Common use of Limitation on Benefits Clause in Contracts

Limitation on Benefits. The Company will make the payments under this Agreement without regard to whether the deductibility of such payments (or any other payments or benefits) would be limited or precluded by Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and without regard to whether such payments would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Code Section 4999 of the Code; provided, however, that if the Total After-Tax Payments (as defined below) would be increased by the reduction or elimination of any payment and/or other benefit (including the vesting of the options) under this Agreement, then the amounts payable under this Agreement will be reduced or eliminated as follows, if possible: (i) first, by reducing or eliminating any cash payments or other benefits (other than the vesting of the options) and (ii) second, by reducing or eliminating the vesting of that options that occurs as a result of such Change in Control (as provided above), to the extent necessary to maximize the Total After-Tax Payments. The Company’s independent, certified public accounting firm will determine whether and to what extent payments or vesting under this agreement are required to be reduced in accordance with the preceding sentence. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made to or for the benefit of Executive (whether made under the Agreement or otherwise), after reduction for all applicable federal taxes (including, without limitation, the tax described in Section 4999 of the Code). The Company agrees to pay for all costs associated with the determination of the payments or vesting required to be reduced and for the avoidance of doubt, shall not be required to pay any taxes, penalties, interest or other expenses to which Executive may be subject.

Limitation on Benefits. The Company will make the payments under this Agreement without regard to whether the deductibility of such payments (or any other payments or benefits) would be limited or precluded by Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and without regard to whether such payments would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Code Section 4999 of the CodeCode (the “Excise Tax”); provided, however, that if the Total After-Tax Payments (as defined below) would be increased by the reduction or elimination of any payment and/or other benefit (including the vesting of the optionsequity awards) under this Agreement, then the amounts payable under this Agreement will be reduced or eliminated as follows, if possible: (i) first, by reducing or eliminating any cash payments or other benefits (other than the vesting of the optionsequity awards) and (ii) second, by reducing or eliminating the vesting of those equity awards that options that occurs occur as a result of such Change in Control (as provided above), to the extent necessary to maximize the Total After-Tax Payments. The Company’s independent, certified public accounting firm (the “Accounting Firm”) will determine whether and to what extent payments or vesting under this agreement are required to be reduced in accordance with the preceding sentence. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made to or for the benefit of Executive (whether made under the Agreement or otherwise)) by the Company or any of its affiliates, after reduction for all applicable federal taxes (includingfederal, without limitationstate and local income taxes, employment, social security and Medicare taxes, the tax described in Section 4999 imposition of the Code)Excise Tax and all other taxes, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied (or is likely to apply) to the Executive’s taxable income for the tax year in which the transaction which causes the application of Section 280G of the Code occurs, or such other rate(s) as the Accounting Firm determines to be likely to apply to the Executive in the relevant tax year(s) in which any of the parachute payments are expected to be made. The Company agrees to pay for all costs associated with the Accounting Firm and the determination of the payments or vesting required to be reduced and for the avoidance of doubt, shall not be required to pay any taxes, penalties, interest or other expenses to which Executive may be subject. If it is ultimately determined (by IRS private letter ruling or closing agreement, court decision or otherwise) that Executive’s parachute payments were reduced by too much or by too little in order to accomplish the purpose of this Section 5.6, the Executive and the Company shall promptly cooperate to correct such underpayment or overpayment in a manner consistent with the purpose of this Section 5.6.

Limitation on Benefits. The Company will make the payments under (a) Notwithstanding anything contained in this Agreement without regard to whether the deductibility contrary, except as provided in Section 8(d), to the extent that any payment, benefit or distribution of such payments (any type to or for the benefit of the Participant by the Company or any of its Affiliates, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any accelerated vesting of stock options or other payments or benefitsequity-based awards) (collectively, the “Total Payments”) would be limited or precluded by subject to the excise tax imposed under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then the Total Payments shall be reduced (but not below zero) and without regard so that the maximum amount of the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Total Payments to whether such payments would be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Code imposed by Section 4999 of the Code; provided, however, that if . Unless the Participant shall have given prior written notice to the Company to effectuate a reduction in the Total After-Tax Payments (as defined below) would be increased by if such a reduction is required, any such notice consistent with the reduction or elimination requirements of Section 409A of the Code to avoid the imputation of any payment and/or other benefit tax, penalty or interest thereunder, the Company shall reduce or eliminate the Total Payments by first reducing or eliminating any cash severance benefits (including with the vesting of payments to be made furthest in the options) under this Agreementfuture being reduced first), then the amounts payable under this Agreement will be reduced or eliminated as follows, if possible: (i) first, by reducing or eliminating any cash payments or other benefits (other than the accelerated vesting of the options) and (ii) secondstock options or similar awards, then by reducing or eliminating the any accelerated vesting of restricted stock or similar awards, then by reducing or eliminating any other remaining Total Payments. This Section 8 shall take precedence over the provisions of any other plan, arrangement or agreement governing the Participant’s rights and entitlements to any benefits or compensation. (b) Any determination that options that occurs as Total Payments to the Participant must be reduced or eliminated in accordance with Section 8(a) and the assumptions to be utilized in arriving at such determination, shall be made by the Board in the exercise of its reasonable, good faith discretion based upon the advice of such professional advisors it may deem appropriate in the circumstances. As a result of such Change the uncertainty in Control (as provided above)the application of Section 4999 of the Code at the time of the initial determination by the Board hereunder, it is possible that Total Payments to the extent necessary Participant which will not have been made by the Company should have been made (“Underpayment”) or that Total Payments to maximize the Total After-Tax PaymentsParticipant which were made should not have been made (“Overpayment”). The Company’s independentIf an Underpayment has occurred, certified public accounting firm will determine whether and to what extent payments or vesting under this agreement are required to the amount of any such Underpayment shall be reduced in accordance with promptly paid by the preceding sentence. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made Company to or for the benefit of Executive the Participant. In the event of an Overpayment, then the Participant shall promptly repay to the Company the amount of any such Overpayment together with interest on such amount (whether made at the same rate as is applied to determine the present value of payments under Section 280G of the Agreement Code or otherwiseany successor thereto), after reduction for all applicable federal taxes from the date the reimbursable payment was received by the Participant to the date the same is repaid to the Company. (including, without limitation, c) If any portion of the Total Payments would otherwise be subject to the excise tax described in imposed by Section 4999 of the CodeCode (before giving effect to any reduction in Total Payments contemplated by Section 8(a)), the Company shall use its reasonable efforts to obtain (in a manner which satisfies all applicable requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations) the approval by such number of shareholders of the Company as is required by the terms of Section 280G(b)(5)(B) of the Code so as to render the parachute payment provisions of Section 280G of the Code inapplicable to the Total Payments that would be reduced or eliminated by operation of Section 8(a) if such shareholder approval was not obtained. (d) Notwithstanding Section 8(a), the Company will pay the full amount of the Total Payments to the Participant if the Participant makes the Company and its Affiliates whole on an after tax basis for any adverse tax consequences imposed on the Company and its Affiliates under Section 280G of the Code as a result of paying the Total Payments to the Participant. The Company agrees acknowledges that the adverse tax consequences to pay for all costs associated with it will be limited by the determination of the payments or vesting required to be reduced and for the avoidance of doubt, shall not be required to pay any taxes, penalties, interest or other expenses extent to which Executive may be subjectit is subject to U.S. income tax.

