Common use of Limitation on Payments Clause in Contracts

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. Notwithstanding anything in this Agreement to the contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise (“Payment”) would (a) Notwithstanding any other provision constitute a “parachute payment” within the meaning of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (b) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), thenthen the Company shall cause to be determined, after taking into account before any reduction in the Total Payments provided by reason of Section 280G amounts of the Code Payment are paid to Executive, which of the following alternative forms of payment would maximize Executive’s after-tax proceeds: (i) payment in such other planfull of the entire amount of the Payment (a “Full Payment”), arrangement or agreement, (ii) payment of only a part of the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary Payment so that no portion of the Total Payments is Executive receives that largest Payment possible without being subject to the Excise Tax but only if (i) a “Reduced Payment”), whichever of the net amount of such Total Paymentsforegoing amounts, as so reduced (and after subtracting taking into account the net amount of applicable federal, state and local income taxes and the Excise Tax (all computed at the highest marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on such reduced Total Payments an after-tax basis, of the greater amount of the Payment, notwithstanding that all or some portion the Payment may be subject to the Excise Tax. (a) If a Reduced Payment is made pursuant to this Section 5, (i) the Payment shall be paid only to the extent permitted under the Reduced Payment alternative, and after taking into account Executive shall have no rights to any additional payments and/or benefits constituting the phase out of itemized deductions Payment, and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced payments and/or benefits will occur in the following order: (A1) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Codepayments; (B2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of any other cash payments or benefits otherwise payable to Executive. In the Executive event that are exempt acceleration of compensation from Section 409A of the CodeExecutive’s equity awards is to be reduced, but excluding any payments attributable to any such acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A shall be canceled in the reverse order of the Code; (C) reduction date of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in timegrant. (b) For The independent registered public accounting firm engaged by the Company for general audit purposes as of determining whether the day prior to the effective date of the Change in Control shall make all determinations required to be made under this Section 5. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, group or entity effecting the Change in Control, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. (c) The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within 15 calendar days after the extent date on which Executive’s right to which a Payment is triggered (if requested at that time by the Total Payments Company or Executive) or such other time as requested by the Company or Executive. If the independent registered public 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 shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be subject imposed with respect to the Excise Tax, (i) no portion such Payment. Any good faith determinations of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code accounting firm made hereunder shall be taken into account; (ii) no portion of final, binding and conclusive upon the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; Company and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the CodeExecutive.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreementanything to the contrary herein, in the event that the sum aggregate present value of (i) the Severance Payment payable under Section 6 hereof, (ii) any payment and all additional amount or benefit received benefits which may be paid or conferred to be received by the or on behalf of Executive in accordance with Section 7 hereof, and (including iii) any payment and all other amounts or benefit received benefits paid or conferred to or on behalf of Executive would constitute a “parachute payment” (“parachute payment” as used in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement shall be defined in accordance with Section 280G(b)(2), or any other plansuccessor thereto, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”amended), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reducedreduced (by the minimum possible amounts) until no amount payable to Executive under this Agreement constitutes a parachute payment; provided, and the noncash severance payments hereunder shall thereafter be reducedhowever, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only such reduction under this Section 8 shall be made if (i) the net amount of after-tax payment (after taking into account, Federal, state, local or other income and excise taxes) to which Executive would otherwise be entitled without such Total Payments, as so reduced (and after subtracting reduction would be greater than the net amount of federal, state and local income taxes on such reduced Total Payments and after-tax payment (after taking into account Federal, state, local or other income and excise taxes) to Executive resulting from the phase out receipt of itemized deductions and personal exemptions attributable such payments with such reduction. If, as a result of subsequent events or conditions (including a subsequent payment or absence of a subsequent payment under this Agreement), it is determined that payments hereunder have been reduced by more than the minimum amount required under this Section 8, then an additional payment shall be promptly made to such reduced Total Payments) is greater than or Executive in an amount equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federalexcess reduction. All determinations required to be made under this Section 8, state and local income taxes on such Total Payments including whether a payment would result in a parachute payment and the amount of Excise Tax assumptions to which the Executive would be subject utilized in respect of arriving at such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments determination, shall be reduced in made and approved within fifteen (15) days after the following order: Qualifying Termination by both (A1) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) accountants selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; Company and (iii2) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the CodeExecutive’s designated financial advisor.

Limitation on Payments. (a) Notwithstanding any other provision of Anything in this AgreementAgreement to the contrary notwithstanding, in the event that if any payment or benefit received Executive would receive from the Company or to be received by the Executive otherwise (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total PaymentsPayment”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2280G of the Code; and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (including by reason of Section 280G(b)(4)(Athe “Excise Tax”), then such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Code) and, Payment that would result in calculating no portion of the Payment being subject to the Excise Tax; or (y) the largest portion, no portion up to and including the total, of such Total Payments the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment. Any reduction made pursuant to this Section 5(a) shall be taken into account whichmade in accordance with the following order of priority: (i) stock options whose exercise price exceeds the fair market value of the optioned stock (“Underwater Options”) (ii) Full Credit Payments (as defined below) that are payable in cash, (iii) non-cash Full Credit Payments that are taxable, (iv) non-cash Full Credit Payments that are not taxable, (v) Partial Credit Payments (as defined below) and (vi) non-cash employee welfare benefits. In each case, reductions shall be made in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the excise tax will be the first payment or benefit to be reduced (with reductions made pro-rata in the opinion event payments or benefits are owed at the same time). “Full Credit Payment” means a payment, distribution or benefit, whether paid or payable or distributed or distributable pursuant to the terms of Independent Advisorsthis Agreement or otherwise, constitutes reasonable compensation for services actually rendered, within that if reduced in value by one dollar reduces the meaning of Section 280G(b)(4)(B) amount of the Code, in excess of the Base Amount parachute payment (as defined in Section 280G(b)(3) 280G of the Code) allocable to by one dollar, determined as if such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment payment, distribution or benefit included in had been paid or distributed on the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) date of the Codeevent triggering the excise tax. “Partial Credit Payment” means any payment, distribution or benefit that is not a Full Credit Payment. In no event shall Executive have any discretion with respect to the ordering of payment reductions.