Common use of CERTAIN REDUCTIONS IN PAYMENTS OR BENEFITS Clause in Contracts

CERTAIN REDUCTIONS IN PAYMENTS OR BENEFITS. Executive and the Company hereby agree as follows: 9.1 Anything in this Agreement to the contrary notwithstanding, in the event that any payment, distribution or other benefit provided by the Company to or for the benefit of Executive (whether paid or payable or provided or to be provided pursuant to the terms of this Agreement or otherwise) (“Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code (the “Code”), and (ii) but for this Section 9, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, in accordance with this Section 9, such Payments shall be reduced to the maximum amount that would result in no portion of the payments being subject to the Excise Tax, but only if and to the extent that such a reduction would result in Executive’s receipt of Payments that are greater than the net amount Executive would receive (after application of the Excise Tax) if no reduction is made. The amount of required reduction, if any, shall be the smallest amount so that Executive’s net proceeds with respect to the Payments (after taking into account payment of any Excise Tax and all federal, state and local income, employment or other taxes) shall be maximized. If, notwithstanding any reduction described in this Section 9 (or in the absence of any such reduction), the Internal Revenue Service determines that a Payment is subject to the Excise Tax (or subject to a different amount of the Excise Tax than determined by the Company or Executive), then Section 9.3 shall apply. If the Excise Tax is not eliminated pursuant to this Section 9, Executive shall pay the Excise Tax. 9.2 All determinations required to be made under this Section 9 shall be made by the Company’s independent auditors. Such auditors shall provide detailed supporting calculations both to the Company and Executive. Any such determination by the Company’s independent auditors shall be binding upon the Company and Executive. The Payments, including, without limitation, any equity award acceleration benefits provided under this Agreement or otherwise (“Equity Award Benefits”), shall be eliminated or reduced consistent with the requirements of this Section 9, first by eliminating or reducing cash payments and then by eliminating or reducing the number of Company shares, options or other equity awards that vest. Within five business days following a determination pursuant to this Section 9.2, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. 9.3 As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Company’s independent auditors hereunder, it is possible that Equity Award Benefits or other Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Equity Award Benefits or other Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Company’s independent auditors, based upon the assertion of a deficiency by the Internal Revenue Service against Executive or the Company which the Company’s independent auditors believe has a high probability of success, determine that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of Executive shall be repaid to the Company; provided, that no amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 280G and Section 4999 of the Code or generate a refund of such taxes. In the event that the Company’s independent auditors, based upon controlling precedent or other substantial authority, determine that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive.

CERTAIN REDUCTIONS IN PAYMENTS OR BENEFITS. Executive and the Company hereby agree as follows: 9.1 8.1 Anything in this Agreement to the contrary notwithstanding, in the event that any payment, distribution or other benefit provided by the Company to or for the benefit of Executive (whether paid or payable or provided or to be provided pursuant to the terms of this Agreement or otherwise) (“Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code (the “Code”), and (ii) but for this Section 98, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, in accordance with this Section 98, such Payments shall be reduced to the maximum amount that would result in no portion of the payments being subject to the Excise Tax, but only if and to the extent that such a reduction would result in Executive’s receipt of Payments that are greater than the net amount Executive would receive (after application of the Excise Tax) if no reduction is made. The amount of required reduction, if any, shall be the smallest amount so that Executive’s net proceeds with respect to the Payments (after taking into account payment of any Excise Tax and all federal, state and local income, employment or other taxes) shall be maximized. If, notwithstanding any reduction described in this Section 9 8 (or in the absence of any such reduction), the Internal Revenue Service IRS determines that a Payment is subject to the Excise Tax (or subject to a different amount of the Excise Tax than determined by the Company or Executive), then Section 9.3 8.3 shall apply. If the Excise Tax is not eliminated pursuant to this Section 98, Executive shall pay the Excise Tax. 9.2 8.2 All determinations required to be made under this Section 9 8 shall be made by the Company’s independent auditors. Such auditors shall provide detailed supporting calculations both to the Company and Executive. Any such determination by the Company’s independent auditors shall be binding upon the Company and Executive. The Payments, including, including without limitation, limitation any equity award option acceleration benefits provided under this Agreement or otherwise (“Equity Award Option Benefits”), shall be eliminated or reduced consistent with the requirements of this Section 98, first by eliminating or reducing cash payments and then by eliminating or reducing the number of Company shares, shares or options or other equity awards that vest. Within five business days following a determination pursuant to this Section 9.28.2, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. 