Limitation on Benefits. (a) It is the intention of Executive and the Company that no payments made or benefits provided by the Company to or for the benefit of Executive under this Agreement or any other agreement or plan pursuant to which Executive is entitled to receive payments or benefits shall be non-deductible to the Company by reason of the operation of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), relating to golden parachute payments. (b) The Company will make the payments under this Agreement without regard to whether the deductibility of such payments (or any other payments or benefits) would be limited or precluded by Code Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and without regard to whether such payments would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Code Section 4999 of the Code; provided, however, that if the Total After-Tax Payments (as defined below) would be increased by the reduction or elimination of any payment and/or other benefit (including the vesting of the options) under this Agreement, then the amounts payable under this Agreement will be reduced or eliminated as follows, if possible: (i) first, by reducing or eliminating any cash payments or other benefits (other than the vesting of the options) and (ii) second, by reducing or eliminating the vesting of that options that occurs as a result of such Change in of Control (as provided above), to the extent necessary to maximize the Total After-Tax Payments. The Company’s independent, certified public accounting firm will determine whether and to what extent payments or vesting under this agreement are required to be reduced in accordance with the preceding sentence. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made to or for the benefit of Executive (whether made under the Agreement or otherwise), after reduction for all applicable federal taxes (including, without limitation, the tax described in Section 4999 of the Code). The Company agrees to pay for all costs associated with the determination of the payments or vesting required to be reduced and for the avoidance of doubt, shall not be required to pay any taxes, penalties, interest or other expenses to which Executive may be subject.

Limitation on Benefits. The Company will make the payments under (a) Notwithstanding anything contained in this Agreement without regard to whether the deductibility contrary, except as provided in Section 8(d), to the extent that any payment, benefit or distribution of such payments (any type to or for the benefit of the Participant by the Company or any of its Affiliates, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any accelerated vesting of stock options or other payments or benefitsequity-based awards) (collectively, the “Total Payments”) would be limited or precluded by subject to the excise tax imposed under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then the Total Payments shall be reduced (but not below zero) and without regard so that the maximum amount of the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Total Payments to whether such payments would be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Code imposed by Section 4999 of the Code; provided, however, that if . Unless the Participant shall have given prior written notice to the Company to effectuate a reduction in the Total After-Tax Payments (as defined below) would be increased by if such a reduction is required, any such notice consistent with the reduction or elimination requirements of Section 409A of the Code to avoid the imputation of any payment and/or other benefit tax, penalty or interest thereunder, the Company shall reduce or eliminate the Total Payments by first reducing or eliminating any cash severance benefits (including with the vesting of payments to be made furthest in the options) under this Agreementfuture being reduced first), then the amounts payable under this Agreement will be reduced or eliminated as follows, if possible: (i) first, by reducing or eliminating any cash payments or other benefits (other than the accelerated vesting of the options) and (ii) secondstock options or similar awards, then by reducing or eliminating the any accelerated vesting of restricted stock or similar awards, then by reducing or eliminating any other remaining Total Payments. This Section 8 shall take precedence over the provisions of any other plan, arrangement or agreement governing the Participant’s rights and entitlements to any benefits or compensation. (b) Any determination that options that occurs as Total Payments to the Participant must be reduced or eliminated in accordance with Section 8(a) and the assumptions to be utilized in arriving at such determination, shall be made by the Board in the exercise of its reasonable, good faith discretion based upon the advice of such professional advisors it may deem appropriate in the circumstances. As a result of such Change the uncertainty in Control (as provided above)the application of Section 4999 of the Code at the time of the initial determination by the Board hereunder, it is possible that Total Payments to the extent necessary Participant which will not have been made by the Company should have been made (“Underpayment”) or that Total Payments to maximize the Total After-Tax PaymentsParticipant which were made should not have been made (“Overpayment”). The Company’s independentIf an Underpayment has occurred, certified public accounting firm will determine whether and to what extent payments or vesting under this agreement are required to the amount of any such Underpayment shall be reduced in accordance with promptly paid by the preceding sentence. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made Company to or for the benefit of Executive the Participant. In the event of an Overpayment, then the Participant shall promptly repay to the Company the amount of any such Overpayment together with interest on such amount (whether made at the same rate as is applied to determine the present value of payments under Section 280G of the Agreement Code or otherwiseany successor thereto), after reduction for all applicable federal taxes from the date the reimbursable payment was received by the Participant to the date the same is repaid to the Company. (including, without limitation, c) If any portion of the Total Payments would otherwise be subject to the excise tax described in imposed by Section 4999 of the CodeCode (before giving effect to any reduction in Total Payments contemplated by Section 8(a)), the Company shall use its reasonable efforts to obtain (in a manner which satisfies all applicable requirements of such Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations) the approval by such number of shareholders of the Company as is required by the terms of Section 280G(b)(5)(B) of the Code so as to render the parachute payment provisions of Section 280G of the Code inapplicable to the Total Payments that would be reduced or eliminated by operation of Section 8(a) if such shareholder approval was not obtained. (d) Notwithstanding Section 8(a), the Company will pay the full amount of the Total Payments to the Participant if the Participant makes the Company and its Affiliates whole on an after tax basis for any adverse tax consequences imposed on the Company and its Affiliates under Section 280G of the Code as a result of paying the Total Payments to the Participant. The Company agrees acknowledges that the adverse tax consequences to pay for all costs associated with it will be limited by the determination of the payments or vesting required to be reduced and for the avoidance of doubt, shall not be required to pay any taxes, penalties, interest or other expenses extent to which Executive may be subjectit is subject to U.S. income tax.

Limitation on Benefits. The Company will make the payments under this Agreement without regard to whether the deductibility of such payments (or any other payments or benefits) would be limited or precluded by Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and without regard to whether such payments would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Code Section 4999 of the CodeCode (the “Excise Tax”); provided, however, that if the Total After-Tax Payments (as defined below) would be increased by the reduction or elimination of any payment and/or other benefit (including the vesting of the options) under this Agreement, then the amounts payable under this Agreement will be reduced or eliminated as follows, if possible: (i) first, by reducing or eliminating any cash payments or other benefits (other than the vesting of the options) and (ii) second, by reducing or eliminating the vesting of that options that occurs as a result of such Change in Control (as provided above), to the extent necessary to maximize the Total After-Tax Payments. The Company’s independent, certified public accounting firm (the “Accounting Firm”) will determine whether and to what extent payments or vesting under this agreement are required to be reduced in accordance with the preceding sentence. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made to or for the benefit of Executive (whether made under the Agreement or otherwise)) by the Company or any of its affiliates, after reduction for all applicable federal taxes (includingstate and local income taxes, without limitationemployment, social security and Medicare taxes, the tax described in Section 4999 imposition of the Code)Excise Tax and all other taxes, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied (or is likely to apply) to the Executive’s taxable income for the tax year in which the transaction which causes the application of Section 280G of the Code occurs, or such other rate(s) as the Accounting Firm determines to be likely to apply to the Executive in the relevant tax year(s) in which any of the parachute payments is expected to be made) than if the Executive received all of the parachute payments. The Company agrees to pay for all costs associated with the Accounting Firm and the determination of the payments or vesting required to be reduced and for the avoidance of doubt, shall not be required to pay any taxes, penalties, interest or other expenses to which Executive may be subject. If it is ultimately determined (by IRS private letter ruling or closing agreement, court decision or otherwise) that Executive’s parachute payments were reduced by too much or by too little in order to accomplish the purpose of this Section 5.6, the Executive and the Company shall promptly cooperate to correct such underpayment or overpayment in a manner consistent with the purpose of this Section 5.6.