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in In the event that any payment the severance and other benefits provided for in this Plan or benefit received or otherwise payable to be received by a Participant (i) constitute “parachute payments” within the Executive (including any payment or benefit received in connection with a termination meaning of Section 280G of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) Code (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total 280G Payments”), and (ii) but for this Section 5, would be subject (in whole or part), to the excise tax imposed under by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in then the Total Payments provided by reason of Section 280G of the Code Payments will be either: (a) delivered in full, or (b) delivered as to such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the lesser extent necessary so that which would result in no portion of the Total Payments is such benefits being subject to the Excise Tax but only if (i) Tax, whichever of the net amount of such Total Paymentsforegoing amounts, as so reduced (and after subtracting taking into account the net amount of applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Participant on such reduced Total Payments and after taking into account an after-tax basis, of the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net greatest amount of such Total Payments without such reduction (but after subtracting the net amount of federalbenefits, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect notwithstanding that all or some portion of such unreduced Total benefits may be taxable under Section 4999 of the Code. If a reduction in the 280G Payments and after taking into account is necessary so that no portion of such benefits are subject to the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced Excise Tax, reduction will occur in the following order: (i) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G); (ii) a pro rata reduction of (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from subject to Section 409A as deferred compensation and (B) cash payments not subject to Section 409A of the Code; (iii) a pro rata reduction of (A) employee benefits that are subject to Section 409A as deferred compensation and (B) reduction employee benefits not subject to Section 409A; and (iv) a pro rata cancellation of (A) accelerated vesting equity awards that are subject to Section 409A as deferred compensation and (B) equity awards not subject to Section 409A. In the event that acceleration of vesting of equity awards is to be cancelled, such acceleration of vesting will be cancelled in the reverse order of the date of grant of a Participant’s equity awards. Unless Participant and the Company otherwise agree in writing, any other cash payments or benefits otherwise payable determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to the Executive that are exempt from Change in Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Participant and the Company. For purposes of making the calculations required by this Section 409A 5 the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether . Participant and the extent to which the Total Payments Company will be subject furnish to the Excise Tax, (i) no portion of Firm such information and documents as the Total Payments Firm may reasonably request in order to make a determination under this Section 5. The Company will bear all costs the receipt or enjoyment of which the Executive shall have waived at such time and Firm may incur in such manner as not to constitute a “payment” within the meaning of connection with any calculations contemplated by this Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code5.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in In the event that any payment or benefit received or to be received by the Executive pursuant to this Agreement or otherwise (including collectively the "Payments") would be subject to the Excise Tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any payment similar or benefit successor provision (the "Excise Tax"), the Company shall pay to the Executive within ninety (90) days of the Termination Date (or, if earlier, within ninety (90) days of the date the Executive becomes subject to the Excise Tax), an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax and any federal (and state and local) income tax on the Payments, shall be equal to the Payments minus all applicable taxes on the Payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of Excise Tax, (i) any other payments or benefits received or to be received in connection with a Change of Control of the Company or the Executive's termination of the Executive’s employment, employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including agreement with the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or partCompany), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner treated as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “"parachute payment” payments" within the meaning of Section 280G(b)(2) of the Code (including by reason or any similar or successor provision, and all "excess parachute payments" within meaning of Section 280G(b)(4)(A280G(b)(1) of the Code) and, in calculating or any similar or successor provision shall be treated as subject to the Excise Tax, no portion of such Total Payments shall be taken into account which, unless in the opinion of Independent Advisorstax counsel selected by the Company such other payments or benefits (in whole or in part) do not constitute parachute payments, constitutes or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B280G(b) or any similar or successor provision of the Code in excess of the base amount within the meaning of Section 280G(b)(3) or any similar or successor provision of the Code, in excess or are otherwise not subject to Excise Tax; (ii) the amount of the Base Amount Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (as defined in Section 280G(b)(3A) the total amount of the CodePayments or (B) allocable to such reasonable compensation; the amount of the excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (i) above), and (iii) the value of any non non-cash benefit benefits or any an deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors Company's independent auditors in accordance with the principles of Sections Section 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest nominal marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest nominal marginal rate of taxation in the state and locality of the Executive's residence on the Termination Date, net of the maximum reduction in federal income taxes which could be obtained from deducting of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal (and state and local) income tax imposed on the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax and/or a federal (and state and local) income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (including by reason of a payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest payable with respect to such excess) at the time that the amount of such excess is finally determined.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in In the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received Employee in connection with a the termination of the Executive’s employment, Employee's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreementagreement with the Company, any person whose actions result in a Change in Control of the Company or any person affiliated with the Company or such person) (all such payments and benefits, including collectively with the payments and benefits under Section 4 hereofhereunder, being hereinafter referred to as the “"Total Payments”") would not be subject deductible (in whole or part), to the excise tax imposed under Section 4999 ) as a result of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section section 280G of the Code in by the Company, an affiliate or other person making such other plan, arrangement payment or agreementproviding such benefit, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments benefits hereunder shall thereafter be reduced, to the extent necessary so that reduced until no portion of the Total Payments is subject not deductible, or the payments and benefits hereunder are reduced to the Excise Tax but only if (i) the net amount of such Total Paymentszero. At Employee's request, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting may be effected by extending the net amount of federal, state and local income taxes on such Total Payments and date the payment would otherwise be due by not more than five years or by decreasing the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments payment or benefit otherwise due and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments)payable. The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, this limitation (i) no portion of the Total Payments the receipt or enjoyment of which the Executive Employee shall have effectively waived at such time and in such manner as not writing prior to constitute a “payment” within the meaning date of Section 280G(b) of the Code payment shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) tax counsel selected by Employee and acceptable to the Company's independent auditors, does is not likely to constitute a “"parachute payment” " within the meaning of Section section 280G(b)(2) of the Code Code, (including by reason of Section 280G(b)(4)(Aiii) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments payments and benefits hereunder shall be taken into account whichreduced only to the extent necessary so that, in the opinion of Independent Advisorsthe tax counsel referred to in clause (ii), constitutes the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety are likely to constitute reasonable compensation for services actually rendered, rendered within the meaning of Section 280G(b)(4)(Bsection 280G(b)(4) of the Code, in excess of the Base Amount (Code or are otherwise not likely to be subject to disallowance as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensationdeductions; and (iiiiv) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors Company's independent auditors in accordance with the principles of Sections sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) A. Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 9 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash non-cash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) ), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (as defined below), (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code409A, but excluding any payments attributable to any the acceleration of vesting or payments with respect to any stock option or other equity award with respect to the Company’s Common Stock that are exempt from Section 409A of the Code; 409A, (C) reduction of any other payments or benefits otherwise payable to Employee Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code409A, but excluding any payments attributable to any the acceleration of vesting and payments with respect to any stock option or other equity award with respect to the Company’s Common Stock that are exempt from Section 409A of the Code; 409A, and (D) reduction of any payments attributable to any the acceleration of vesting or payments with respect to any stock option or other equity award with respect to the Company’s Common Stock that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time.409A. (b) B. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (aNotwithstanding anything contained herein to the contrary, in no event shall the total compensation paid out upon the departure of the Executive be in excess of that considered by the FDIC or the California Department of Business Oversight—Division of Financial Institutions to be safe and sound at the time of such payment, taking into consideration all applicable laws, regulations, or other regulatory guidance. Any payments made to the Executive, pursuant to this Agreement or otherwise, are subject to and conditioned upon compliance with all applicable banking regulations, including, but not limited to, 12 U.S.C. Section 1828(k) and any regulations promulgated thereunder. The Executive agrees that should any payments that are made or benefits that are provided pursuant to this Agreement be considered unsafe or unsound or otherwise prohibited by applicable law, regulation or regulatory order, the Executive agrees that he/she shall return or otherwise reimburse the Company for the amount of such prohibited payments or benefits to the maximum extent required by such law, regulation or regulatory order. Without limiting the foregoing, the Executive agrees to promptly comply with any applicable rule or regulation which requires the return or reimbursement to the Company of any payments, benefits or other compensation, including, but not limited to, return or reimbursement in connection with any incentive compensation previously paid prior to the issuance of a financial restatement as required under the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, the Xxxxxxxx-Xxxxx Act of 2002 and all regulations promulgated by any self-regulatory organization on which the Company’s common stock may then be listed. Notwithstanding any other provision provisions of this Agreement, in if the event Company’s principal tax advisor determines that any payment or benefit received or the total amounts payable pursuant to be received by this Agreement, together with other payments to which the Executive is entitled, would constitute an “excess parachute payment” (including any payment or benefit received as defined in connection with a termination Section 280G of the Executive’s employmentInternal Revenue Code), whether pursuant as amended, then the total payment under section 1.A above (and proportionally each monthly installment thereof) shall be reduced to the terms largest amount which may be paid without any portion of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, amount being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) 7.1 Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof5 and Section 6 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash non-cash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and OC\1608076.7 personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; , (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments payment attributable to any the acceleration of vesting or payments payment with respect to any stock option or other equity award with respect to the Company’s common stock that are exempt from Section 409A of the Code; , (C) reduction of any other payments or benefits otherwise payable to Employee Executive on a pro-pro rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments payment attributable to any the acceleration of vesting and payments payment with respect to any stock option or other equity award with respect to the Company's common stock that are exempt from Section 409A of the Code; , and (D) reduction of any payments attributable to any the acceleration of vesting or payments payment with respect to any stock option or other equity award with respect to the Company’s common stock that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) 7.2 For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of an accounting firm or compensation consulting firm with nationally recognized standing and substantial expertise and experience on Section 280G matters (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the termination of the Executive’s employmentemployment with the Company, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement Total Payments shall first be reduced, and reduced in the noncash severance payments hereunder shall thereafter be reducedorder specified below, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; , other than payments that are subject to Q/A 24(c) of Treas. Reg. Sec. 1.280G)-1, (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any other than payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A subject to Q/A 24(c) of the Code; Treas. Reg. Sec. 1.280G)-1, (C) reduction of any other payments or benefits otherwise payable to Employee the Executive, other than payments that are subject to Q/A 24(c) of Treas. Reg. Sec. 1.280G)1 and (D) reduction of any payments that are subject to Q/A 24(c) of Treas. Reg. Sec. 1.280G). The reduction of any payments that are subject to Section 409A of the Code shall be made on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) All determinations required to be made under this Section 2.8 shall be made by the Company’s regular outside independent public accounting firm (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Effective Date of Termination, if applicable, or such earlier time as is requested by the Company (c) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, Accounting Firm does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent AdvisorsAccounting Firm, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors Accounting Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other Any provision of this AgreementAgreement to the contrary notwithstanding, in the event that if any payment or benefit received or to be received by Executive would receive from the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether Company pursuant to the terms of this Agreement or any other plan, arrangement or agreement) otherwise (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total PaymentsPayment”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2280G of the Code and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (including by reason the “Excise Tax”), then such Payment will be equal to the Reduced Amount (as defined below). The “Reduced Amount” will be either (A) the largest portion of Section 280G(b)(4)(Athe Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (B) the entire Payment, whichever amount after taking into account all applicable federal, state, and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’ s receipt, on an after-tax basis, of the greater 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 Codepreceding sentence, the reduction shall occur in the manner (the “Reduction Method”) andthat results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the 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 calculating the Excise Tax, no any portion of such Total Payments the Payment being subject to taxes pursuant to Section 409A of the Code that would not otherwise be subject to taxes pursuant to Section 409A of the Code, then the Reduction Method and/or the Pro Rata Reduction Method, as the case may be, shall be taken into account whichmodified so as to avoid the imposition of taxes pursuant to Section 409A of the Code as follows: (1) as a first priority, in the opinion of Independent Advisorsmodification shall preserve to the greatest extent possible, constitutes reasonable compensation the greatest economic benefit for services actually renderedExecutive as determined on an after-tax basis; (2) as 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 (3) as a third priority, Payments that are “deferred compensation” within the meaning of Section 280G(b)(4)(B) 409A of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments Code shall be determined by reduced (or eliminated) before Payments that are not deferred compensation within the Independent Advisors in accordance with the principles meaning of Sections 280G(d)(3) and (4) Section 409A of the Code. (b) The accounting firm engaged by the Company for general tax purposes as of the day prior to the Change in Control will perform the calculations set forth in Section 8(a) above. If the firm so engaged by the Company is serving as the accountant or auditor for the acquiring company, the Company will appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such 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 within thirty (30) days before the consummation of a Change in Control (if requested at that time by the Company) or such other time as 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 with documentation reasonably acceptable to the Company that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder will be final, binding and conclusive upon the Company and Executive.