9.3 8.3 As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Company’s independent auditors hereunder, it is possible that Equity Award Option Benefits or other Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Equity Award Option Benefits or other Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Company’s independent auditors, based upon the assertion of a deficiency by the Internal Revenue Service IRS against Executive or the Company which the Company’s independent auditors believe has a high probability of success, determine that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of Executive shall be repaid to the Company; provided, that no amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 280G and Section 4999 of the Code or generate a refund of such taxes. In the event that the Company’s independent auditors, based upon controlling precedent or other substantial authority, determine that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive.believe

CERTAIN REDUCTIONS IN PAYMENTS OR BENEFITS. Executive and the Company hereby agree as follows: 9.1 8.1 Anything in this Agreement to the contrary notwithstanding, in the event that any payment, distribution or other benefit provided by the Company to or for the benefit of Executive (whether paid or payable or provided or to be provided pursuant to the terms of this Agreement or otherwise) (“Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code (the “Code”), and (ii) but for this Section 98, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, in accordance with this Section 98, such Payments shall be reduced to the maximum amount that would result in no portion of the payments being subject to the Excise Tax, but only if and to the extent that such a reduction would result in Executive’s receipt of Payments that are greater than the net amount Executive would receive (after application of the Excise Tax) if no reduction is made. The amount of required reduction, if any, shall be the smallest amount so that Executive’s net proceeds with respect to the Payments (after taking into account payment of any Excise Tax and all federal, state and local income, employment or other taxes) shall be maximized. If, notwithstanding any reduction described in this Section 9 8 (or in the absence of any such reduction), the Internal Revenue Service IRS determines that a Payment is subject to the Excise Tax (or subject to a different amount of the Excise Tax than determined by the Company or Executive), then Section 9.3 8.3 shall apply. If the Excise Tax is not eliminated pursuant to this Section 98, Executive shall pay the Excise Tax. 9.2 8.2 All determinations required to be made under this Section 9 8 shall be made by the Company’s independent auditors. Such auditors shall provide detailed supporting calculations both to the Company and Executive. Any such determination by the Company’s independent auditors shall be binding upon the Company and Executive. The Payments, including, including without limitation, limitation any equity award option acceleration benefits provided under this Agreement or otherwise (“Equity Award Option Benefits”), shall be eliminated or reduced consistent with the requirements of this Section 98, first by eliminating or reducing cash payments and then by eliminating or reducing the number of Company shares, shares or options or other equity awards that vest. Within five business days following a determination pursuant to this Section 9.28.2, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. 9.3 8.3 As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Company’s independent auditors hereunder, it is possible that Equity Award Option Benefits or other Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Equity Award Option Benefits or other Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Company’s independent auditors, based upon the assertion of a deficiency by the Internal Revenue Service IRS against Executive or the Company which the Company’s independent auditors believe has a high probability of success, determine that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of Executive shall be repaid to the Company; provided, however, that no amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 280G 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Company’s independent auditors, based upon controlling precedent or other substantial authority, determine that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive.

