Common use of Golden Parachute Excise Tax Clause in Contracts

Golden Parachute Excise Tax. The Company and Executive agree that Executive’s execution of a non-competition agreement is a material inducement to the severance payments and benefits provided pursuant to this Agreement, and the Company further agrees such severance payments and benefits are payable on account of such non-competition agreement. Notwithstanding the foregoing, if any payment or benefit Executive would receive from the Company or otherwise in connection with a Change in Control (as defined in the Plan) or other similar transaction (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will be equal to the Reduced Amount. The “Reduced Amount” will be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax, or (y) the largest portion, up to and including the total, of the Payment, whichever amount ((x) or (y)), after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a Reduced Amount will give rise to the greater after tax benefit, the reduction in the Payments will occur in the following order: (a) reduction of cash payments; (b) cancellation of accelerated vesting of equity awards other than stock options; (c) cancellation of accelerated vesting of stock options; and (d) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, (a), (b), (c) or (d)), a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from Executive’s equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant. The registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the event described in Section 280G(b)(2)(A)(i) of the Code will perform the foregoing calculations. If the registered public accounting firm so engaged by the Company is serving as accountant or auditor for the acquirer or is otherwise unable or unwilling to perform the calculations, the Company will appoint a nationally recognized firm that has expertise in these calculations to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. The firm engaged to make the determinations hereunder will provide its calculations, together with detailed supporting documentation, to the Company and Executive within thirty (30) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as reasonably requested by the Company or Executive. Any good faith determinations of the independent registered public accounting firm made hereunder will be final, binding and conclusive upon the Company and Executive.

Golden Parachute Excise Tax. The Company and Executive agree that Executive’s execution of a non-competition agreement is a material inducement Notwithstanding anything in the foregoing to the severance contrary, if any of the payments and benefits to you (prior to any reduction described in this paragraph) provided pursuant to for in this Agreement, and together with any other payments which you have the Company further agrees such severance payments and benefits are payable on account of such non-competition agreement. Notwithstanding the foregoing, if any payment or benefit Executive would right to receive from the Company or otherwise in connection with any corporation which is a Change in Control (member of an “affiliated group” as defined in Section 1504(a) of the Plan) or other similar transaction Internal Revenue Code of 1986, as amended (“PaymentCode”), without regard to Section 1504(b) of the Code, of which the Company is a member (the “Payments”) would (i) constitute a “parachute payment” within the meaning of (as defined in Section 280G 280G(b)(2) of the Code) and if the Safe Harbor Amount is greater than the Taxed Amount, and (ii) but for this sentence, then the total amount of such Payments shall be subject reduced to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will be equal to the Reduced Safe Harbor Amount. The “Reduced Safe Harbor Amount” will be either (x) is the largest portion of the Payment Payments that would result in no portion of the Payment Payments being subject to the excise tax set forth at Section 4999 of the Code (“Excise Tax”). The “Taxed Amount” is the total amount of the Payments (prior to any reduction as described in this paragraph) notwithstanding that all or some portion of the Payments may be subject to the Excise Tax, or (y) . Solely for the largest portion, up to and including the total, purpose of comparing which of the PaymentSafe Harbor Amount and the Taxed Amount is greater, whichever amount ((x) or (y))the determination of each such amount, after shall be made on an after-tax basis, taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a Reduced Amount will give rise reduction of the Payments to the greater after tax benefitSafe Harbor Amount is necessary, then the reduction in the Payments will shall occur in the following order: (a) reduction of cash payments; (b) cancellation of accelerated vesting of equity awards other than stock options; (c) cancellation of accelerated vesting of stock optionsawards; and (d) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, (a), (b), (c) or (d)), a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that areemployee benefits. In the event that acceleration of compensation from Executive’s equity awards vesting of a stock award is to be reduced, such acceleration of vesting will shall be canceled, subject to the immediately preceding sentence, cancelled in the reverse order of the date of grantgrant of your stock awards. The registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the event described in Section 280G(b)(2)(A)(i) Change of the Code will Control transaction shall perform the foregoing calculations. If the registered public accounting firm so engaged by the Company is serving as accountant or auditor for the acquirer individual, entity or is group effecting the Change of Control, or the Company otherwise unable or unwilling to perform determines such accounting firm should not be engaged for purposes of making the calculationsdeterminations required hereunder, the Company will may appoint a nationally recognized accounting firm that has expertise in these calculations to make the determinations required hereunder. The Company will shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder will shall provide its calculations, together with detailed supporting documentation, to the Company and Executive you within thirty (30) 15 calendar days after the date on which Executive’s your right to a Payment is triggered (if requested at that time by the Company or Executiveyou) or such other time as reasonably requested by the Company or Executive. Any good faith determinations you upon written notice that a payment related to a Change of Control of the independent registered public accounting firm made hereunder will Company has been or is to be final, binding and conclusive upon the Company and Executivemade.