Limitation on Benefits. The Company will make the payments under this Agreement without regard to whether the deductibility of such payments (or any other payments or benefits) would be limited or precluded by Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and without regard to whether such payments would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Code Section 4999 of the CodeCode (the “Excise Tax”); provided, however, that if the Total After-Tax Payments (as defined below) would be increased by the reduction or elimination of any payment and/or other benefit (including the vesting of the optionsequity awards) under this Agreement, then the amounts payable under this Agreement will be reduced or eliminated as follows, if possible: (i) first, by reducing or eliminating any cash payments or other benefits (other than the vesting of the optionsequity awards) and (ii) second, by reducing or eliminating the vesting of those equity awards that options that occurs occur as a result of such Change in Control (as provided above), to the extent necessary to maximize the Total After-Tax Payments. The Company’s independent, certified public accounting firm (the “Accounting Firm”) will determine whether and to what extent payments or vesting under this agreement are required to be reduced in accordance with the preceding sentence. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made to or for the benefit of Executive (whether made under the Agreement or otherwise)) by the Company or ​ ​ any of its affiliates, after reduction for all applicable federal taxes (includingfederal, without limitationstate and local income taxes, employment, social security and Medicare taxes, the tax described in Section 4999 imposition of the Code)Excise Tax and all other taxes, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied (or is likely to apply) to the Executive’s taxable income for the tax year in which the transaction which causes the application of Section 280G of the Code occurs, or such other rate(s) as the Accounting Firm determines to be likely to apply to the Executive in the relevant tax year(s) in which any of the parachute payments are expected to be made. The Company agrees to pay for all costs associated with the Accounting Firm and the determination of the payments or vesting required to be reduced and for the avoidance of doubt, shall not be required to pay any taxes, penalties, interest or other expenses to which Executive may be subject. If it is ultimately determined (by IRS private letter ruling or closing agreement, court decision or otherwise) that Executive’s parachute payments were reduced by too much or by too little in order to accomplish the purpose of this Section 5.6, the Executive and the Company shall promptly cooperate to correct such underpayment or overpayment in a manner consistent with the purpose of this Section 5.6.

Limitation on Benefits. The Company will make the payments under this Agreement without regard to whether the deductibility of such payments (or any other payments or benefits) would be limited or precluded by Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and without regard to whether such payments would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Code Section 4999 of the Code; provided, however, that if the Total After-Tax Payments (as defined below) would be increased by the reduction or elimination of any payment and/or other benefit (including the vesting of the options) under this Agreement, then the amounts payable under this Agreement will be reduced or eliminated as follows, if possible: (i) first, by reducing or eliminating any cash payments or other benefits (other than the vesting of the options) and (ii) second, first by reducing or eliminating the vesting of that options that occurs as a result of such Change in Control (as provided above) and (ii) second, by reducing or eliminating any cash payments or other benefits (other than the vesting of the options), to the extent necessary to maximize the Total After-Tax Payments. The Company’s independent, certified public accounting firm will determine whether and to what extent payments or vesting under this agreement are required to be reduced in accordance with the preceding sentence. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made to or for the benefit of Executive (whether made under the Agreement or otherwise), after reduction for all applicable federal taxes (including, without limitation, the tax described in Section 4999 of the Code). The Company agrees to pay for all costs associated with the determination of the payments or vesting required to be reduced and for the avoidance of doubt, shall not be required to pay any taxes, penalties, interest or other expenses to which Executive may be subject.

Limitation on Benefits. The Company will make the payments under (a) Notwithstanding anything contained in this Agreement without regard to whether the deductibility contrary, to the extent that any payment, benefit or distribution of such payments (any type to or for the benefit of the Executive by the Company or any of its Affiliates, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any accelerated vesting of stock options or other payments or benefitsequity-based awards, if any) (collectively, the “Total Payments”) would be limited or precluded by subject to the excise tax imposed under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then the Total Payments shall be reduced (but not below zero) and without regard so that the maximum amount of the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Total Payments to whether such payments would be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Code imposed by Section 4999 of the Code; provided, however, that if . Unless the Executive shall have given prior Written notice to the Company to effectuate a reduction in the Total After-Tax Payments (as defined below) would be increased by if such a reduction is required, any such notice consistent with the reduction or elimination requirements of Section 409A of the Code to avoid the imputation of any payment and/or other benefit tax, penalty or interest thereunder, the Company shall reduce or eliminate the Total Payments by first reducing or eliminating any cash severance benefits (including with the vesting of payments to be made furthest in the options) under this Agreementfuture being reduced first), then the amounts payable under this Agreement will be reduced or eliminated as follows, if possible: (i) first, by reducing or eliminating any cash payments or other benefits (other than the accelerated vesting of the options) and (ii) secondstock options or similar awards, if any, then by reducing or eliminating the any accelerated vesting of restricted stock or similar awards, if any, then by reducing or eliminating any other remaining Total Payments. The preceding provisions of this Section 5.7(a) shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation. (b) Any determination that options that occurs as Total Payments to the Executive must be reduced or eliminated in accordance with Section 5.7(a) and the assumptions to be utilized in arriving at such determination, shall be made by the Parent Board in the exercise of its reasonable, good faith discretion based upon the advice of such professional advisors it may deem appropriate in the circumstances. As a result of such Change the uncertainty in Control (as provided above)the application of Section 4999 of the Code at the time of the initial determination by the Parent Board hereunder, it is possible that Total Payments to the extent necessary to maximize Executive which will not have been made by the Total After-Tax PaymentsCompany should have been made (“Underpayment”). The Company’s independentIf an Underpayment has occurred, certified public accounting firm will determine whether and to what extent payments or vesting under this agreement are required to the amount of any such Underpayment shall be reduced in accordance with promptly paid by the preceding sentence. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made Company to or for the benefit of the Executive together with interest on such amount (whether at the same rate as is applied to determine the present value of payments under Section 280G of the Code or any successor thereto). In the event that any Total Payment made to the Executive shall be determined to otherwise result in the imposition of any tax under the Agreement or otherwise), after reduction for all applicable federal taxes (including, without limitation, the tax described in Section 4999 of the CodeCode and a reduction in Total Payments is required pursuant to Section 5.7(a). The , then the Executive shall promptly repay to the Company agrees the amount of any such overpayment together with interest on such amount (at the same rate as is applied to pay for all costs associated with determine the determination present value of payments under Section 280G of the payments Code or vesting any successor thereto), from the date the reimbursable payment was received by the Executive to the date the same is repaid to the Company. (c) If any portion of the Total Payments would otherwise be subject to the excise tax imposed by Section 4999 of the Code (before giving effect to any reduction in Total Payments contemplated by Section 5.7(a)), the Company shall use its reasonable efforts to seek (in a manner which satisfies all applicable requirements of such Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations) the approval by such number of shareholders of the Company as is required by the terms of Section 280G(b)(5)(B) of the Code so as to render the parachute payment provisions of Section 280G of the Code inapplicable to the Total Payments that would be reduced and for the avoidance or eliminated by operation of doubt, shall Section 5.7(a) if such shareholder approval was not be required to pay any taxes, penalties, interest or other expenses to which Executive may be subjectobtained.