Limitation on Payments. (a) 7.1 Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof5 and Section 6 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash non-cash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; , (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments payment attributable to any the acceleration of vesting or payments payment with respect to any stock option or other equity award with respect to the Company’s common stock that are exempt from Section 409A of the Code; , (C) reduction of any other payments or benefits otherwise payable to Employee Executive on a pro-pro rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments payment attributable to any the acceleration of vesting and payments payment with respect to any stock option or other equity award with respect to the Company's common stock that are exempt from Section 409A of the Code; , and (D) reduction of any payments attributable to any the acceleration of vesting or payments payment with respect to any stock option or other equity award with respect to the Company’s common stock that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) 7.2 For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of an accounting firm or compensation consulting firm with nationally recognized standing and substantial expertise and experience on Section 280G matters (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreementanything to the contrary herein, in the event that the sum aggregate present value of (i) the Severance Payment payable under Section 6 hereof, (ii) any payment and all additional amount or benefit received benefits which may be paid or conferred to be received by the or on behalf of Executive in accordance with Section 7 hereof, and (including iii) any payment and all other amounts or benefit received in connection with benefits paid or conferred to or on behalf of Executive would constitute a termination of the Executive’s employment, whether pursuant to the terms of "parachute payment" ("parachute payment" as used this Agreement shall be defined in accordance with Section 280G(b)(2), or any other plansuccessor thereto, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”amended), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reducedreduced (by the minimum possible amounts) until no amount payable to Executive under this Agreement constitutes a parachute payment; provided, and the noncash severance payments hereunder shall thereafter be reducedhowever, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only such reduction under this Section 8 shall be made if (i) the net amount of such Total Payments, as so reduced after-tax payment (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions Federal, state, local or other income and personal exemptions attributable excise taxes) to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments which Executive would otherwise be entitled without such reduction (but after subtracting would be greater than the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after-tax payment (after taking into account Federal, state, local or other income and excise taxes) to Executive resulting from the phase out receipt of itemized deductions and personal exemptions attributable to such unreduced Total Paymentspayments with such reduction. If, as a result of subsequent events or conditions (including a subsequent payment or absence of a subsequent payment under this Agreement). The Total Payments , it is determined that payments hereunder have been reduced by more than the minimum amount required under this Section 8, then an additional payment shall be reduced promptly made to Executive in the following order: (A) reduction of any cash severance payments otherwise payable an amount equal to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable excess reduction. All determinations required to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last under this Section 8, including whether a payment would result in time. (b) For purposes of determining whether a parachute payment and the extent assumptions to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived utilized in arriving at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code determination, shall be taken into account; made and approved within fifteen (ii15) no portion of days after the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing Qualifying Termination by both (“Independent Advisors”1) accountants selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; Company and (iii2) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the CodeExecutive's designated financial advisor.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision of Anything in this AgreementAgreement to the contrary notwithstanding, in the event that if any payment or benefit received Executive would receive from the Company or to be received by the Executive otherwise (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total PaymentsPayment”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2280G of the Code; and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (including by reason of Section 280G(b)(4)(Athe “Excise Tax”), then such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Code) and, Payment that would result in calculating no portion of the Payment being subject to the Excise Tax; or (y) the largest portion, no portion up to and including the total, of such Total Payments the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment. Any reduction made pursuant to this Section 5(a) shall be taken into account whichmade in accordance with the following order of priority: (i) stock options whose exercise price exceeds the fair market value of the optioned stock (“Underwater Options”), (ii) Full Credit Payments (as defined below), that are payable in cash, (iii) non-cash Full Credit Payments that are taxable, (iv) non-cash Full Credit Payments that are not taxable, (v) Partial Credit Payments (as defined below) and (vi) non-cash employee welfare benefits. In each case, reductions shall be made in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the excise tax will be the first payment or benefit to be reduced (with reductions made pro-rata in the opinion event payments or benefits are owed at the same time). “Full Credit Payment” means a payment, distribution or benefit, whether paid or payable or distributed or distributable pursuant to the terms of Independent Advisorsthis Agreement or otherwise, constitutes reasonable compensation for services actually rendered, within that if reduced in value by one dollar reduces the meaning of Section 280G(b)(4)(B) amount of the Code, in excess of the Base Amount parachute payment (as defined in Section 280G(b)(3) 280G of the Code) allocable to by one dollar, determined as if such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment payment, distribution or benefit included in had been paid or distributed on the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) date of the Codeevent triggering the excise tax. “Partial Credit Payment” means any payment, distribution or benefit that is not a Full Credit Payment. In no event shall the Executive have any discretion with respect to the ordering of payment reductions.

Limitation on Payments. (a) Notwithstanding any other provision of Anything in this AgreementAgreement to the contrary notwithstanding, in the event it shall be determined that any payment "payments in the nature of compensation" (as that term is used in Section 280G of the Code and any regulations promulgated thereunder) by the Company or any of its affiliated companies to or for the benefit received or to be received by of the Executive (including any payment whether paid or benefit received in connection with a termination of the Executive’s employment, whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreementotherwise) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total "Payments”") would be subject (in whole or part), to the excise tax imposed under by Section 4999 of the Internal Revenue Code of 1986or any interest or penalties would be incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as amended (the “Code”) (the “"Excise Tax”"), then, after taking into account any reduction then the Payments shall be either (i) payable in full or (ii) reduced to one dollar less than the Total Payments provided by reason of amount that would constitute a "parachute payment" under Section 280G of the Code in such other plan(the "Reduced Amount"), arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion whichever of the Total Payments is subject to foregoing amounts, taking into account the Excise Tax but only if (i) the net amount of such Total Paymentsapplicable taxes, as so reduced (and after subtracting the net amount of including, without limitation, federal, state and local income and employment taxes and the Excise Tax, results in the receipt by the Executive, on such reduced Total Payments and after taking into account an after-tax basis, of the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net greatest amount of such Total Payments. If the Payments without such reduction (but after subtracting the net amount are not reduced pursuant to this Section 4.1, Executive shall be responsible for payment of federal, state and local income taxes on such Total Payments and the amount of any Excise Tax to which resulting from the Executive would be subject in respect of such unreduced Total Payments. If the Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments are reduced, they shall be reduced in the following orderorder of priority: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Payments under Section 409A of the Code; 3.1(b), (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Payments under Section 409A of the Code3.1(e), but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Payments under Section 409A of the Code3.1(d)(ii), but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction other Payments to be provided on or after the Executive's termination of any payments attributable employment and (E) other Payments to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject provided prior to the Excise TaxExecutive's termination of employment; provided, however, that only Payments (ior portions of Payments) no portion that, if reduced, would reduce the total amount of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and "parachute payments" (as that term is used in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) 280G of the Code) andshall be reduced. If there is a question as to which Payments within each of categories (D) and (E) of the prior sentence are to be reduced first, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, reduced in reverse order beginning with Payments that are to be paid the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within farthest in time from the meaning of Section 280G(b)(4)(B) of date on which the Code, "change in excess of the Base Amount ownership or effective control" (as defined that term is used in Section 280G(b)(3) 280G of the Code) allocable to such reasonable compensation; and or "change in ownership of a substantial portion of the assets" (iii) the value of any non cash benefit or any deferred payment or benefit included as that term is used in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) Section 280G of the Code), as the case may be, shall have occurred.