Golden Parachute Excise Tax. The Company and Executive agree (a) In the event that Executive’s execution of a non-competition agreement is a material inducement to the severance payments and benefits provided pursuant to for in this Agreement, and the Company further agrees such severance payments and benefits are payable on account of such non-competition agreement. Notwithstanding the foregoing, if any payment or benefit Executive would receive from the Company Agreement or otherwise in connection with respect to a Change in of Control (as defined in the Plan) or other similar transaction (each, a “280G Payment”) ), would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then any such 280G Payment will provided pursuant to this Agreement (a “Payment”) shall be equal to the Reduced Amount. The “Reduced Amount” will shall be either (x) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax, Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount (i.e., the amount determined by clause (x) or by clause (y)), after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in ExecutiveEmployee’s receipt receipt, on an after-tax basis, of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in a Payment is required pursuant to the preceding sentence and the Reduced Amount is determined pursuant to clause (x) of the preceding sentence, the reduction shall occur in the manner (the “Reduction Method”) that results in the greatest economic benefit for Employee. If more than one method of reduction will give rise to result in the greater after tax same economic benefit, the reduction in items so reduced will be reduced pro rata (the Payments will occur in the following order: (a) reduction of cash payments; “Pro Rata Reduction Method”). 164697903 v6 (b) cancellation Notwithstanding any provision of accelerated vesting Section 5(a) to the contrary, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of equity awards other than stock optionsthe Payment being subject to taxes pursuant to Section 409A that would not otherwise be subject to taxes pursuant to Section 409A, then the Reduction Method and/or the Pro Rata Reduction Method, as the case may be, shall be modified so as to avoid the imposition of taxes pursuant to Section 409A as follows: (A) as a first priority, the modification shall preserve to the greatest extent possible, the greatest economic benefit for Employee as determined on an after-tax basis; (cB) cancellation of accelerated vesting of stock optionsas a second priority, Payments that are contingent on future events (e.g., being terminated without Cause), shall be reduced (or eliminated) before Payments that are not contingent on future events; and (dC) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that isas a third priority, (a), (b), (c) or (d)), a reduction will occur first with respect to amounts Payments that are not “deferred compensation” within the meaning of Section 409A shall be reduced (or eliminated) before Payments that are not deferred compensation within the meaning of Section 409A. (c) Unless Employee and then with respect to amounts that are. In the event that acceleration of compensation from ExecutiveXOMA agree on an alternative accounting firm, XOMA’s equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the independent public accountants immediately preceding sentence, in the reverse order of the date of grant. The registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date Change of the event described in Section 280G(b)(2)(A)(iControl (“Accountants”) of the Code will shall perform the foregoing calculations. If the registered public accounting firm so engaged by the Company is Accountants are serving as accountant or auditor for the acquirer individual, entity or is otherwise unable or unwilling to perform group effecting the calculationsChange of Control transaction, the Company will XOMA shall appoint a nationally recognized accounting firm that has expertise in these calculations to make the determinations required hereunderby this Section 5. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations and may rely on interpretations concerning the application of the Code for which there is a “substantial authority” tax reporting position. The Company will Parties shall furnish such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. XOMA shall bear all expenses reasonable costs the Accountants incur in connection with respect calculations contemplated by this Section 5. XOMA shall use commercially reasonable efforts to cause the determinations by such independent registered public accounting firm required to be made hereunder. The firm engaged Accountants to make the determinations hereunder will to provide its calculations, together with detailed supporting documentation, to the Company Employee and Executive XOMA within thirty fifteen (3015) calendar days after the date on which ExecutiveEmployee’s right to a 280G Payment is triggered becomes reasonably likely to occur (if requested at that time by the Company Employee or ExecutiveXOMA) or such other time as reasonably requested by Employee or XOMA. (d) If Employee receives a Payment for which the Company or Executive. Any good faith determinations Reduced Amount was determined pursuant to clause (x) of Section 5(a) and the Internal Revenue Service determines thereafter that some portion of the independent registered public accounting firm made hereunder will be finalPayment is subject to the Excise Tax, binding and conclusive upon Employee agrees to promptly return to XOMA a sufficient amount of the Company and ExecutivePayment (after reduction pursuant to clause (x) of Section 5(a)) so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) of Section 5(a), Employee shall have no obligation to return any portion of the Payment pursuant to the preceding sentence.