Limitation on Benefits. The Company will make the payments under (a) Notwithstanding anything contained in this Agreement without regard to whether the deductibility contrary, except as provided in Section 7(d), to the extent that any payment, benefit or distribution of such payments (any type to or for the benefit of the Participant by the Company or any of its Affiliates, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any accelerated vesting of stock options or other payments or benefitsequity-based awards) (collectively, the “Total Payments”) would be limited or precluded by subject to the excise tax imposed under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then the Total Payments shall be reduced (but not below zero) and without regard so that the maximum amount of the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Total Payments to whether such payments would be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Code imposed by Section 4999 of the Code; provided, however, that if . Unless the Participant shall have given prior written notice to the Company to effectuate a reduction in the Total After-Tax Payments (as defined below) would be increased by if such a reduction is required, any such notice consistent with the reduction or elimination requirements of Section 409A of the Code to avoid the imputation of any payment and/or other benefit tax, penalty or interest thereunder, the Company shall reduce or eliminate the Total Payments by first reducing or eliminating any cash severance benefits (including with the vesting of payments to be made furthest in the options) under this Agreementfuture being reduced first), then the amounts payable under this Agreement will be reduced or eliminated as follows, if possible: (i) first, by reducing or eliminating any cash payments or other benefits (other than the accelerated vesting of the options) and (ii) secondstock options or similar awards, then by reducing or eliminating the any accelerated vesting of restricted stock or similar awards, then by reducing or eliminating any other remaining Total Payments. This Section 7 shall take precedence over the provisions of any other plan, arrangement or agreement governing the Participant’s rights and entitlements to any benefits or compensation. (b) Any determination that options that occurs as Total Payments to the Participant must be reduced or eliminated in accordance with Section 7(a) and the assumptions to be utilized in arriving at such determination, shall be made by the Board in the exercise of its reasonable, good faith discretion based upon the advice of such professional advisors it may deem appropriate in the circumstances. As a result of such Change the uncertainty in Control (as provided above)the application of Section 4999 of the Code at the time of the initial determination by the Board hereunder, it is possible that Total Payments to the extent necessary Participant which will not have been made by the Company should have been made (“Underpayment”) or that Total Payments to maximize the Total After-Tax PaymentsParticipant which were made should not have been made (“Overpayment”). The Company’s independentIf an Underpayment has occurred, certified public accounting firm will determine whether and to what extent payments or vesting under this agreement are required to the amount of any such Underpayment shall be reduced in accordance with promptly paid by the preceding sentence. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made Company to or for the benefit of Executive the Participant. In the event of an Overpayment, then the Participant shall promptly repay to the Company the amount of any such Overpayment together with interest on such amount (whether made at the same rate as is applied to determine the present value of payments under Section 280G of the Agreement Code or otherwiseany successor thereto), after reduction for all applicable federal taxes from the date the reimbursable payment was received by the Participant to the date the same is repaid to the Company. (including, without limitation, c) If any portion of the Total Payments would otherwise be subject to the excise tax described in imposed by Section 4999 of the CodeCode (before giving effect to any reduction in Total Payments contemplated by Section 7(a)), the Company shall use its reasonable efforts to obtain (in a manner which satisfies all applicable requirements of such Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations) the approval by such number of shareholders of the Company as is required by the terms of Section 280G(b)(5)(B) of the Code so as to render the parachute payment provisions of Section 280G of the Code inapplicable to the Total Payments that would be reduced or eliminated by operation of Section 7(a) if such shareholder approval was not obtained. (d) Notwithstanding Section 7(a), the Company will pay the full amount of the Total Payments to the Participant if the Participant makes the Company and its Affiliates whole on an after tax basis for any adverse tax consequences imposed on the Company and its Affiliates under Section 280G of the Code as a result of paying the Total Payments to the Participant. The Company agrees acknowledges that the adverse tax consequences to pay for all costs associated with it will be limited by the determination of the payments or vesting required to be reduced and for the avoidance of doubt, shall not be required to pay any taxes, penalties, interest or other expenses extent to which Executive may be subjectit is subject to U.S. income tax.

Limitation on Benefits. The Company will make the payments under (a) Notwithstanding anything contained in this Agreement without regard to whether the deductibility contrary, to the extent that any payment, benefit or distribution of such payments (any type to or for the benefit of the Executive by the Company or any of its affiliates, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any accelerated vesting of stock options or other payments or benefitsequity-based awards) (collectively, the “Total Payments”) would be limited or precluded by subject to the excise tax imposed under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then the Total Payments shall be reduced (but not below zero) and without regard so that the maximum amount of the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Total Payments to whether such payments would be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Code imposed by Section 4999 of the Code; provided, however, provided that such reduction to the Total Payments shall only be made if the total after-tax benefit to the Executive is greater after giving effect to such reduction than if no such reduction had been made. If such reduction is required, the Company shall reduce or eliminate the Total After-Tax Payments by first reducing or eliminating any cash severance benefits (as defined belowwith the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of stock options or similar awards, then by reducing or eliminating any accelerated vesting of restricted stock or similar awards, then by reducing or eliminating any other remaining Total Payments. The preceding provisions of this Section 5.7(a) would be increased by shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation. If the reduction or elimination of any payment and/or other benefit (including the vesting of the options) under this Agreementamounts payable hereunder and pursuant to the equity-based award agreements would not result in a greater after tax result to Executive, then the no amounts payable under this Agreement will shall be reduced pursuant to this provision. (b) Any determination that Total Payments to the Executive must be reduced or eliminated as follows, if possible: (i) first, by reducing or eliminating any cash payments or other benefits (other than the vesting of the optionsin accordance with Section 5.7(a) and (ii) secondthe assumptions to be utilized in arriving at such determination, shall be made by reducing or eliminating the vesting Board in the exercise of that options that occurs as its reasonable, good faith discretion based upon the advice of such professional advisors it may deem appropriate in the circumstances. As a result of such Change the uncertainty in Control (as provided above)the application of Section 4999 of the Code at the time of the initial determination by the Board hereunder, it is possible that Total Payments to the extent necessary to maximize Executive which will not have been made by the Total After-Tax PaymentsCompany should have been made (“Underpayment”). The Company’s independentIf an Underpayment has occurred, certified public accounting firm will determine whether and to what extent payments or vesting under this agreement are required to the amount of any such Underpayment shall be reduced in accordance with promptly paid by the preceding sentence. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made Company to or for the benefit of the Executive (whether together with interest on such amount at the same rate is applied to determine the present value of payments under Section 280G of the Code or any successor thereto). In the event that any Total Payment made to the Executive shall be determined to otherwise result in the imposition of any tax under the Agreement or otherwise), after reduction for all applicable federal taxes (including, without limitation, the tax described in Section 4999 of the CodeCode and a reduction in Total Payments is required pursuant to Section 5.7(a). The , then the Executive shall promptly repay to the Company agrees the amount of any such overpayment together with interest on such amount (at the same rate as is applied to pay for all costs associated with determine the determination present value of payments under Section 280G of the payments Code or vesting required any successor thereto), from the date the reimbursable payment was received by the Executive to be reduced and for the avoidance of doubt, shall not be required date the same is repaid to pay any taxes, penalties, interest or other expenses to which Executive may be subjectthe Company.