CERTAIN REDUCTIONS IN PAYMENTS OR BENEFITS. Executive and the Company hereby agree as follows: 9.1 8.1 Anything in this Agreement to the contrary notwithstanding, in the event that any payment, distribution or other benefit provided by the Company to or for the benefit of Executive (whether paid or payable or provided or to be provided pursuant to the terms of this Agreement or otherwise) (“"Payments”") would (i) constitute a “"parachute payment” " within the meaning of Section 280G of the Internal Revenue Code (the “"Code”"), and (ii) but for this Section 98, be subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then, in accordance with this Section 98, such Payments shall be reduced to the maximum amount that would result in no portion of the payments being subject to the Excise Tax, but only if and to the extent that such a reduction would result in Executive’s 's receipt of Payments that are greater than the net amount Executive would receive (after application of the Excise Tax) if no reduction is made. The amount of required reduction, if any, shall be the smallest amount so that Executive’s 's net proceeds with respect to the Payments (after taking into account payment of any Excise Tax and all federal, state and local income, employment or other taxes) shall be maximized. If, notwithstanding any reduction described in this Section 9 8 (or in the absence of any such reduction), the Internal Revenue Service IRS determines that a Payment is subject to the Excise Tax (or subject to a different amount of the Excise Tax than determined by the Company or Executive), then Section 9.3 ) 8.3 shall apply. If the Excise Tax is not eliminated pursuant to this Section 98, Executive shall pay the Excise Tax. 9.2 8.2 All determinations required to be made under this Section 9 8 shall be made by the Company’s 's independent auditors. Such auditors shall provide detailed supporting calculations both to the Company and Executive. Any such determination by the Company’s independent auditors shall be binding upon the Company and Executive. The Payments, including, without limitation, any equity award acceleration benefits provided under this Agreement or otherwise (“Equity Award Benefits”), shall be eliminated or reduced consistent with the requirements of this Section 9, first by eliminating or reducing cash payments and then by eliminating or reducing the number of Company shares, options or other equity awards that vest. Within five business days following a determination pursuant to this Section 9.2, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. 9.3 As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Company’s independent auditors hereunder, it is possible that Equity Award Benefits or other Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Equity Award Benefits or other Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Company’s independent auditors, based upon the assertion of a deficiency by the Internal Revenue Service against Executive or the Company which the Company’s independent auditors believe has a high probability of success, determine that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of Executive shall be repaid to the Company; provided, that no amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 280G and Section 4999 of the Code or generate a refund of such taxes. In the event that the Company’s independent auditors, based upon controlling precedent or other substantial authority, determine that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive.supporting

CERTAIN REDUCTIONS IN PAYMENTS OR BENEFITS. Executive and the Company hereby agree as follows: 9.1 8.1 Anything in this Agreement to the contrary notwithstanding, in the event that any payment, distribution or other benefit provided by the Company to or for the benefit of Executive (whether paid or payable or provided or to be provided pursuant to the terms of this Agreement or otherwise) (“Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code (the “Code”), and (ii) but for this Section 98, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, in accordance with this Section 98, such Payments shall be reduced to the maximum amount that would result in no portion of the payments being subject to the Excise Tax, but only if and to the extent that such a reduction would result in Executive’s receipt of Payments that are greater than the net amount Executive would receive (after application of the Excise Tax) if no reduction is made. The amount of required reduction, if any, shall be the smallest amount so that Executive’s net proceeds with respect to the Payments (after taking into account payment of any Excise Tax and all federal, state and local income, employment or other taxes) shall be maximized. If, notwithstanding any reduction described in this Section 9 8 (or in the absence of any such reduction), the Internal Revenue Service IRS determines that a Payment is subject to the Excise Tax (or subject to a different amount of the Excise Tax than determined by the Company or Executive), then Section 9.3 shall apply. If the Excise Tax is not eliminated pursuant to this Section 9, Executive shall pay the Excise Tax.to 9.2 8.2 All determinations required to be made under this Section 9 8 shall be made by the Company’s independent auditors. Such auditors shall provide detailed supporting calculations both to the Company and Executive. Any such determination by the Company’s independent auditors shall be binding upon the Company and Executive. The Payments, including, including without limitation, limitation any equity award option acceleration benefits provided under this Agreement or otherwise (“Equity Award Option Benefits”), shall be eliminated or reduced consistent with the requirements of this Section 98, first by eliminating or reducing cash payments and then by eliminating or reducing the number of Company shares, shares or options or other equity awards that vest. Within five business days following a determination pursuant to this Section 9.28.2, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. 9.3 8.3 As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Company’s independent auditors hereunder, it is possible that Equity Award Option Benefits or other Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Equity Award Option Benefits or other Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Company’s independent auditors, based upon the assertion of a deficiency by the Internal Revenue Service IRS against Executive or the Company which the Company’s independent auditors believe has a high probability of success, determine that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of Executive shall be repaid to the Company; provided, however, that no amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 280G 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Company’s independent auditors, based upon controlling precedent or other substantial authority, determine that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive.