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employmentEmployee, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) agreement (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) ), would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement Total Payments shall first be reduced, and the noncash severance payments hereunder shall thereafter be reducedreduced as set forth herein, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (ia) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of all federal, state and local income and employment taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to the Employee (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing) on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (iib) the net amount of such Total Payments without such reduction (but after subtracting the net amount of all federal, state and local income and employment taxes payable with respect to the foregoing calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to the Employee (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing) on such Total Payments and the amount of Excise Tax to which the Executive Employee would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (Ai) reduction of any cash severance payments otherwise payable to the Executive Employee that are exempt from Section 409A of the Code; 409A, (Bii) reduction of any other cash payments or benefits otherwise payable to the Executive Employee that are exempt from Section 409A of the Code409A, but excluding any payments payment attributable to any the acceleration of vesting or payments payment with respect to any equity award that are is exempt from Section 409A of the Code; 409A, (Ciii) reduction of any other payments or benefits otherwise payable to the Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code409A, but excluding any payments payment attributable to any the acceleration of vesting and payments payment with respect to any equity award that are is exempt from Section 409A of the Code; 409A, and (Div) reduction of any payments attributable to any the acceleration of vesting or payments payment with respect to any equity award that are is exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) 409A. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (iA) no portion of the Total Payments the receipt or enjoyment of which the Executive Employee shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (iiB) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors counsel, consultants or advisors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iiiC) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in the event that If any payment or benefit received or to be received by the Executive (including any payment or benefit received payments and benefits pursuant to this Agreement) that Executive would receive in connection with a termination of Change in Control from the Executive’s employment, whether pursuant to the terms of this Agreement Company or any other plan, arrangement or agreement) otherwise (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total PaymentsTransaction Payment”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (including by reason of Section 280G(b)(4)(A) the “Excise Tax”), then the Company shall cause to be determined, before any amounts of the Code) andTransaction Payment are paid to Executive, which of the following two alternative forms of payment would result in calculating Executive’s receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that all or some portion of the Transaction Payment may be subject to the Excise Tax: (1) payment in full of the entire amount of the Transaction Payment (a “Full Payment”), no portion or (2) payment of such Total Payments only a part of the Transaction Payment so that Executive receives the largest payment possible without the imposition of the Excise Tax (a “Reduced Payment”). For purposes of determining whether to make a Full Payment or a Reduced Payment, the Company shall cause to be taken into account whichall applicable federal, state and local income and employment taxes and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes). If a Reduced Payment is made, (x) Executive shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in payments and/or benefits will occur in the opinion following order: (1) reduction of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning cash payments; (2) cancellation of Section 280G(b)(4)(Baccelerated vesting of equity awards other than stock options; (3) cancellation of the Code, in excess accelerated vesting of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensationstock options; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) reduction of other benefits paid to Executive. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting will be cancelled in the reverse order of the Codedate of grant of Executive’s equity awards. In no event will the Company or any stockholder be liable to Executive for any amounts not paid as a result of the operation of this Section 4. (a) The professional firm engaged by the Company for general tax purposes as of the day prior to the effective date of the Change in Control shall make all determinations required to be made under this Section 4. If the professional firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such professional firm required to be made hereunder. (b) The professional firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within 15 calendar days after the date on which Executive’s right to a Transaction Payment is triggered or such other time as reasonably requested by the Company or Executive. If the professional firm determines that no Excise Tax is payable with respect to the Transaction Payment, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive with detailed supporting calculations of its determinations that no Excise Tax will be imposed with respect to such Transaction Payment. Any good faith determinations of the professional firm made hereunder shall be final, binding and conclusive upon the Company and Executive.

Limitation on Payments. (a) 7.1 Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof5 and Section 6 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash non-cash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is OC\1608076.7 subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; , (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments payment attributable to any the acceleration of vesting or payments payment with respect to any stock option or other equity award with respect to the Company’s common stock that are exempt from Section 409A of the Code; , (C) reduction of any other payments or benefits otherwise payable to Employee Executive on a pro-pro rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments payment attributable to any the acceleration of vesting and payments payment with respect to any stock option or other equity award with respect to the Company's common stock that are exempt from Section 409A of the Code; , and (D) reduction of any payments attributable to any the acceleration of vesting or payments payment with respect to any stock option or other equity award with respect to the Company’s common stock that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) 7.2 For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of an accounting firm or compensation consulting firm with nationally recognized standing and substantial expertise and experience on Section 280G matters (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any provision in this Agreement to the contrary, if the total amount of payments and benefits to be paid or provided to Executive under this Agreement which are considered to be "parachute payments" within the meaning of Section 280G of the Code, when added to any other provision such "parachute payments" received by Executive from HEC or from a member of HEC's affiliated group (as provided in Section 280G(d)(5) of the Code) or from HEC's successor or a member of such successor's affiliated group, whether or not under this Agreement, are in excess of the event that amount Executive can receive without causing HEC to lose its deduction with respect to all or any payment or benefit received or portion of such total amount on account of Section 280G of the Code, the amount of payments and benefits to be received by the paid or provided to Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant under this Agreement which are parachute payments shall be reduced to the terms of this Agreement or highest amount which will not cause HEC to lose its deduction with respect to any other plan, arrangement or agreement) (all such payments and benefits, including benefits on account of Section 280G of the payments and benefits Code. (b) All determinations required to be made under this Section 4 hereof, being hereinafter referred to as shall be made by Deloitte & Touche (the “Total Payments”) would be subject (in whole or part"Accounting Firm"), which shall provide detailed supporting calculations both to the excise tax imposed under Section 4999 HEC and Executive within 10 business days of the Internal Revenue Code date of 1986a Change of Control or such earlier time as is requested by HEC. Any such determination by the Accounting Firm shall be binding upon HEC and Executive. Within five business days after the determination by the Accounting Firm (or, as amended (if later, the “Code”) (the “Excise Tax”date specified in Section 7), then, after taking into account any reduction HEC shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. All fees and expenses of the Accounting Firm shall be borne solely by HEC. (c) As a result of the uncertainty in the Total Payments provided by reason application of Section 280G of the Code in such other plan, arrangement or agreement, at the cash severance payments time of the initial determination by the Accounting Firm under this Agreement shall first be reducedSection 4, and the noncash severance it is possible that payments will have been made by HEC hereunder which should not have been made ("Overpayment") or that additional payments hereunder shall thereafter which will not have been made by HEC should have been made ("Underpayment"), in each case, consistent with the calculations required to be reducedmade hereunder. In the event that the Accounting Firm determines that an Overpayment has been made, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of any such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments Overpayment shall be reduced treated for all purposes as a loan to Executive which he shall repay to HEC together with interest at the applicable federal rate provided for in the following order: (ASection 7872(f)(2) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; provided, however, that no amount shall be payable by Executive to HEC (Bor if paid by Executive to HEC shall be returned to Executive) reduction of any other cash payments or benefits otherwise payable if and to the Executive that are exempt from extent such payment would not reduce the amount which is subject to taxation under Section 409A 4999 of the Code. In the event that the Accounting Firm determines that an Underpayment has occurred, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code Underpayment shall be taken into account; (ii) no portion promptly paid by HEC to or for the benefit of Executive together with interest at the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation applicable federal rate provided for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (47872(f)(2) of the Code.

