreement to the contrary notwithstanding, in In the event that a Change of Control occurs and it shall be is determined that any payment or distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“Total Payments”) to be made to Executive Payments would otherwise exceed the amount (the “Safe Harbor Amount”) that could be received by the Executive without the imposition of an excise tax under Section 4999 of Codethe Code (the “Safe Harbor Amount”), then the Total Payments shall be reduced to the extent, and only to the extent, necessary to assure that their aggregate present value, as determined in accordance the applicable provisions of Code Section 280G of the Code and the regulations thereunder, does not exceed the greater of the following dollar amounts (the “Benefit Limit”): (iA) the The Safe Harbor Amount, or (iiB) the greatest after-tax amount payable to the Executive after taking into account any excise tax imposed under section Code Section 4999 of the Code on the Total Payments. (b) All determinations to be made under this Section 2.3 13 shall be made by an independent public accounting firm selected by the Company before the date of the Change of Control (the “Accounting Firm”). In However, in determining whether such Benefit Limit is exceeded, the Accounting Firm shall make a reasonable determination of the value to be assigned to the restrictive covenants in effect for the Executive pursuant to Sections 4, 5, 6 and 7 Section 10 of this the Agreement, and the amount of his or her potential parachute payment under Code Section 280G of the Code shall reduced by the value of those restrictive covenants to the extent consistent with Code Section 280G of the Code and the regulations thereunder. (c) To the extent a reduction to the Total Payments is required to be made in accordance with this Section 2.313, the Total Payments attributable to any cash severance payments otherwise due the Executive under Section 8 of this Agreement shall be reduced first, with such reduction and/or cancellation to be effected pro-rata as to each such payment, then the accelerated vesting of acceleration his Initial RSU Award shall be reduced, then the accelerated vesting of equity his Supplemental RSU Award and any other restricted stock unit awards made to him by the Company shall be reduced, and finally the accelerated vesting of the Executive’s stock options shall be reduced, with such reduction to occur in the same chronological order that provides in which those options were granted. The amount of the maximum economic benefit reduction to Executive. In the event that acceleration of equity awards is to be reduced, such acceleration of vesting also each restricted stock unit award and stock option shall be canceled based on the amount of the parachute payment calculated for each such award or option in the order that provides the maximum economic benefit to Executive. Notwithstanding the foregoing any reduction shall be made in a manner consistent accordance with the requirements of section 409A of the Treasury Regulations under Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. (d) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 2.3 shall be borne solely by the Company. The Company agrees to indemnify and hold harmless the Accounting Firm from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 2.3, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.280G,

Benefit Limitation. (a) 6.7.1 Anything in this Agreement to the contrary notwithstanding, in the event that a Change of in Control occurs and it shall be determined that any payment or distribution by the Company or its Affiliates to or for the benefit of Executivethe Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“Total Payments”) to be made to Executive would otherwise exceed the amount (the “Safe Harbor Amount”) that could may be received by Executive the Employee without the imposition of an excise tax under Section section 4999 of Code, then the Total Payments shall be reduced to the extent, and only to the extent, necessary to assure that their aggregate present value, as determined in accordance the applicable provisions of Section section 280G of the Code and the regulations thereunderCode, does not exceed the greater of the following dollar amounts (the “Benefit Limit”): (ia) the Safe Harbor Amount, or (iib) the greatest after-tax amount payable to Executive the Employee after taking into account any excise tax imposed under section 4999 of the Code on the Total Payments. (b) 6.7.2 All determinations to be made under this Section 2.3 Paragraph 6.7 shall be made by an independent public accounting firm selected chosen by the Company before the date of the Change of Control (the “Accounting Firm”). In determining whether such Benefit Limit is exceeded, the Accounting Firm shall make a reasonable determination of the value to be assigned to the restrictive covenants in effect for Executive the Employee pursuant to Sections 4Paragraphs 7, 5, 6 9 and 7 10 of this Agreement, and the amount of his or her the Employee’s potential parachute payment under Section section 280G of the Code shall be reduced by the value of those restrictive covenants to the extent consistent with Section section 280G of the Code. 6.7.3 In the event the Internal Revenue Service notifies the Employee of an inquiry with respect to the applicability of section 280G of the Code or section 4999 of the Code to any payment by the Company or its Affiliates, or assessment of tax under section 4999 of the Code with respect to any payment by the Company or its Affiliates, the Employee shall provide notice to the Company of such inquiry or assessment within 10 days, and shall take no action with respect to such inquiry or assessment until the Company has responded thereto (provided such response is timely with respect to the inquiry or assessment). The Company shall have the right to appoint an attorney or accountant to represent the Employee with respect to such inquiry or assessment, and the regulations thereunderEmployee shall fully cooperate with such representative as a condition of the Agreement with respect to such inquiry or assessment. (c) 6.7.4 All of the fees and expenses of the Accounting Firm in performing the determinations referred to in Paragraph 6.7 shall be borne solely by the Company. 6.7.5 To the extent a reduction to the Total Payments is required to be made in accordance with this Section 2.3Paragraph 6.7, such reduction and/or cancellation of acceleration of equity awards shall occur in the order that provides the maximum economic benefit to Executivethe Employee. In the event that acceleration of equity awards is to be reduced, such acceleration of vesting also shall be canceled in the order that provides the maximum economic benefit to Executivethe Employee. Notwithstanding the foregoing foregoing, any reduction shall be made in a manner consistent with the requirements of section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis basis, but not below zero. (d) All of 3. A new Section 15.8 is added to the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 2.3 shall be borne solely by the Company. The Company agrees to indemnify and hold harmless the Accounting Firm from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 2.3, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.Employment Agreement as follows:

Benefit Limitation. (a) Anything in this Agreement to the contrary notwithstanding, in the event that a Change of Control occurs and it shall be determined that any payment or distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (“Total Payments”) to be made to Executive would otherwise exceed the amount (the “Safe Harbor Amount”) that could be received by Executive without the imposition of an excise tax under Section 4999 of Code, then the Total Payments shall be reduced to the extent, and only to the extent, necessary to assure that their aggregate present value, as determined in accordance the applicable provisions of Section 280G 2800 of the Code and the regulations thereunder, does not exceed the greater of the following dollar amounts (the “Benefit Limit”): (i) the Safe Harbor Amount, or (ii) the greatest after-tax amount payable to Executive after taking into account any excise tax imposed under section 4999 of the Code on the Total Payments. (b) All determinations to be made under this Section 2.3 shall be made by an independent public accounting firm selected by the Company before the date of the Change of Control (the “Accounting Firm”). In determining whether such Benefit Limit is exceeded, the Accounting Firm shall make a reasonable determination of the value to be assigned to the restrictive covenants in effect for Executive pursuant to Sections 4, 5, 6 and 7 of this Agreement, and the amount of his or her potential parachute payment under Section 280G 2800 of the Code shall be reduced by the value of those restrictive covenants to the extent consistent with Section 280G 2800 of the Code and the regulations thereunder. (c) To the extent a reduction to the Total Payments is required to be made in accordance with this Section 2.3, such reduction and/or cancellation of acceleration of equity awards shall occur in the order that provides the maximum economic benefit to Executive. In the event that acceleration of equity awards is to be reduced, such acceleration of vesting also shall be canceled in the order that provides the maximum economic benefit to Executive. Notwithstanding the foregoing any reduction shall be made in a manner consistent with the requirements of section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. (d) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 2.3 shall be borne solely by the Company. The Company agrees to indemnify and hold harmless the Accounting Firm from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to this Section 2.3, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.