Golden Parachute Excise Tax. The Company and Executive agree that Executive’s execution (a) Any provision of a non-competition agreement is a material inducement this Agreement to the severance payments and benefits provided pursuant to this Agreement, and the Company further agrees such severance payments and benefits are payable on account of such non-competition agreement. Notwithstanding the foregoingcontrary notwithstanding, if any payment or benefit Executive would receive from the Company pursuant to this Agreement or otherwise in connection with a Change in Control (as defined in the Plan) or other similar transaction (“Payment”) would individually or in the aggregate with all other Payments (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, Code and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will be equal to the Reduced AmountAmount (as defined below). The “Reduced Amount” will be either (xA) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax, Tax or (yB) the largest portion, up to and including the total, of the entire Payment, whichever amount ((x) or (y)), after taking into account all applicable federal, state state, and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes that could be obtained from a deduction of such state and local taxes), results in Executive’s receipt ’ s receipt, on an after-tax basis, of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in a Payment is required pursuant to the preceding sentence and the Reduced Amount is determined pursuant to clause (A) of the preceding sentence, the reduction shall occur in the manner (the “Reduction Method”) that results in the greatest economic benefit for Executive. If more than one method of reduction will give rise to result in the greater after tax same economic benefit, the reduction items so reduced will be reduced pro rata (the “Pro Rata Reduction Method”). Notwithstanding the foregoing, if the Reduction Method or the Pro Rata Reduction Method would result in any portion of the Payments will occur in Payment being subject to taxes pursuant to Section 409A (as defined below) that would not otherwise be subject to taxes pursuant to Section 409A, then the following orderReduction Method and/or the Pro Rata Reduction Method, as the case may be, shall be modified so as to avoid the imposition of taxes pursuant to Section 409A as follows: (a1) reduction of cash paymentsas a first priority, the modification shall preserve, to the greatest extent possible, the greatest economic benefit for Executive as determined on an after-tax basis; (b2) cancellation of accelerated vesting of equity awards other than stock options; as a second priority, Payments that are contingent on future events (ce.g., being terminated without cause), shall be reduced (or eliminated) cancellation of accelerated vesting of stock optionsbefore Payments that are not contingent on future events; and (d3) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that isas a third priority, (a), (b), (c) or (d)), a reduction will occur first with respect to amounts Payments that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts shall be reduced (or eliminated) before Payments that are. In are not deferred compensation within the event that acceleration meaning of compensation from Executive’s equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant. Section 409A. (b) The registered public accounting firm engaged by the Company for general audit tax purposes as of the day prior to the effective date of the event described Change in Section 280G(b)(2)(A)(i) of the Code Control will perform the foregoing calculationscalculations set forth in Section 9(a). If the registered public accounting firm so engaged by the Company is serving as the accountant or auditor for the acquirer or is otherwise unable or unwilling to perform the calculationsacquiring company, the Company will appoint a nationally recognized accounting firm that has expertise in these calculations to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder will provide its calculations, together with detailed supporting documentation, to the Company and Executive within thirty (30) calendar days after before the date on which Executive’s right to consummation of a Payment is triggered Change in Control (if requested at that time by the Company or ExecutiveCompany) or such other time as reasonably requested by the Company. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it will furnish the Company or Executivewith documentation reasonably acceptable to the Company that no Excise Tax will be imposed with respect to such Payment. Any good good-faith determinations of the independent registered public accounting firm made hereunder will be final, binding binding, and conclusive upon the Company and Executive.

Golden Parachute Excise Tax. The Company (i) In the event that the severance and Executive agree that Executive’s execution of a non-competition agreement is a material inducement other benefits provided for in this Agreement or otherwise payable to the severance payments and benefits provided pursuant to this Agreement, and the Company further agrees such severance payments and benefits are payable on account of such non-competition agreement. Notwithstanding the foregoing, if any payment or benefit Executive would receive from the Company or otherwise in connection with a Change in Control (as defined in the Plan) or other similar transaction (“Payment”) would (i) constitute a “"parachute payment” payments" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code, ") and (ii) but for this sentence, Section would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then such Payment will the Executive's severance benefits under Sections 4 and 5 shall be equal to the Reduced Amount. The “Reduced Amount” will be payable either (xi) the largest portion of the Payment that in full, or (ii) as to such lesser amount which would result in no portion of the Payment such severance benefits being subject to the Excise Tax, or (y) the largest portion, up to and including the total, excise tax under Section 4999 of the PaymentCode, whichever amount ((x) or (y))of the foregoing amounts, after taking into account all the applicable federal, state and local employment taxes, income taxes, taxes and the Excise Tax (all computed at the highest applicable marginal rate)excise tax imposed by Section 4999, results in Executive’s the receipt by the Executive on an after-tax basis, of the greater economic benefit greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of the Payment such severance benefits may be subject to taxable under Section 4999 of the Excise Tax. Code. (ii) If a Reduced Amount will give rise to the greater after tax benefit, the reduction in the Payments will occur in the following order: (a) reduction of cash payments; (b) cancellation of accelerated vesting of equity awards other than stock options; (c) cancellation of accelerated vesting of stock options; and (d) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, (awould otherwise be paid or provided to the Executive under the terms of this Agreement is necessary to comply with the provisions of Section 6(a), the Executive shall be entitled to select which payments or benefits will be reduced and the manner and method of any such reduction of such payments or benefits (bincluding but not limited to the number of options that would vest under Section 5 subject to reasonable limitations (including, for example, express provisions under the Company's benefit plans) (so long as the requirements of Section 6(a) are met). Within thirty (30) days after the amount of any required reduction in payments and benefits is finally determined in accordance with the provisions of Section 6(c), (c) the Executive shall notify the Company in writing regarding which payments or (d)), a reduction will occur first with respect to amounts that benefits are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from Executive’s equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant. The registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the event described in Section 280G(b)(2)(A)(i) of the Code will perform the foregoing calculations. If the registered public accounting firm so engaged by the Company is serving as accountant or auditor for the acquirer or is otherwise unable or unwilling to perform the calculationsExecutive gives no notification, the Company will appoint determine which amounts to reduce. If, as a nationally recognized firm that has expertise result of any reduction required by Section 6(a), amounts previously paid to the Executive exceed the amount to which the Executive is entitled, the Executive will promptly return the excess amount to the Company. (iii) Unless the Company and the Executive otherwise agree in these writing, any determination required under this Section shall be made in writing by the Company's independent public accountants (the "Accountants"), whose determination shall be conclusive and binding upon the Executive and the Company for all purposes. For purposes of making the calculations to required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the determinations required hereunderapplication of Sections 280G and 4999 of the Code. The Company will and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all expenses costs the Accountants may reasonably incur in connection with respect to the determinations any calculations contemplated by such independent registered public accounting firm required to be made hereunder. The firm engaged to make the determinations hereunder will provide its calculations, together with detailed supporting documentation, to the Company and Executive within thirty (30) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as reasonably requested by the Company or Executive. Any good faith determinations of the independent registered public accounting firm made hereunder will be final, binding and conclusive upon the Company and Executivethis Section.