CERTAIN REDUCTIONS IN PAYMENTS OR BENEFITS. Executive and the Company hereby agree as followsEXECUTIVE AND THE COMPANY HEREBY AGREE AS FOLLOWS: 9.1 8.1 Anything in this Agreement to the contrary notwithstanding, in the event that any payment, distribution or other benefit provided by the Company to or for the benefit of Executive (whether paid or payable or provided or to be provided pursuant to the terms of this Agreement or otherwise) (“"Payments”") would (i) constitute a “"parachute payment” " within the meaning of Section 280G of the Internal Revenue Code (the “"Code”"), and (ii) but for this Section 98, be subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then, in accordance with this Section 98, such Payments shall be reduced to the maximum amount that would result in no portion of the payments being subject to the Excise Tax, but only if and to the extent that such a reduction would result in Executive’s 's receipt of Payments that are greater than the net amount Executive would receive (after application of the Excise Tax) if no reduction is made. The amount of required reduction, if any, shall be the smallest amount so that Executive’s 's net proceeds with respect to the Payments (after taking into account payment of any Excise Tax and all federal, state and local income, employment or other taxes) shall be maximized. If, notwithstanding any reduction described in this Section 9 8 (or in the absence of any such reduction), the Internal Revenue Service IRS determines that a Payment is subject to the Excise Tax (or subject to a different amount of the Excise Tax than determined by the Company or Executive), then Section 9.3 8.3 shall apply. If the Excise Tax is not eliminated pursuant to this Section 98, Executive shall pay the Excise Tax. 9.2 8.2 All determinations required to be made under this Section 9 8 shall be made by the Company’s 's independent auditors. Such auditors shall provide detailed supporting calculations both to the Company and Executive. Any such determination by the Company’s independent auditors shall be binding upon the Company and Executive. The Payments, including, without limitation, any equity award acceleration benefits provided under this Agreement or otherwise (“Equity Award Benefits”), shall be eliminated or reduced consistent with the requirements of this Section 9, first by eliminating or reducing cash payments and then by eliminating or reducing the number of Company shares, options or other equity awards that vest. Within five business days following a determination pursuant to this Section 9.2, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. 9.3 As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Company’s independent auditors hereunder, it is possible that Equity Award Benefits or other Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Equity Award Benefits or other Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Company’s independent auditors, based upon the assertion of a deficiency by the Internal Revenue Service against Executive or the Company which the Company’s independent auditors believe has a high probability of success, determine that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of Executive shall be repaid to the Company; provided, that no amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 280G and Section 4999 of the Code or generate a refund of such taxes. In the event that the Company’s independent auditors, based upon controlling precedent or other substantial authority, determine that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive.supporting

CERTAIN REDUCTIONS IN PAYMENTS OR BENEFITS. Executive and the Company hereby agree as follows: 9.1 8.1 Anything in this Agreement to the contrary notwithstanding, in the event that any payment, distribution or other benefit provided by the Company to or for the benefit of Executive (whether paid or payable or provided or to be provided pursuant to the terms of this Agreement or otherwise) (“Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code (the “Code”), and (ii) but for this Section 98, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, in accordance with this Section 98, such Payments shall be reduced to the maximum amount that would result in no portion of the payments being subject to the Excise Tax, but only if and to the extent that such a reduction would result in Executive’s receipt of Payments that are greater than the net amount Executive would receive (after application of the Excise Tax) if no reduction is made. The amount of required reduction, if any, shall be the smallest amount so that Executive’s net proceeds with respect to the Payments (after taking into account payment of any Excise Tax and all federal, state and local income, employment or other taxes) shall be maximized. If, notwithstanding any reduction described in this Section 9 8 (or in the absence of any such reduction), the Internal Revenue Service IRS determines that a Payment is subject to the Excise Tax (or subject to a different amount of the Excise Tax than determined by the Company or Executive), then Section 9.3 8.3 shall apply. If the Excise Tax is not eliminated pursuant to this Section 98, Executive shall pay the Excise Tax. 9.2 8.2 All determinations required to be made under this Section 9 8 shall be made by the Company’s independent auditors. Such auditors shall provide detailed supporting calculations both to the Company and Executive. Any such determination by the Company’s independent auditors shall be binding upon the Company and Executive. The Payments, including, including without limitation, limitation any equity award option acceleration benefits provided under this Agreement or otherwise (“Equity Award Option Benefits”), shall be eliminated or reduced consistent with the requirements of this Section 98, first by eliminating or reducing cash payments and then by eliminating or reducing the number of Company shares, shares or options or other equity awards that vest. Within five business days following a determination pursuant to this Section 9.28.2, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. 