Limitation on Benefits. The Company will make the payments under (a) Notwithstanding anything contained in this Agreement without regard to whether the deductibility contrary, to the extent that any payment, benefit or distribution of such payments (any type to or for the benefit of the Executive by the Company or any of its Affiliates, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any accelerated vesting of stock options or other payments or benefitsequity-based awards) (collectively, the “Total Payments”) would be limited or precluded by subject to the excise tax imposed under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then the Total Payments shall be reduced (but not below zero) and without regard so that the maximum amount of the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Total Payments to whether such payments would be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Code imposed by Section 4999 of the Code; provided, however, that if . Unless the Executive shall have given prior written notice to the Company to effectuate a reduction in the Total After-Tax Payments (as defined below) would be increased by if such a reduction is required, any such notice consistent with the reduction or elimination requirements of Section 409A of the Code to avoid the imputation of any payment and/or other benefit tax, penalty or interest thereunder, the Company shall reduce or eliminate the Total Payments by first reducing or eliminating any cash severance benefits (including with the vesting of payments to be made furthest in the options) under this Agreementfuture being reduced first), then the amounts payable under this Agreement will be reduced or eliminated as follows, if possible: (i) first, by reducing or eliminating any cash payments or other benefits (other than the accelerated vesting of the options) and (ii) secondstock options or similar awards, then by reducing or eliminating the any accelerated vesting of restricted stock or similar awards, then by reducing or eliminating any other remaining Total Payments. The preceding provisions of this Section 5.7(a) shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation. (b) Any determination that options that occurs as Total Payments to the Executive must be reduced or eliminated in accordance with Section 5.7(a) and the assumptions to be utilized in arriving at such determination, shall be made by the Parent Board in the exercise of its reasonable, good faith discretion based upon the advice of such professional advisors it may deem appropriate in the circumstances. As a result of such Change the uncertainty in Control (as provided above)the application of Section 4999 of the Code at the time of the initial determination by the Parent Board hereunder, it is possible that Total Payments to the extent necessary to maximize Executive which will not have been made by the Total After-Tax PaymentsCompany should have been made (“Underpayment”). The Company’s independentIf an Underpayment has occurred, certified public accounting firm will determine whether and to what extent payments or vesting under this agreement are required to the amount of any such Underpayment shall be reduced in accordance with promptly paid by the preceding sentence. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made Company to or for the benefit of the Executive together with interest on such amount (whether at the same rate as is applied to determine the present value of payments under Section 280G of the Code or any successor thereto). In the event that any Total Payment made to the Executive shall be determined to otherwise result in the imposition of any tax under the Agreement or otherwise), after reduction for all applicable federal taxes (including, without limitation, the tax described in Section 4999 of the CodeCode and a reduction in Total Payments is required pursuant to Section 5.7(a). The , then the Executive shall promptly repay to the Company agrees the amount of any such overpayment together with interest on such amount (at the same rate as is applied to pay for all costs associated with determine the determination present value of payments under Section 280G of the payments Code or vesting required any successor thereto), from the date the reimbursable payment was received by the Executive to be reduced and for the avoidance of doubt, shall not be required date the same is repaid to pay any taxes, penalties, interest or other expenses to which Executive may be subjectthe Company.

Limitation on Benefits. The Company will make the payments under this Agreement without regard to whether the deductibility of such payments (or any other payments or benefits) would be limited or precluded by Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and without regard to whether such payments would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Code Section 4999 of the Code; provided, however, that if the Total After-Tax Payments (as defined below) would be increased by the reduction or elimination of any payment and/or other benefit (including the vesting of the options) under this Agreement, then the amounts payable under this Agreement will be reduced or eliminated as follows, if possible: (i) first, by reducing or eliminating any cash payments or other benefits (other than the vesting of the options) and (ii) second, by reducing or eliminating the vesting of that options that occurs as a result of such Change in Control (as provided above) and (ii) second, by reducing or eliminating any cash payments or other benefits (other than the vesting of the options), to the extent necessary to maximize the Total After-Tax Payments. The Company’s independent, certified public accounting firm will determine whether and to what extent payments or vesting under this agreement are required to be reduced in accordance with the preceding sentence. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made to or for the benefit of Executive (whether made under the Agreement or otherwise), after reduction for all applicable federal taxes (including, without limitation, the tax described in Section 4999 of the Code). The Company agrees to pay for all costs associated with the determination of the payments or vesting required to be reduced and for andfor the avoidance of doubt, shall not be required to pay any taxes, penalties, interest or other expenses to which Executive may be subject.

Limitation on Benefits. The Company will make the payments under (a) Notwithstanding anything contained in this Agreement without regard to whether the deductibility contrary, to the extent that any payment, benefit or distribution of such payments (any type to or for the benefit of the Executive by the Company or any of its Affiliates, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any accelerated vesting of stock options or other payments or benefitsequity-based awards) (collectively, the “Total Payments”) would be limited or precluded by subject to the excise tax imposed under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then the Total Payments shall be reduced (but not below zero) and without regard so that the maximum amount of the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Total Payments to whether such payments would be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Code imposed by Section 4999 of the Code; provided, however, that if . Unless the Executive shall have given prior written notice to the Company to effectuate a reduction in the Total After-Tax Payments (as defined below) would be increased by if such a reduction is required, any such notice consistent with the reduction or elimination requirements of Section 409A of the Code to avoid the imputation of any payment and/or other benefit tax, penalty or interest thereunder, the Company shall reduce or eliminate the Total Payments by first reducing or eliminating any cash severance benefits (including with the vesting of payments to be made furthest in the options) under this Agreementfuture being reduced first), then the amounts payable under this Agreement will be reduced or eliminated as follows, if possible: (i) first, by reducing or eliminating any cash payments or other benefits (other than the accelerated vesting of the options) and (ii) secondstock options or similar awards, then by reducing or eliminating the any accelerated vesting of restricted stock or similar awards, then by reducing or eliminating any other remaining Total Payments. The preceding provisions of this Section 5.7(a) shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation. (b) Any determination that options that occurs as Total Payments to the Executive must be reduced or eliminated in accordance with Section 5.7(a) and the assumptions to be utilized in arriving at such determination, shall be made by the Parent Board in the exercise of its reasonable, good faith discretion based upon the advice of such professional advisors it may deem appropriate in the circumstances. As a result of such Change the uncertainty in Control (as provided above)the application of Section 4999 of the Code at the time of the initial determination by the Parent Board hereunder, it is possible that Total Payments to the extent necessary to maximize Executive which will not have been made by the Total After-Tax PaymentsCompany should have been made (“Underpayment”). The Company’s independentIf an Underpayment has occurred, certified public accounting firm will determine whether and to what extent payments or vesting under this agreement are required to the amount of any such Underpayment shall be reduced in accordance with promptly paid by the preceding sentence. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made Company to or for the benefit of the Executive together with interest on such amount (whether at the same rate as is applied to determine the present value of payments under Section 280G of the Code or any successor thereto). In the event that any Total Payment made to the Executive shall be determined to otherwise result in the imposition of any tax under the Agreement or otherwise), after reduction for all applicable federal taxes (including, without limitation, the tax described in Section 4999 of the CodeCode and a reduction in Total Payments is required pursuant to Section 5.7(a). The , then the Executive shall promptly repay to the Company agrees the amount of any such overpayment together with interest on such amount (at the same rate as is applied to pay for all costs associated with determine the determination present value of payments under Section 280G of the payments Code or vesting any successor thereto), from the date the reimbursable payment was received by the Executive to the date the same is repaid to the Company. (c) If any portion of the Total Payments would otherwise be subject to the excise tax imposed by Section 4999 of the Code (before giving effect to any reduction in Total Payments contemplated by Section 5.7(a)), the Company shall use its reasonable efforts to seek (in a manner which satisfies all applicable requirements of such Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations) the approval by such number of shareholders of the Company as is required by the terms of Section 280G(b)(5)(B) of the Code so as to render the parachute payment provisions of Section 280G of the Code inapplicable to the Total Payments that would be reduced and for the avoidance or eliminated by operation of doubt, shall Section 5.7(a) if such shareholder approval was not be required to pay any taxes, penalties, interest or other expenses to which Executive may be subjectobtained.