Golden Parachute Excise Tax. The Company and Executive agree that Executive’s execution If all or any part of a non-competition agreement is a material inducement to the severance payments and benefits provided pursuant to this Agreement, and the Company further agrees such severance payments and benefits are payable on account Change of such non-competition agreement. Notwithstanding the foregoing, if any payment or benefit Executive would receive from the Company or otherwise in connection with a Change in Control (as defined in the Plan) or other similar transaction (“Payment”) Benefits would (ia) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (iib) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will the Change of Control Benefits shall be equal reduced to the Reduced Amount. The “Reduced Amount” will shall be either whichever of the following which would provide the largest after-tax benefit to the Executive between (xy) the largest portion of the Payment Change of Control Benefits that would result in no portion of the Payment Change of Control Benefits being subject to the Excise Tax, or ; and (yz) the largest portion, up to and including the total, of the PaymentChange of Control Benefits, whichever amount ((x) or (y))amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the Executive’s receipt receipt, on an after-tax basis, of the greater economic benefit amount of the Change of Control Benefits notwithstanding that all or some portion of the Payment Change of Control Benefits may be subject to the Excise Tax. If a Reduced Amount will give rise to the greater after tax benefit, the reduction in the Payments will occur in the following order: (a) reduction of cash payments; (b) cancellation of accelerated vesting of equity awards other than stock options; (c) cancellation of accelerated vesting of stock options; and (d) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, (a), (b), (c) or (d)), a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration the Change of compensation from Executive’s equity awards Control Benefits is to be reduced, such acceleration then unless the Executive elects in writing a different order for cancellation or for reduction of vesting will the Change of Control Benefits, first the Acceleration (if applicable) shall be canceled, subject to the immediately preceding sentence, cancelled in the reverse order of the date of grant. The registered public accounting firm engaged by the Company for general audit purposes as grant of the day prior to Executive’s stock awards, and if thereafter the effective date Change of Control Benefits must be further reduced, then the amount of the event described in Section 280G(b)(2)(A)(i) of the Code will perform the foregoing calculations. If the registered public accounting firm so engaged by the Company is serving as accountant or auditor for the acquirer or is otherwise unable or unwilling to perform the calculations, the Company will appoint a nationally recognized firm that has expertise in these calculations to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such independent registered public accounting firm required to Cash Payment shall be made hereunder. The firm engaged to make the determinations hereunder will provide its calculations, together with detailed supporting documentation, to the Company and Executive within thirty (30) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as reasonably requested by the Company or Executive. Any good faith determinations of the independent registered public accounting firm made hereunder will be final, binding and conclusive upon the Company and Executivereduced.