9.3 8.3 As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Company’s independent auditors hereunder, it is possible that Equity Award Option Benefits or other Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Equity Award Option Benefits or other Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Company’s independent auditors, based upon the assertion of a deficiency by the Internal Revenue Service IRS against Executive or the Company which the Company’s independent auditors believe has a high probability of success, determine that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of Executive shall be repaid to the Company; provided, that no amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 280G and Section 4999 of the Code or generate a refund of such taxes. In the event that the Company’s independent auditors, based upon controlling precedent or other substantial authority, determine that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive.

CERTAIN REDUCTIONS IN PAYMENTS OR BENEFITS. Executive and the Company hereby agree as follows: 9.1 Anything in this Agreement to the contrary notwithstanding, in (a) In the event that any payment, distribution payments or other benefit provided by the Company to or for the benefit of Executive (whether paid or payable or provided benefits received or to be provided received by Employee pursuant to the terms of this Agreement or otherwise) (“"Payments”") would (i1) constitute a “"parachute payment” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”"), and (ii2) but for this Section 93.4, be subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then, in accordance with this Section 93.4, such Payments shall be reduced to the maximum amount that would result in no portion of the payments being subject to the Excise Tax, but only if and to the extent that such a reduction would result in Executive’s Employee's receipt of Payments that are greater than the net amount Executive that Employee would receive hereunder (after application of the Excise Tax) if no reduction is made. The amount of required reduction, if any, shall be the smallest amount so that Executive’s Employee's net proceeds with respect to the Payments (after taking into account payment of any Excise Tax and all federal, state and local income, employment or other taxesTax) shall be maximized, as determined by Employee. Employee's determination of any required reduction pursuant to this subsection 3.4(a) shall be conclusive and binding upon the Company. The Company shall reduce Payments in accordance with this subsection 3.4(a) only upon written notice from Employee indicating the amount of such reduction, if any. If the Internal Revenue Service (the "IRS") determines that a Payment is subject to the Excise Tax, then subsection 3.4(b) shall apply. (b) If, notwithstanding any reduction described in this Section 9 subsection 3.4(a) (or in the absence of any such reduction), the Internal Revenue Service IRS determines that a Payment Employee is subject to liable for the Excise Tax as a result of the receipt of Payments, then Employee shall be obligated to pay back to the Company, within thirty (or subject 30) days after final IRS determination, an amount of the Payments equal to a different amount the "Repayment Amount." The Repayment Amount shall be the smallest such amount, if any, as shall be required to be paid to the Company so that Employee's net proceeds with respect to the Payments (after taking into account the payment of the Excise Tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing, the Repayment Amount shall be zero if a Repayment Amount of more than determined by zero would not eliminate the Company or Executive), then Section 9.3 shall applyExcise Tax imposed on the Payments. If the Excise Tax is not eliminated pursuant to this Section 9subsection 3.4(b), Executive Employee shall pay the Excise Tax. 9.2 All determinations required to be made under this Section 9 shall be made by the Company’s independent auditors. Such auditors shall provide detailed supporting calculations both to the Company and Executive. Any such determination by the Company’s independent auditors shall be binding upon the Company and Executive. The Payments, including, without limitation, any equity award acceleration benefits provided under this Agreement or otherwise (“Equity Award Benefits”), shall be eliminated or reduced consistent with the requirements of this Section 9, first by eliminating or reducing cash payments and then by eliminating or reducing the number of Company shares, options or other equity awards that vest. Within five business days following a determination pursuant to this Section 9.2, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. 9.3 As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Company’s independent auditors hereunder, it is possible that Equity Award Benefits or other Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Equity Award Benefits or other Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Company’s independent auditors, based upon the assertion of a deficiency by the Internal Revenue Service against Executive or the Company which the Company’s independent auditors believe has a high probability of success, determine that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of Executive shall be repaid to the Company; provided, that no amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 280G and Section 4999 of the Code or generate a refund of such taxes. In the event that the Company’s independent auditors, based upon controlling precedent or other substantial authority, determine that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive.