Limitation on Payments. (a) A. Notwithstanding anything contained herein to the contrary, prior to the payment of any other provision of this Agreementamounts pursuant to Section IV.F.3. hereof, in the event that any payment or benefit received or to be received an independent national accounting firm designated by the Executive Company (including the "Accounting Firm") shall compute whether there would be any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant "excess parachute payments" payable to the terms Employee, within the meaning of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 280G of the Internal Revenue Code of 1986, as amended (the “"Code”) (the “Excise Tax”"), then, after taking into account any reduction in the Total Payments provided by reason total "parachute payments," within the meaning of Section 280G of the Code in such Code, payable to the Employee by the Company or any successor thereto under this Agreement and any other plan, arrangement agreement or agreementotherwise. If there would be any excess parachute payments, the cash severance payments under this Agreement shall first be reduced, and Accounting Firm will compute the noncash severance payments hereunder shall thereafter be reduced, net after-tax proceeds to the extent necessary so that no portion Employee, taking into account the excise tax imposed by Section 4999 of the Total Payments is subject to the Excise Tax but only Code, if (i) the net amount payments hereunder were reduced, but not below zero, such that the total parachute payments payable to the Employee would not exceed three (3) times the "base amount" as defined in Section 280G of such Total Paymentsthe Code, as so reduced less One Dollar (and after subtracting the net amount of federal$1.00), state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net payments hereunder were not reduced. If reducing the payments hereunder would result in a greater after-tax amount of to the Employee, such Total Payments without lesser amount shall be paid to the Employee. If not reducing the payments hereunder would result in a greater after-tax amount to the Employee, such reduction (but after subtracting payments shall not be reduced. The determination by the net amount of federal, state and local income taxes on such Total Payments Accounting Firm shall be binding upon the Company and the amount Employee subject to the application of Excise Tax to which Section XX.B. hereof. B. As a result of the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced uncertainty in the following order: (A) reduction application of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A Sections 280G of the Code, but excluding any it is possible that excess parachute payments attributable will be paid when such payment would result in a lesser after-tax amount to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the CodeEmployee; (C) reduction this is not the intent hereof. In such cases, the payment of any other excess parachute payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject void ab initio as regards any such excess. Any excess will be treated as a loan by the Company to the Excise Tax, (i) no portion of Employee. The Employee will return the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not excess to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does within fifteen (15) business days of any determination by the Accounting Firm that excess parachute payments have been paid when not constitute a “parachute payment” within so intended, with interest at an annual rate equal to the meaning of rate provided in Section 280G(b)(21274(d) of the Code (including by reason or 120% of such rate if the Accounting Firm determines that such rate is necessary to avoid an excise tax under Section 280G(b)(4)(A) 4999 of the Code) andfrom the date the Employee received the excess until it is repaid to the Company. C. All fees, in calculating costs and expenses (including, but not limited to, the Excise Tax, no portion cost of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(Bretaining experts) of the CodeAccounting Firm shall be borne by the Company and the Company shall pay such fees, costs and expenses as they become due. In performing the computations required hereunder, the Accounting Firm shall assume that taxes will be paid for state and federal purposes at the highest possible marginal tax rates which could be applicable to the Employee in excess the year of receipt of the Base Amount (as defined in Section 280G(b)(3) of payments, unless the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the CodeEmployee agrees otherwise.

Limitation on Payments. (a) Notwithstanding any other provision of Anything in this AgreementAgreement to the contrary notwithstanding, in the event that if any payment or benefit received Executive would receive from the Company or to be received by the Executive otherwise (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total PaymentsPayment”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2280G of the Code; and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (including by reason of Section 280G(b)(4)(Athe “Excise Tax”), then such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Code) and, Payment that would result in calculating no portion of the Payment being subject to the Excise Tax; or (y) the largest portion, no portion up to and including the total, of such Total Payments the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment. Any reduction made pursuant to this Section 5(a) shall be taken into account whichmade in accordance with the following order of priority: (i) stock options whose exercise price exceeds the fair market value of the optioned stock (“Underwater Options”) (ii) Full Credit Payments (as defined below) that are payable in cash, (iii) non-cash Full Credit Payments that are taxable, (iv) non-cash Full Credit Payments that are not taxable (v) Partial Credit Payments (as defined below) and (vi) non-cash employee welfare benefits. In each case, reductions shall be made in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the excise tax will be the first payment or benefit to be reduced (with reductions made pro-rata in the opinion event payments or benefits are owed at the same time). “Full Credit Payment” means a payment, distribution or benefit, whether paid or payable or distributed or distributable pursuant to the terms of Independent Advisorsthis Agreement or otherwise, constitutes reasonable compensation for services actually rendered, within that if reduced in value by one dollar reduces the meaning of Section 280G(b)(4)(B) amount of the Code, in excess of the Base Amount parachute payment (as defined in Section 280G(b)(3) 280G of the Code) allocable to by one dollar, determined as if such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment payment, distribution or benefit included in had been paid or distributed on the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) date of the Codeevent triggering the excise tax. “Partial Credit Payment” means any payment, distribution or benefit that is not a Full Credit Payment. In no event shall the Executive have any discretion with respect to the ordering of payment reductions.

Limitation on Payments. (a) Notwithstanding anything contained herein to the contrary, prior to the payment of any other provision of this Agreementamounts pursuant to Sections 1 or 2 hereof, in a national accounting firm designated by XXXX (the event that “Accounting Firm”) shall compute whether there would be any payment or benefit received or “excess parachute payments” payable to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to within the terms meaning of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 280G of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason total “parachute payments,” within the meaning of Section 280G of the Code in such Code, payable to the Executive by XXXX or any successor thereto under this Agreement and any other plan, arrangement agreement or agreementotherwise. If there would be any excess parachute payments, the cash severance payments under this Agreement shall first be reduced, and Accounting Firm will compute the noncash severance payments hereunder shall thereafter be reduced, net after-tax proceeds to the extent necessary so that no portion Executive, taking into account the excise tax imposed by Section 4999 of the Total Payments is subject to the Excise Tax but only Code, if (i) the net amount payments hereunder were reduced, but not below zero, such that the total parachute payments payable to the Executive would not exceed three (3) times the “base amount” as defined in Section 280G of such Total Paymentsthe Code, as so reduced less One Dollar (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments$1.00) is greater than or equal to (ii) the net payments hereunder were not reduced. If reducing the payments hereunder would result in a greater after-tax amount of to the Executive, such Total Payments without lesser amount shall be paid to the Executive. If not reducing the payments hereunder would result in a greater after-tax amount to the Executive, such reduction (but after subtracting payments shall not be reduced. The determination by the net amount of federal, state and local income taxes on such Total Payments Accounting Firm shall be binding upon XXXX and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in timeExecutive. (b) For purposes As a result of determining whether and the extent to which uncertainty in the Total Payments application of Section 280G of the Code, it is possible that excess