Golden Parachute Excise Tax. The Company (i) In the event that the severance and Executive agree that Executive’s execution of a non-competition agreement is a material inducement other benefits provided for in this Agreement or otherwise payable to the severance payments and benefits provided pursuant to this Agreement, and the Company further agrees such severance payments and benefits are payable on account of such non-competition agreement. Notwithstanding the foregoing, if any payment or benefit Executive would receive from the Company or otherwise in connection with a Change in Control (as defined in the Plan) or other similar transaction (“Payment”) would (i) constitute a “"parachute payment” payments" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code, ") and (ii) but for this sentence, Section would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then such Payment will the Executive's severance benefits under Sections 4 and 5 shall be equal to the Reduced Amount. The “Reduced Amount” will be payable either (xi) the largest portion of the Payment that in full, or (ii) as to such lesser amount which would result in no portion of the Payment such severance benefits being subject to the Excise Tax, or (y) the largest portion, up to and including the total, excise tax under Section 4999 of the PaymentCode, whichever amount ((x) or (y))of the foregoing amounts, after taking into account all the applicable federal, state and local employment taxes, income taxes, taxes and the Excise Tax (all computed at the highest applicable marginal rate)excise tax imposed by Section 4999, results in Executive’s the receipt by the Executive on an after-tax basis, of the greater economic benefit greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of the Payment such severance benefits may be subject to taxable under Section 4999 of the Excise Tax. Code. (ii) If a Reduced Amount will give rise to the greater after tax benefit, the reduction in the Payments will occur in the following order: (a) reduction of cash payments; (b) cancellation of accelerated vesting of equity awards other than stock options; (c) cancellation of accelerated vesting of stock options; and (d) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, (awould otherwise be paid or provided to the Executive under the terms of this Agreement is necessary to comply with the provisions of Section 6(a), the Executive shall be entitled to select which payments or benefits will be reduced and the manner and method of any such reduction of such payments or benefits (bincluding but not limited to the number of options that would vest under Section 5 subject to reasonable limitations (including, for example, express provisions under the Company's benefit plans) (so long as the requirements of Section 6(a) are met). Within thirty (30) days after the amount of any required reduction in payments and benefits is finally determined in accordance with the provisions of Section 6(c), (c) the Executive shall notify the Company in writing regarding which payments or (d)), a reduction will occur first with respect to amounts that benefits are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from Executive’s equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant. The registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the event described in Section 280G(b)(2)(A)(i) of the Code will perform the foregoing calculations. If the registered public accounting firm so engaged by the Company is serving as accountant or auditor for the acquirer or is otherwise unable or unwilling to perform the calculationsExecutive gives no notification, the Company will appoint determine which amounts to reduce. If; as a nationally recognized firm that has expertise result of any reduction required by Section 6(a), amounts previously paid to the Executive exceed the amount to which the Executive is entitled, the Executive will promptly return the excess amount to the Company. (iii) Unless the Company and the Executive otherwise agree in these writing, any determination required under this Section shall be made in writing by the Company's independent public accountants (the "Accountants"), whose determination shall be conclusive and binding upon the Executive and the Company for all purposes. For purposes of making the calculations to required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the determinations required hereunderapplication of Sections 280G and 4999 of the Code. The Company will and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all expenses costs the Accountants may reasonably incur in connection with respect to the determinations any calculations contemplated by such independent registered public accounting firm required to be made hereunder. The firm engaged to make the determinations hereunder will provide its calculations, together with detailed supporting documentation, to the Company and Executive within thirty (30) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as reasonably requested by the Company or Executive. Any good faith determinations of the independent registered public accounting firm made hereunder will be final, binding and conclusive upon the Company and Executivethis Section.

Golden Parachute Excise Tax. The Company (i) In the event that the severance and Executive agree that Executive’s execution of a non-competition agreement is a material inducement other benefits provided for in this Agreement or otherwise payable to the severance payments and benefits provided pursuant to this Agreement, and the Company further agrees such severance payments and benefits are payable on account of such non-competition agreement. Notwithstanding the foregoing, if any payment or benefit Executive would receive from the Company or otherwise in connection with a Change in Control (as defined in the Plan) or other similar transaction (“Payment”) would (i) constitute a “"parachute payment” payments" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code, ") and (ii) but for this sentence, Section would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then such Payment will the Executive's severance benefits under Sections 4 and 5 shall be equal to the Reduced Amount. The “Reduced Amount” will be payable either (xi) the largest portion of the Payment that in full, or (ii) as to such lesser amount which would result in no portion of the Payment such severance benefits being subject to the Excise Tax, or (y) the largest portion, up to and including the total, excise tax under Section 4999 of the PaymentCode, whichever amount ((x) or (y))of the foregoing amounts, after taking into account all the applicable federal, state and local employment taxes, income taxes, taxes and the Excise Tax (all computed at the highest applicable marginal rate)excise tax imposed by Section 4999, results in Executive’s the receipt by the Executive on an after-tax basis, of the greater economic benefit greatest amount of severance benefits under this Agreement, notwithstanding that all or some portion of the Payment such severance benefits may be subject to taxable under Section 4999 of the Excise Tax. Code. (ii) If a Reduced Amount will give rise to the greater after tax benefit, the reduction in the Payments will occur in the following order: (a) reduction of cash payments; (b) cancellation of accelerated