Limitation on Benefits. The Company will make the payments under this Agreement without regard to whether the deductibility of such payments (or any other payments or benefits) would be limited or precluded by Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") and without regard to whether such payments would subject Executive to the federal excise tax levied on certain “"excess parachute payments” " under Code Section 4999 of the CodeCode (the "Excise Tax"); provided, however, that if the Total After-Tax Payments (as defined below) would be increased by the reduction or elimination of any payment and/or other benefit (including the vesting of the options) under this Agreement, then the amounts payable under this Agreement will be reduced or eliminated as follows, if possible: (i) first, by reducing or eliminating any cash payments or other benefits (other than the vesting of the options) and (ii) second, by reducing or eliminating the vesting of that options that occurs as a result of such Change in Control (as provided above), to the extent necessary to maximize the Total After-Tax Payments. The Company’s 's independent, certified public accounting firm (the "Accounting Firm") will determine whether and to what extent payments or vesting under this agreement are required to be reduced in accordance with the preceding sentence. For purposes of this Agreement, “"Total After-Tax Payments” " means the total of all “"parachute payments” " (as that term is defined in Section 280G(b)(2) of the Code) made to or for the benefit of Executive (whether made under the Agreement or otherwise)) by the Company or any of its affiliates, after reduction for all applicable federal taxes (includingstate and local income taxes, without limitationemployment, social security and Medicare taxes, the tax described in Section 4999 imposition of the Code)Excise Tax and all other taxes, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied (or is likely to apply) to the Employee's taxable income for the tax year in which the transaction which causes the application of Section 280G of the Code occurs, or such other rate(s) as the Accounting Firm determines to be likely to apply to the Executive in the relevant tax year(s) in which any of the parachute payments is expected to be made) than if the Employee received all of the parachute payments. The Company agrees to pay for all costs associated with the Accounting Firm and the determination of the payments or vesting required to be reduced and for the avoidance of doubt, shall not be required to pay any taxes, penalties, interest or other expenses to which Executive may be subject. If it is ultimately determined (by IRS private letter ruling or closing agreement, court decision or otherwise) that Executive's parachute payments were reduced by too much or by too little in order to accomplish the purpose of this Section 5.6, the Executive and the Company shall promptly cooperate to correct such underpayment or overpayment in a manner consistent with the purpose of this Section 5.6.

Limitation on Benefits. The Company will make the payments under this Agreement without regard to whether the deductibility of such payments (or any other payments or benefits) would be limited or precluded by Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") and without regard to whether such payments would subject Executive to the federal excise tax levied on certain “"excess parachute payments” " under Code Section 4999 of the CodeCode (the "Excise Tax"); provided, however, that if the Total After-Tax Payments (as defined below) would be increased by the reduction or elimination of any payment and/or other benefit (including the vesting of the options) under this Agreement, then the amounts payable under this Agreement will be reduced or eliminated as follows, if possible: (i) first, by reducing or eliminating any cash payments or other benefits (other than the vesting of the options) and (ii) second, by reducing or eliminating the vesting of that options that occurs as a result of such Change in Control (as provided above), to the extent necessary to maximize the Total After-Tax Payments. The Company’s 's independent, certified public accounting firm (the "Accounting Firm") will determine whether and to what extent payments or vesting under this agreement are required to be reduced in accordance with the preceding sentence. For purposes of this Agreement, “"Total After-Tax Payments” " means the total of all “"parachute payments” " (as that term is defined in Section 280G(b)(2) of the Code) made to or for the benefit of Executive Employee (whether made under the Agreement or otherwise)) by the Company or any of its affiliates, after reduction for all applicable federal taxes (includingstate and local income taxes, without limitationemployment, social security and Medicare taxes, the tax described in Section 4999 imposition of the Code)Excise Tax and all other taxes, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied (or is likely to apply) to the Employee's taxable income for the tax year in which the transaction which causes the application of Section 280G of the Code occurs, or such other rate(s) as the Accounting Firm determines to be likely to apply to the Employee in the relevant tax year(s) in which any of the parachute payments is expected to be made than if the Employee received all of the parachute payments. The Company agrees to pay for all costs associated with the Accounting Firm and the determination of the payments or vesting required to be reduced and for the avoidance of doubt, shall not be required to pay any taxes, penalties, interest or other expenses to which Executive may be subject. If it is ultimately determined (by IRS private letter ruling or closing agreement, court decision or otherwise) that Employee parachute payments were reduced by too much or by too little in order to accomplish the purpose of this Section 19, the Employee and the Company shall promptly cooperate to correct such underpayment or overpayment in a manner consistent with the purpose of this Section 19.

Limitation on Benefits. The Company will make the payments under (a) Notwithstanding anything contained in this Agreement without regard to whether the deductibility contrary, except as provided in Section 5.7(d), to the extent that any payment, benefit or distribution of such payments (any type to or for the benefit of the Executive by the Company or any of its Affiliates, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any accelerated vesting of stock options or other payments or benefitsequity-based awards) (collectively, the “Total Payments”) would be limited or precluded by subject to the excise tax imposed under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then the Total Payments shall be reduced (but not below zero) and without regard so that the maximum amount of the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Total Payments to whether such payments would be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Code imposed by Section 4999 of the Code; provided, however, that if . Unless the Executive shall have given prior written notice to the Company to effectuate a reduction in the Total After-Tax Payments (as defined below) would be increased by if such a reduction is required, any such notice consistent with the reduction or elimination requirements of Section 409A of the Code to avoid the imputation of any payment and/or other benefit tax, penalty or interest thereunder, the Company shall reduce or eliminate the Total Payments by first reducing or eliminating any cash severance benefits (including with the vesting of payments to be made furthest in the options) under this Agreementfuture being reduced first), then the amounts payable under this Agreement will be reduced or eliminated as follows, if possible: (i) first, by reducing or eliminating any cash payments or other benefits (other than the accelerated vesting of the options) and (ii) secondstock options or similar awards, then by reducing or eliminating the any accelerated vesting of restricted stock or similar awards, then by reducing or eliminating any other remaining Total Payments. This Section 5.7 shall take precedence over the provisions of any other Company Arrangement. (b) Any initial determination that options that occurs as Total Payments to the Executive must be reduced or eliminated in accordance with Section 5.7(a) and the assumptions to be utilized in arriving at such determination, shall be made by the Board in the exercise of its reasonable, good faith discretion based upon the advice of such professional advisors it may deem appropriate in the circumstances. As a result of such Change the uncertainty in Control (as provided above)the application of Section 4999 of the Code at the time of the initial determination by the Board hereunder, it is possible that Total Payments to the extent necessary Executive which will not have been made should have been made (“Underpayment”) or that Total Payments to maximize the Total After-Tax PaymentsExecutive which were made should not have been made (“Overpayment”). The Company’s independentIf an Underpayment has occurred, certified public accounting firm will determine whether and to what extent payments or vesting under this agreement are required to the amount of any such Underpayment shall be reduced in accordance with the preceding sentence. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made promptly paid to or for the benefit of the Executive. In the event of an Overpayment, then the Executive shall promptly repay the amount of any such Overpayment together with interest on such amount (whether made at the same rate as is applied to determine the present value of payments under Section 280G of the Agreement Code or otherwiseany successor thereto), after reduction for all applicable federal taxes from the date the reimbursable payment was received by the Executive to the date the same is repaid. (including, without limitation, c) If any portion of the Total Payments would otherwise be subject to the excise tax described in imposed by Section 4999 of the CodeCode (before giving effect to any reduction in Total Payments contemplated by Section 5.7(a). The ), the Company agrees shall use its reasonable efforts to pay for obtain (in a manner which satisfies all costs associated with the determination applicable requirements of such Section 280G(b)(5)(B) of the payments or vesting Code and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations) the approval by such number of shareholders of the Company as is required by the terms of Section 280G(b)(5)(B) of the Code so as to render the parachute payment provisions of Section 280G of the Code inapplicable to the Total Payments that would be reduced or eliminated by operation of Section 5.7(a) if such shareholder approval was not obtained. (d) Notwithstanding anything in Section 5.7(a) or elsewhere to the contrary, the Company and its Affiliates will pay the full amount of the Total Payments to the Executive if the Executive makes the Company and its Affiliates whole on an after-tax basis for any adverse tax consequences imposed on the avoidance Company and its Affiliates under Section 280G of doubt, shall not be required the Code as a result of paying the Total Payments to pay any taxes, penalties, interest or other expenses to which Executive may be subjectthe Executive.