parachute payments will be subject paid when such payment would result in a lesser after-tax amount to the Excise TaxExecutive; this is not the intent hereof. In such cases, the payment of any excess parachute payments will be void ab initio as regards any such excess. Any excess will be treated as a loan by XXXX to the Executive. The Executive will return the excess to XXXX, within fifteen (i15) no portion business days of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected any determination by the CompanyAccounting Firm that excess parachute payments have been paid when not so intended, does not constitute a “parachute payment” within with interest at an annual rate equal to the meaning of rate provided in Section 280G(b)(21274(d) of the Code (including by reason or 120% of such rate if the Accounting Firm determines that such rate is necessary to avoid an excise tax under Section 280G(b)(4)(A) 4999 of the Code) andfrom the date the Executive received the excess until it is repaid to XXXX. (c) All fees, in calculating costs and expenses (including, but not limited to, the Excise Tax, no portion cost of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(Bretaining experts) of the CodeAccounting Firm shall be borne by XXXX and XXXX shall pay such fees, costs and expenses as they become due. In performing the computations required hereunder, the Accounting Firm shall assume that taxes will be paid for state and federal purposes at the highest possible marginal tax rates which could be applicable to the Executive in excess the year of receipt of the Base Amount (as defined in Section 280G(b)(3) of payments, unless the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the CodeExecutive agrees otherwise.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in In the event that any payment the post-termination payments and other benefits provided for in the Agreement or benefit received or otherwise payable to be received by the Executive (including any payment or benefit received in connection with a termination of i) constitute “parachute payments” within the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason meaning of Section 280G of the Code in such other planand (ii) but for this Paragraph 19, arrangement or agreement, the cash severance payments under this Agreement shall first would be reduced, and the noncash severance payments hereunder shall thereafter be reduced, subject to the excise tax imposed by Section 4999 of the Code, then Executive’s post-termination payments benefits will be either: (a) delivered in full, or delivered as to such lesser extent necessary so that which would result in no portion of the Total Payments is such post-termination payments or other post-termination benefits being subject to the Excise Tax but only if (i) excise tax under Section 4999 of the net amount Code, whichever of such Total Paymentsthe foregoing amounts, as so reduced (and after subtracting taking into account the net amount of applicable federal, state and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by Executive on such reduced Total Payments and after taking into account an after-tax basis, of the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net greatest amount of such Total Payments without such reduction (but after subtracting the net amount of federalpost-termination payments or benefits, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect notwithstanding that all or some portion of such unreduced Total Payments post-termination payments or benefits may be taxable under Section 4999 of the Code. If a reduction in the severance and after taking into account other benefits constituting “parachute payments” is necessary so that no portion of such post-termination payments or benefits is subject to the phase out excise tax under Section 4999 of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments the Code, the reduction shall be reduced occur in the following order: (Ai) reduction of any cash severance the post-termination payments otherwise payable to the Executive that are exempt from Section 409A of the Codeunder Paragraph 7; (Bii) reduction of any other cash payments or benefits otherwise payable to payments, if any; (iii) cancellation of accelerated vesting of equity awards; and (iv) reduction of continued employee benefits. In the Executive event that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any of equity award that are exempt from Section 409A compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the Code; (C) reduction date of any other payments grant of Executive’s equity awards. If two or benefits otherwise payable to Employee more equity awards are granted on the same date, each award will be reduced on a pro-rata basis or such other manner that complies with Section 409A of basis. In no event shall the Code, but excluding Executive have any payments attributable to any acceleration of vesting and payments discretion with respect to any equity award that are exempt from Section 409A the ordering of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in timepayment reductions. (b) Unless the Company and Executive otherwise agree in writing, any determination required under this Paragraph 19 will be made in writing by an independent firm immediately prior to Change of Control (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of determining whether and making the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected calculations required by the CompanyParagraph 19, does not constitute a “parachute payment” within the meaning Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) Sections 280G and 4999 of the Code) and, . The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in calculating order to make a determination. The Company will bear all costs the Excise Tax, no portion of such Total Payments shall be taken into account which, Firm may reasonably incur in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of connection with any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined calculations contemplated by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Codethis Paragraph 19.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in the event that If any payment or benefit received Executive will or to be received by may receive from the Executive Company or otherwise (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments280G Payment”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2280G 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 pursuant to this Agreement (a “Payment”) shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment (after reduction) being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount (i.e., the amount determined by reason 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 Executive’s receipt, on an after-tax basis, of Section 280G(b)(4)(Athe 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 Codepreceding sentence, the reduction shall occur in the manner (the “Reduction Method”) andthat results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata (the “Pro Rata Reduction Method”). (b) Notwithstanding any provision of paragraph (a) to the contrary, if the Reduction Method or the Pro Rata Reduction Method would result in calculating the Excise Tax, no any portion of such Total Payments the Payment being subject to taxes pursuant to Section 409A of the Code that would not otherwise be subject to taxes pursuant to Section 409A of the Code, then the Reduction Method and/or the Pro Rata Reduction Method, as the case may be, shall be taken into account whichmodified so as to avoid the imposition of taxes pursuant to Section 409A of the Code as follows: (A) as a first priority, in the opinion of Independent Advisorsmodification shall preserve to the greatest extent possible, constitutes reasonable compensation the greatest economic benefit for services actually renderedExecutive as determined on an after-tax basis; (B) as 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 (C) as a third priority, Payments that are “deferred compensation” within the meaning of Section 280G(b)(4)(B) 409A of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments Code shall be determined by reduced (or eliminated) before Payments that are not deferred compensation within the Independent Advisors in accordance with the principles meaning of Sections 280G(d)(3) and (4) Section 409A of the Code. (c) Unless Executive and the Company agree on an alternative accounting firm or law firm, the accounting firm engaged by the Company for general tax compliance purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting or law firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting or law firm required to be made hereunder. The Company shall use commercially reasonable efforts to cause the accounting or law firm engaged to make the determinations hereunder to provide its calculations, together with detailed supporting documentation, to Executive and the Company within fifteen (15) calendar days after the date on which Executive’s right to a 280G Payment becomes reasonably likely to occur (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company. (d) If Executive receives a Payment for which the Reduced Amount was determined pursuant to clause (x) of Section 3.6(a) and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, Executive shall promptly return to the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of Section 3.6(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) Section 3.6(a), Executive shall have no obligation to return any portion of the Payment pursuant to the preceding sentence.