CERTAIN REDUCTIONS IN PAYMENTS OR BENEFITS. Executive and the Company hereby agree as follows: 9.1 8.1 Anything in this Agreement to the contrary notwithstanding, in the event that any payment, distribution or other benefit provided by the Company to or for the benefit of Executive (whether paid or payable or provided or to be provided pursuant to the terms of this Agreement or otherwise) (“"Payments”") would (i) constitute a “"parachute payment” " within the meaning of Section 280G of the Internal Revenue Code (the “"Code”"), and (ii) but for this Section 98, be subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then, in accordance with this Section 98, such Payments shall be reduced to the maximum amount that would result in no portion of the payments being subject to the Excise Tax, but only if and to the extent that such a reduction would result in Executive’s 's receipt of Payments that are greater than the net amount Executive would receive (after application of the Excise Tax) if no reduction is made. The amount of required reduction, if any, shall be the smallest amount so that Executive’s 's net proceeds with respect to the Payments (after taking into account payment of any Excise Tax and all federal, state and local income, employment or other taxes) shall be maximized. If, notwithstanding any reduction described in this Section 9 8 (or in the absence of any such reduction), the Internal Revenue Service IRS determines that a Payment is subject to the Excise Tax (or subject to a different amount of the Excise Tax than determined by the Company or Executive), then Section 9.3 8.3 shall apply. If the Excise Tax is not eliminated pursuant to this Section 98, Executive shall pay the Excise Tax. 9.2 8.2 All determinations required to be made under this Section 9 8 shall be made by the Company’s 's independent auditors. Such auditors shall provide detailed supporting calculations both to the Company and Executive. Any such determination by the Company’s 's independent auditors shall be binding upon the Company and Executive. The Executive shall determine which and how much of the Payments, including, including without limitation, limitation any equity award option acceleration benefits provided under this Agreement or otherwise (“Equity Award Benefits”), shall be eliminated or reduced consistent with the requirements of this Section 9, first by eliminating or reducing cash payments and then by eliminating or reducing the number of Company shares, options or other equity awards that vest. Within five business days following a determination pursuant to this Section 9.2, the Company shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. 9.3 As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Company’s independent auditors hereunder, it is possible that Equity Award Benefits or other Payments, as the case may be, will have been made by the Company which should not have been made (“Overpayment”) or that additional Equity Award Benefits or other Payments, as the case may be, which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Company’s independent auditors, based upon the assertion of a deficiency by the Internal Revenue Service against Executive or the Company which the Company’s independent auditors believe has a high probability of success, determine that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of Executive shall be repaid to the Company; provided, that no amount shall be payable by Executive to the Company if and to the extent such payment would not either reduce the amount on which Executive is subject to tax under Section 280G and Section 4999 of the Code or generate a refund of such taxes. In the event that the Company’s independent auditors, based upon controlling precedent or other substantial authority, determine that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive.otherwise