Limitation on Benefits. The Company will make the payments under (a) Notwithstanding anything contained in this Agreement without regard to whether the deductibility contrary, except as provided in Section 8(d), to the extent that any payment, benefit or distribution of such payments (any type to or for the benefit of the Participant by the Company or any of its Affiliates, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any accelerated vesting of stock options or other payments or benefitsequity-based awards) (collectively, the “Total Payments”) would be limited or precluded by subject to the excise tax imposed under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then the Total Payments shall be reduced (but not below zero) and without regard so that the maximum amount of the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Total Payments to whether such payments would be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Code imposed by Section 4999 of the Code; provided, however, that if . Unless the Participant shall have given prior written notice to the Company to effectuate a reduction in the Total After-Tax Payments (as defined below) would be increased by if such a reduction is required, any such notice consistent with the reduction or elimination requirements of Section 409A of the Code to avoid the imputation of any payment and/or other benefit tax, penalty or interest thereunder, the Company shall reduce or eliminate the Total Payments by first reducing or eliminating any cash severance benefits (including with the vesting of payments to be made furthest in the options) under this Agreementfuture being reduced first), then the amounts payable under this Agreement will be reduced or eliminated as follows, if possible: (i) first, by reducing or eliminating any cash payments or other benefits (other than the accelerated vesting of the options) and (ii) secondstock options or similar awards, then by reducing or eliminating the any accelerated vesting of restricted stock or similar awards, then by reducing or eliminating any other remaining Total Payments. This Section 8 shall take precedence over the provisions of any other plan, arrangement or agreement governing the Participant’s rights and entitlements to any benefits or compensation. [M-4 Prime RSU (November 2016)] (b) Any determination that options that occurs as Total Payments to the Participant must be reduced or eliminated in accordance with Section 8(a) and the assumptions to be utilized in arriving at such determination, shall be made by the Board in the exercise of its reasonable, good faith discretion based upon the advice of such professional advisors it may deem appropriate in the circumstances. As a result of such Change the uncertainty in Control (as provided above)the application of Section 4999 of the Code at the time of the initial determination by the Board hereunder, it is possible that Total Payments to the extent necessary Participant which will not have been made by the Company should have been made (“Underpayment”) or that Total Payments to maximize the Total After-Tax PaymentsParticipant which were made should not have been made (“Overpayment”). The Company’s independentIf an Underpayment has occurred, certified public accounting firm will determine whether and to what extent payments or vesting under this agreement are required to the amount of any such Underpayment shall be reduced in accordance with promptly paid by the preceding sentence. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made Company to or for the benefit of Executive the Participant. In the event of an Overpayment, then the Participant shall promptly repay to the Company the amount of any such Overpayment together with interest on such amount (whether made at the same rate as is applied to determine the present value of payments under Section 280G of the Agreement Code or otherwiseany successor thereto), after reduction for all applicable federal taxes from the date the reimbursable payment was received by the Participant to the date the same is repaid to the Company. (including, without limitation, c) If any portion of the Total Payments would otherwise be subject to the excise tax described in imposed by Section 4999 of the CodeCode (before giving effect to any reduction in Total Payments contemplated by Section 8(a). The ), the Company agrees shall use its reasonable efforts to pay for obtain (in a manner which satisfies all costs associated with the determination applicable requirements of Section 280G(b)(5)(B) of the payments or vesting Code and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations) the approval by such number of shareholders of the Company as is required by the terms of Section 280G(b)(5)(B) of the Code so as to render the parachute payment provisions of Section 280G of the Code inapplicable to the Total Payments that would be reduced or eliminated by operation of Section 8(a) if such shareholder approval was not obtained. (d) Notwithstanding Section 8(a), the Company will pay the full amount of the Total Payments to the Participant if the Participant makes the Company and its Affiliates whole on an after tax basis for any adverse tax consequences imposed on the avoidance Company and its Affiliates under Section 280G of doubt, shall not be required the Code as a result of paying the Total Payments to pay any taxes, penalties, interest or other expenses to which Executive may be subjectthe Participant.

Limitation on Benefits. The Company will make the payments under (a) Notwithstanding anything contained in this Agreement without regard to whether the deductibility contrary, to the extent that any payment, benefit or distribution of such payments (any type to or for the benefit of the Executive by the Company or any of its Affiliates, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any accelerated vesting of stock options or other payments or benefitsequity-based awards, if any) (collectively, the “Total Payments”) would be limited or precluded by subject to the excise tax imposed under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then the Total Payments shall be reduced (but not below zero) and without regard so that the maximum amount of the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Total Payments to whether such payments would be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Code imposed by Section 4999 of the Code; provided, however, that if . Unless the Executive shall have given prior written notice to the Company to effectuate a reduction in the Total After-Tax Payments (as defined below) would be increased by if such a reduction is required, any such notice consistent with the reduction or elimination requirements of Section 409A of the Code to avoid the imputation of any payment and/or other benefit tax, penalty or interest thereunder, the Company shall reduce or eliminate the Total Payments by first reducing or eliminating any cash severance benefits (including with the vesting of payments to be made furthest in the options) under this Agreementfuture being reduced first), then the amounts payable under this Agreement will be reduced or eliminated as follows, if possible: (i) first, by reducing or eliminating any cash payments or other benefits (other than the accelerated vesting of the options) and (ii) secondstock options or similar awards, if any, then by reducing or eliminating the any accelerated vesting of restricted stock or similar awards, if any, then by reducing or eliminating any other remaining Total Payments. The preceding provisions of this Section 5.7(a) shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation. (b) Any determination that options that occurs as Total Payments to the Executive must be reduced or eliminated in accordance with Section 5.7(a) and the assumptions to be utilized in arriving at such determination, shall be made by the Parent Board in the exercise of its reasonable, good faith discretion based upon the advice of such professional advisors it may deem appropriate in the circumstances. As a result of such Change the uncertainty in Control (as provided above)the application of Section 4999 of the Code at the time of the initial determination by the Parent Board hereunder, it is possible that Total Payments to the extent necessary to maximize Executive which will not have been made by the Total After-Tax PaymentsCompany should have been made (“Underpayment”). The Company’s independentIf an Underpayment has occurred, certified public accounting firm will determine whether and to what extent payments or vesting under this agreement are required to the amount of any such Underpayment shall be reduced in accordance with promptly paid by the preceding sentence. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made Company to or for the benefit of the Executive together with interest on such amount (whether at the same rate as is applied to determine the present value of payments under Section 280G of the Code or any successor thereto). In the event that any Total Payment made to the Executive shall be determined to otherwise result in the imposition of any tax under the Agreement or otherwise), after reduction for all applicable federal taxes (including, without limitation, the tax described in Section 4999 of the CodeCode and a reduction in Total Payments is required pursuant to Section 5.7(a). The , then the Executive shall promptly repay to the Company agrees the amount of any such overpayment together with interest on such amount (at the same rate as is applied to pay for all costs associated with determine the determination present value of payments under Section 280G of the payments Code or vesting required any successor thereto), from the date the reimbursable payment was received by the Executive to be reduced and for the avoidance of doubt, shall not be required date the same is repaid to pay any taxes, penalties, interest or other expenses to which Executive may be subjectthe Company.