vesting of equity awards other than stock options; (c) cancellation of accelerated vesting of stock options; and (d) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, (awould otherwise be paid or provided to the Executive under the terms of this Agreement is necessary to comply with the provisions of Section 6(a), the Executive shall be entitled to select which payments or benefits will be reduced and the manner and method of any such reduction of such payments or benefits (bincluding but not limited to the number of options that would vest under Section 5 subject to reasonable limitations (including, for example, express provisions under the Company's benefit plans) (so long as the requirements of Section 6(a) are met). Within thirty (30) days after the amount of any required reduction in payments and benefits is finally determined in accordance with the provisions of Section 6(c), (c) the Executive shall notify the Company in writing regarding which payments or (d)), a reduction will occur first with respect to amounts that benefits are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from Executive’s equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant. The registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the event described in Section 280G(b)(2)(A)(i) of the Code will perform the foregoing calculations. If the registered public accounting firm so engaged by the Company is serving as accountant or auditor for the acquirer or is otherwise unable or unwilling to perform the calculationsExecutive gives no notification, the Company will appoint determine which amounts to reduce. If; as a nationally recognized firm that has expertise result of any reduction required by Section 6(a), amounts previously paid to the Executive exceed the amount to which the Executive is entitled, the Executive will promptly return the excess amount to the Company. (iii) Unless the Company and the Executive otherwise agree in these writing, any determination required under this Section shall be made in writing by the Company's independent public accountants (the 'Accountants"), whose determination shall be conclusive and binding upon the Executive and the Company for all purposes. For purposes of making the calculations to required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the determinations required hereunderapplication of Sections 280G and 4999 of the Code. The Company will and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all expenses costs the Accountants may reasonably incur in connection with respect to the determinations any calculations contemplated by such independent registered public accounting firm required to be made hereunder. The firm engaged to make the determinations hereunder will provide its calculations, together with detailed supporting documentation, to the Company and Executive within thirty (30) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as reasonably requested by the Company or Executive. Any good faith determinations of the independent registered public accounting firm made hereunder will be final, binding and conclusive upon the Company and Executivethis Section.

Golden Parachute Excise Tax. The (a) In the event that it shall be determined that any payment, distribution or other action by the Company and Executive agree that Executive’s execution of a non-competition agreement is a material inducement to or for your benefit (whether paid or payable or distributed or distributable pursuant to the severance payments and benefits provided pursuant terms of this Agreement or otherwise, (a “Payment”)) would be subject to this Agreementany excise tax (an “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), and if, immediately prior to the Company further agrees such severance payments and benefits are payable on account of such non-competition agreement. Notwithstanding the foregoing, if any payment or benefit Executive would receive from the Company or otherwise in connection with a Change in Control Relevant 280G Event (as defined in below), the PlanPayments are eligible for the shareholder approval exemption under Section 280G(b)(5)(B) or other similar transaction of the Code, and (ii) Company shareholders, as of the Effective Date, control sufficient voting power, as of immediately prior to the Relevant 280G Event, to approve the Payments so as to exempt the Payments from Excise Taxes (the two foregoing conditions, the “PaymentShareholder Approval Conditions”) would then: (i) constitute the Company shall submit the Payments for shareholder approval to the extent necessary for no Excise Tax to be due and (ii) you shall execute such releases or other documents necessary to seek to obtain the requisite shareholder approval in a manner satisfying Section 280G(b)(5)(B) of the Code. For purposes of this Section 5, “parachute paymentRelevant 280G Event” means the relevant change in ownership or effective control, or change in the ownership of a substantial portion of the assets, of a corporation (all within the meaning of Section 280G of the Code), and (ii) but for this sentence, be that will or may result in Payments becoming subject to the excise tax imposed by Section 4999 Excise Tax. (b) In the event that at least one of the Code (the “Excise Tax”)Shareholder Approval Conditions is not satisfied, then the Payments shall be payable as to such Payment will be equal to the Reduced Amount. The “Reduced Amount” will be either (x) the largest portion of the Payment that less amount which would result in no portion of the Payment such payments or distributions being subject to the Excise Tax; provided, or (y) however, that no such reduction shall be made if the largest portion, up to and including the total, of the Payment, whichever net after-tax amount ((x) or (y)), after taking into account all applicable federal, state state, local or other income, employment and excise taxes) to which you would otherwise be entitled without such reduction would be greater than the net after-tax amount (after taking into account federal, state, local or other income, employment and excise taxes, income taxes, and ) to you resulting from the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt of such payments and benefits with such reduction. (c) If a reduction in the greater economic benefit notwithstanding Payments is necessary so that all or some portion of the no Payment may be is subject to the Excise Tax. If a Reduced Amount will give rise to the greater after tax benefit, the reduction in the Payments will shall occur in the following order: (a1) reduction of cash paymentspayments for which the full amount is treated as a parachute payment; (b2) cancellation of accelerated vesting (or, if necessary, payment) of equity cash awards other than stock optionsfor which the full amount is not treated as a parachute payment; (c3) cancellation of any accelerated vesting of stock optionsequity compensation awards; and (d4) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, (a), (b), (c) or (d)), a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that arecontinued employee benefits. In selecting the event that acceleration of equity compensation from Executive’s equity awards is to be reduced, such acceleration of (if any) for which vesting will be canceled, subject to reduced under clause (3) of the immediately