Limitation on Benefits. The Company will make the payments under this Agreement without regard to whether the deductibility of such payments (or any other payments or benefits) would be limited or precluded by Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and without regard to whether such payments would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Code Section 4999 of the CodeCode (the “Excise Tax”); provided, however, that if the Total After-Tax Payments (as defined below) would be increased by the reduction or elimination of any payment and/or other benefit (including the vesting of the options) under this Agreement, then the amounts payable under this Agreement will be reduced or eliminated as follows, if possible: (i) first, by reducing or eliminating any cash payments or other benefits (other than the vesting of the options) and (ii) second, by reducing or eliminating the vesting of that options that occurs as a result of such Change in Control (as provided above), to the extent necessary to maximize the Total After-Tax Payments. The Company’s independent, certified public accounting firm (the “Accounting Firm”) will determine whether and to what extent payments or vesting under this agreement are required to be reduced in accordance with the preceding sentence. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made to or for the benefit of Executive Employee (whether made under the Agreement or otherwise)) by the Company or any of its affiliates, after reduction for all applicable federal taxes (includingstate and local income taxes, without limitationemployment, social security and Medicare taxes, the tax described in Section 4999 imposition of the Code)Excise Tax and all other taxes, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied (or is likely to apply) to the Employee’s taxable income for the tax year in which the transaction which causes the application of Section 280G of the Code occurs, or such other rate(s) as the Accounting Firm determines to be likely to apply to the Employee in the relevant tax year(s) in which any of the parachute payments is expected to be made) than if the Employee received all of the parachute payments. The Company agrees to pay for all costs associated with the Accounting Firm and the determination of the payments or vesting required to be reduced and for the avoidance of doubt, shall not be required to pay any taxes, penalties, interest or other expenses to which Executive Employee may be subject. If it is ultimately determined (by IRS private letter ruling or closing agreement, court decision or otherwise) that Employee parachute payments were reduced by too much or by too little in order to accomplish the purpose of this Section 5.6, the Employee and the Company shall promptly cooperate to correct such underpayment or overpayment in a manner consistent with the purpose of this Section 5.6.

Limitation on Benefits. The Company will make the payments under (a) Notwithstanding anything contained in this Agreement without regard to whether the deductibility contrary, except as provided in Section 8(d), to the extent that any payment, benefit or distribution of such payments (any type to or for the benefit of the Participant by the Company or any of its Affiliates, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any accelerated vesting of stock options or other payments or benefitsequity-based awards) (collectively, the “Total Payments”) would be limited or precluded by subject to the excise tax imposed under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then the Total Payments shall be reduced (but not below zero) and without regard so that the maximum amount of the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Total Payments to whether such payments would be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Code imposed by Section 4999 of the Code; provided, however, that if . Unless the Participant shall have given prior written notice to the Company to effectuate a reduction in the Total After-Tax Payments (as defined below) would be increased by if such a reduction is required, any such notice consistent with the reduction or elimination requirements of Section 409A of the Code to avoid the imputation of any payment and/or other benefit tax, penalty or interest thereunder, the Company shall reduce or eliminate the Total Payments by first reducing or eliminating any cash severance benefits (including with the vesting of payments to be made furthest in the options) under this Agreementfuture being reduced first), then the amounts payable under this Agreement will be reduced or eliminated as follows, if possible: (i) first, by reducing or eliminating any cash payments or other benefits (other than the accelerated vesting of the options) and (ii) secondstock options or similar awards, then by reducing or eliminating the any accelerated vesting of restricted stock or similar awards, then by reducing or eliminating any other remaining Total Payments. This Section 8 shall take precedence over the provisions of any other plan, arrangement or agreement governing the Participant’s rights and entitlements to any benefits or compensation. (b) Any determination that options that occurs as Total Payments to the Participant must be reduced or eliminated in accordance with Section 8(a) and the assumptions to be utilized in arriving at such determination, shall be made by the Board in the exercise of its reasonable, good faith discretion based upon the advice of such professional advisors it may deem appropriate in the circumstances. As a result of such Change the uncertainty in Control (as provided above)the application of Section 4999 of the Code at the time of the initial determination by the Board hereunder, it is possible that Total Payments to the extent necessary Participant which will not have been made by the Company should have been made (“Underpayment”) or that Total Payments to maximize the Total After-Tax PaymentsParticipant which were made should not have been made (“Overpayment”). The Company’s independentIf an Underpayment has occurred, certified public accounting firm will determine whether and to what extent payments or vesting under this agreement are required to the amount of any such Underpayment shall be reduced in accordance with promptly paid by the preceding sentence. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made Company to or for the benefit of Executive the Participant. In the event of an Overpayment, then the Participant shall promptly repay to the Company the amount of any such Overpayment together with interest on such amount (whether made at the same rate as is applied to determine the present value of payments under Section 280G of the Agreement Code or otherwiseany successor thereto), after reduction for all applicable federal taxes from the date the reimbursable payment was received by the Participant to the date the same is repaid to the Company. [M-4 RSU (including, without limitation, November 2016)] (c) If any portion of the Total Payments would otherwise be subject to the excise tax described in imposed by Section 4999 of the CodeCode (before giving effect to any reduction in Total Payments contemplated by Section 8(a)), the Company shall use its reasonable efforts to obtain (in a manner which satisfies all applicable requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations) the approval by such number of shareholders of the Company as is required by the terms of Section 280G(b)(5)(B) of the Code so as to render the parachute payment provisions of Section 280G of the Code inapplicable to the Total Payments that would be reduced or eliminated by operation of Section 8(a) if such shareholder approval was not obtained. (d) Notwithstanding Section 8(a), the Company will pay the full amount of the Total Payments to the Participant if the Participant makes the Company and its Affiliates whole on an after tax basis for any adverse tax consequences imposed on the Company and its Affiliates under Section 280G of the Code as a result of paying the Total Payments to the Participant. The Company agrees acknowledges that the adverse tax consequences to pay for all costs associated with it will be limited by the determination of the payments or vesting required to be reduced and for the avoidance of doubt, shall not be required to pay any taxes, penalties, interest or other expenses extent to which Executive may be subjectit is subject to U.S. income tax.