preceding sentence, awards shall be selected in a manner that maximizes the after-tax aggregate amount of the Payments provided to you; provided, that, if (and only if) necessary in order to avoid the imposition of an additional tax under Section 409A (as defined below), awards instead shall be selected in the reverse order of the date of grant. The registered public accounting firm engaged by For the Company avoidance of doubt, for general audit purposes as of measuring an equity compensation award’s value to you, such award’s value shall equal the then aggregate fair market value of the day prior to vested shares underlying the effective date of award less any aggregate exercise price less applicable taxes. Also, if two or more equity compensation awards are granted on the same date, each award will be reduced on a pro-rata basis. In no event described in Section 280G(b)(2)(A)(i) of the Code will perform the foregoing calculations. If the registered public accounting firm so engaged by the Company is serving as accountant or auditor for the acquirer or is otherwise unable or unwilling to perform the calculations, the Company will appoint a nationally recognized firm that has expertise in these calculations to make the determinations required hereunder. The Company will bear all expenses shall you have any discretion with respect to the ordering of payment reductions. (d) In no event will the Company be required to gross up any payment or benefit to you to avoid the effects of the Excise Tax or to pay any regular or excise taxes arising from the application of the Excise Tax. (e) All mathematical determinations by such independent registered public accounting firm and all determinations of whether any of the Payments are “parachute payments” (within the meaning of Section 280G) that are required to be made hereunder. The under this Section 5, shall be made by a nationally recognized independent audit firm, law firm engaged to make or other advisor selected by the determinations hereunder will Company (the “Advisors”), who shall provide its calculationstheir determination, together with detailed supporting documentationcalculations regarding the amount of any relevant matters, both to the Company and Executive within thirty (30) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time you. Such determination shall be made by the Company or Executive) or such other time as reasonably requested Advisors using reasonable good faith interpretations of the Code. Any determination by the Company or Executive. Any good faith determinations of the independent registered public accounting firm made hereunder will Advisors shall be final, binding and conclusive upon the Company and Executiveyou, absent manifest error.

Golden Parachute Excise Tax. The Company and Executive agree that Executive’s execution of a non-competition agreement is a material inducement to the severance payments and benefits provided pursuant to this Agreement, and the Company further agrees such severance payments and benefits are payable on account of such non-competition agreement. Notwithstanding the foregoing, if (a) If any payment or benefit the Executive would receive from pursuant to Section 6(d) above or pursuant to any other agreement with the Company or otherwise in connection with following a Change in Control (as defined in the Plan) or other similar transaction otherwise (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, Code and (ii) but for this sentenceSection 28, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will shall be equal reduced to the Reduced Amount. The “Reduced Amount” will shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax, Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount ((x) or (y))which, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the Executive’s receipt receipt, on an after-tax basis, of the greater economic benefit amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a Reduced Amount will give rise to the greater after tax benefit, the reduction in payments or benefits constituting “parachute payments” is necessary so that the Payments will Payment equals the Reduced Amount, reduction shall occur in the following order: (1) cash payments, in the following order: (a) reduction of cash payments; first, severance payments hereunder and (b) cancellation of accelerated vesting of equity awards second, any other than stock options; cash payments hereunder or under any other agreement between the Company and the Executive, (c2) cancellation of accelerated vesting of stock options; and (d) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, (a), (b), (c) or (d)), a reduction will occur first with respect to amounts that are not “deferred compensation” within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from Executive’s equity awards is to be reduced, such acceleration of vesting will be canceledof restricted stock, subject restricted stock units and other equity awards that vest only based on the Executive’s continued service to the immediately preceding sentenceCompany, in or any other awards that vest only based on the reverse order Executive’s continued service to the Company, taking the last ones scheduled to vest (absent the acceleration) first, (3) cancellation of the date acceleration of grant. vesting of performance-based restricted stock, restricted stock units and other equity awards, taking the last ones schedule to vest (absent the acceleration) first and (4) other non-cash forms of benefits. (b) The registered public calculations contemplated in subsection (a) above shall be performed at the expense of the Company by a nationally recognized accounting firm engaged (the “Accounting Firm”) selected by the Company and which has not performed services for general audit purposes as of the day prior to the effective date of the event described in Section 280G(b)(2)(A)(i) of the Code will perform the foregoing calculations. If the registered public accounting firm so engaged by the Company is serving as accountant or auditor for in the acquirer or is otherwise unable or unwilling to perform the calculations, the Company will appoint a nationally recognized firm that has expertise in these calculations to make the determinations required hereunderprior two years. The Company will bear all expenses with respect direct the Accounting Firm to the determinations by such independent registered public accounting firm required to be made hereunder. The firm engaged to make the determinations hereunder will provide submit its calculations, together with determination and detailed supporting documentation, calculations to both the Company and the Executive within thirty (30) calendar days after the date on which Executive’s right to a Payment is triggered (if requested Change in Control or at that time by the Company or Executive) or such other time or times as may be reasonably requested by the Company and the Executive. If the Accounting Firm determines that no Excise Tax is payable with respect to a Payment, either before or Executiveafter the application of the Reduced Amount, it shall furnish the Company and the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the independent registered public accounting firm Accounting Firm made hereunder will shall be final, binding and conclusive upon the Company and the Executive.

Golden Parachute Excise Tax. The Company and (a) In the event that the Executive agree that Executive’s execution of a non-competition agreement is a material inducement becomes entitled to any payments or benefits (whether pursuant to the severance payments terms of this Agreement or any other plan, program, arrangement or agreement with the Company) (collectively, the "Payments") that will be subject to the tax (the "Excise Tax") imposed on "excess parachute payments" by Section 4999 of the Code, the Company shall pay the Executive, at least 30 days prior to the time payment of any such Excise Tax is due, an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax and benefits provided pursuant any federal and state and local income tax imposed on the Gross-Up Payment, shall be equal to this Agreement, the Excise Tax imposed on the Payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the Company further agrees such severance payments and benefits are payable on account amount of such non-competition agreement. Notwithstanding Excise Tax, (A) the foregoing, if any payment or benefit Executive would receive from the Company or otherwise in connection with a Change in Control (Payments shall be treated as defined in the Plan) or other similar transaction (“Payment”) would (i) constitute a “"parachute payment” payments" within the meaning of Section 280G 280G(b)(2) of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will be equal to the Reduced Amount. The “Reduced Amount” will be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax, or (y) the largest portion, up to and including the total, of the Payment, whichever amount ((x) or (y)), after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a Reduced Amount will give rise to the greater after tax benefit, the reduction in the Payments will occur in the following order: (a) reduction of cash "excess parachute payments; (b) cancellation of accelerated vesting of equity awards other than stock options; (c) cancellation of accelerated vesting of stock options; and (d) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, (a), (b), (c) or (d)), a reduction will occur first with respect to amounts that are not “deferred compensation” " within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from Executive’s equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant. The registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the event described in Section 280G(b)(2)(A)(i280G(b)(1) of the Code will perform shall be treated as subject to the foregoing calculations. If Excise Tax to the registered public accounting firm so engaged extent recommended by tax counsel selected by the Company is serving Company's independent auditors, (B) the amount of the Payments which shall be treated as accountant subject to the Excise Tax shall be equal to the lesser of (i) the total amount of the Payments or auditor for (ii) the acquirer amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (A) above), and (C) the value of any non-cash benefits or is otherwise unable any deferred payment or unwilling to perform benefit shall be determined by the calculationsCompany's independent auditors in accordance with the principles of Section 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Company will appoint a nationally recognized firm that has expertise in these calculations Executive shall be deemed to make pay federal income taxes at the determinations required hereunder. The Company will bear all expenses with respect highest marginal rate of federal income taxation applicable to the determinations by such independent registered public accounting firm required to be made hereunder. The firm engaged to make the determinations hereunder will provide its calculations, together with detailed supporting documentation, to the Company and Executive within thirty (30) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as reasonably requested by the Company or Executive. Any good faith determinations of the independent registered public accounting firm made hereunder will be final, binding and conclusive upon the Company and Executive.'s

Golden Parachute Excise Tax. The Company and Executive agree that Executive’s 's execution of a non-competition agreement is a material inducement to the severance payments and benefits provided pursuant to this Agreement, and the Company further agrees such severance payments and benefits are payable on account of such non-competition agreement. Notwithstanding the foregoing, if any payment or benefit Executive would receive from the Company or otherwise in connection with a Change in Control (as defined in the Plan) or other similar transaction (“"Payment”") would (i) constitute a “"parachute payment” " within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then such Payment will be equal to the Reduced Amount. The “"Reduced Amount” " will be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax, or (y) the largest portion, up to and including the total, of the Payment, whichever amount ((x) or (y)), after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s 's receipt of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a Reduced Amount will give rise to the greater after tax benefit, the reduction in the Payments will occur in the following order: (a) reduction of cash payments; (b) cancellation of accelerated vesting of equity awards other than stock options; (c) cancellation of accelerated vesting of stock options; and (d) reduction of other benefits paid to Executive. Within any such category of payments and benefits (that is, (a), (b), (c) or (d)), a reduction will occur first with respect to amounts that are not “"deferred compensation” " within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of compensation from Executive’s 's equity awards is to be reduced, such acceleration of vesting will be canceled, subject to the immediately preceding sentence, in the reverse order of the date of grant. The registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the event described in Section 280G(b)(2)(A)(i) of the Code will perform the foregoing calculations. If the registered public accounting firm so engaged by the Company is serving as accountant or auditor for the acquirer or is otherwise unable or unwilling to perform the calculations, the Company will appoint a nationally recognized firm that has expertise in these calculations to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. The firm engaged to make the determinations hereunder will provide its calculations, together with detailed supporting documentation, to the Company and Executive within thirty (30) calendar days after the date on which Executive’s 's right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as reasonably requested by the Company or Executive. Any good faith determinations of the independent registered public accounting firm made hereunder will be final, binding and conclusive upon the Company and Executive.