Limitation on Payments. (a) Notwithstanding any other provision of anything in this AgreementAgreement to the contrary, in the event that if any payment or benefit received or to be received by the distribution Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether would receive pursuant to the terms of this Agreement or any other plan, arrangement or agreement) otherwise (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total PaymentsPayment”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (including by reason of Section 280G(b)(4)(A) the “Excise Tax”), then the Company shall cause to be determined, before any amounts of the CodePayment are paid to Executive, which of the following alternative forms of payment would maximize Executive’s after-tax proceeds: (A) andpayment in full of the entire amount of the Payment (a “Full Payment”), or (B) payment of only a part of the Payment so that Executive receives that largest Payment possible without being subject to the Excise Tax (a “Reduced Payment”), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax (all computed at the highest marginal rate, net of the maximum reduction in calculating federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment, notwithstanding that all or some portion the Payment may be subject to the Excise Tax. (b) If a Reduced Payment is made pursuant to this Section 5, no portion of such Total Payments (i) the Payment shall be taken into account whichpaid only to the extent permitted under the Reduced Payment alternative, and Executive shall have no rights to any additional payments and/or benefits constituting the Payment, and (ii) reduction in payments and/or benefits will occur in the opinion following order: (1) reduction of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning cash payments; (2) cancellation of Section 280G(b)(4)(Baccelerated vesting of equity awards other than stock options; (3) cancellation of the Code, in excess accelerated vesting of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensationstock options; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) reduction of other benefits payable to Executive. In the event that acceleration of compensation from Executive’s equity awards is to be reduced, such acceleration of vesting shall be canceled in the reverse order of the Codedate of grant. (c) The independent registered public accounting firm engaged by the Company as of the day prior to the effective date of the Change in Control shall make all determinations required to be made under this Section 5. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, group or entity effecting the Change in Control, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm required to be made hereunder. (d) The independent registered public accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within thirty (30) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company. If the independent registered public 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 shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in the event that any payment or benefit received or payments to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant made to the terms of this Agreement Employee under Sections 3.2, 3.3 or any 3.4, together with other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits which Employee has a right to receive from the Company, result in there being a “parachute payment” under Section 4 hereof280G of the Internal Revenue Code, being hereinafter referred to as (the “Total PaymentsCode”) would be subject (in whole or part), then such payments shall be reduced by the minimum amount necessary to avoid the imposition of the excise tax imposed (“Excise Tax”) under Section 4999 of the Internal Revenue Code of 1986Code, provided, however, that no such reduction in such payments shall be made if by not making such reduction, Employee’s Retained Amount (as amended hereinafter defined) would be greater than Employee’s Retained Amount if such payments are so reduced. All determinations required to be made under this Section 3.5 shall be made by tax counsel selected by the Company and reasonably acceptable to Employee (the “Code”) (the “Excise TaxTax Counsel”), then, after taking into account which determinations shall be conclusive and binding on Employee and the Company absent manifest error. All fees and expenses of Tax Counsel shall be borne solely by the Company. Prior to any reduction in the Total Payments provided by reason of such payments to Employee pursuant to this Section 280G of the Code in such other plan3.5, arrangement or agreement, the cash severance payments under this Agreement Tax Counsel shall first be reduced, provide Employee and the noncash severance payments hereunder shall thereafter be reduced, to Company with a report setting forth its calculations and containing related supporting information. In the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without event any such reduction (but after subtracting the net amount of federalis required, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments payments shall be reduced in the following order: (Ai) reduction the COBRA Payments, (ii) the Severance Payment, (iii) any other portion of any cash severance such payments otherwise payable to the Executive that are exempt from not subject to Section 409A of the Code; Code (Bother than payments resulting from any accelerated vesting of a Unit Appreciation Rights or under the Equity Incentive Plan, awarded to Employee under this Agreement), (iv) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from subject to Section 409A of the CodeCode in reverse order of payment, but excluding and (v) any portion of such payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from not subject to Section 409A and arise from any accelerated vesting of the Code; (C) reduction of any other payments Unit Appreciation Rights or benefits otherwise payable under Equity Incentive Plan, awarded to Employee on a pro-rata basis or such other manner that complies under this Agreement. “Retained Amount” shall mean the present value (as determined in accordance with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting Sections 280G(b)(2)(A)(ii) and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A280G(d)(4) of the Code) and, in calculating the Excise Tax, no portion of such Total payments net of all federal, state and local taxes imposed on Employee with respect thereto. In addition, Payments shall to be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable made to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall Employee hereunder may be determined subject to modification if required by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.Company’s regulatory authorities. CFB Employment Agreement

Limitation on Payments. (a) 7.1 Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof5 and Section 6 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash non-cash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; , (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments payment attributable to any the acceleration of vesting or payments payment with respect to any stock option or other equity award with respect to the Company’s common stock that are exempt from Section 409A of the Code; , (C) reduction of any other payments or benefits otherwise payable to Employee Executive on a pro-pro rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments payment attributable to any the acceleration of vesting and payments payment with respect to any stock option or other equity award with respect to the Company’s common stock that are exempt from Section 409A of the Code; , and (D) reduction of any payments attributable to any the acceleration of vesting or payments payment with respect to any stock option or other equity award with respect to the Company’s common stock that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) 7.2 For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of an accounting firm or compensation consulting firm with nationally recognized standing and substantial expertise and experience on Section 280G matters (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereofparagraph 5 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments payment, excluding any cash payment with respect to the acceleration of equity awards, that is otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are is exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (CB) reduction of any other payments or benefits otherwise payable to Employee the Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding Code and (C) reduction of any payments attributable to any acceleration of vesting and payments payment with respect to any the acceleration of equity award awards that are is otherwise payable to the Executive that is exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the termination of the Executive’s employmentemployment or service, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereofSections 3 or 6 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments payment, excluding any cash payment with respect to the acceleration of equity awards, that is otherwise payable to the Executive that are is exempt from Section 409A of the Code; 409A, (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (DC) reduction of any payments attributable to any acceleration of vesting or payments payment with respect to any the acceleration of equity award awards that are is otherwise payable to Executive that is exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time.409A. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. Notwithstanding any provisions contained in this Agreement to the contrary, no Committed Purchaser shall, nor shall it be obligated to, pay any amount pursuant to this Agreement unless (a) Notwithstanding any other provision such Committed Purchaser has received funds which may be used to make such payment and which funds are not required to repay its Commercial Paper notes and advances under its Funding Agreements when due and (b) after giving effect to such payment, either (i) there is sufficient liquidity availability (determined in accordance with the Commercial Paper program documents and agreements of this Agreementsuch Committed Purchaser), in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination under all of the Executiveliquidity facilities for such Committed Purchaser’s employmentcommercial paper program, whether to pay the “Face Amount” (as defined below) of all its outstanding Commercial Paper notes and advances under its Funding Agreements when due or (ii) all of its Commercial Paper notes and advances under its Funding Agreements are paid in full. Any amount which any Committed Purchaser does not pay pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 operation of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement preceding sentence shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount claim (as defined in Section 280G(b)(3) §101 of the Bankruptcy Code) allocable to such reasonable compensation; and (iii) the value against or an obligation of any non cash benefit or Committed Purchaser for any deferred such insufficiency unless and until such payment or benefit included in the Total Payments shall may be determined by the Independent Advisors made in accordance with the principles of Sections 280G(d)(3clauses (a) and (4b) above. The agreements in this Section 14.18 shall survive termination of this Agreement and payment of all obligations hereunder. As used in this Section 14.18, the Codeterm “Face Amount” means, with respect to outstanding Commercial Paper notes or advances under Funding Agreements, (x) the face amount of any such Commercial Paper notes issued on a discount basis, and (y) the principal amount of, plus the amount of all interest accrued and to accrue thereon to the stated maturity date of, any such Commercial Paper notes issued on an interest-bearing basis or any such advances under a Funding Agreement.

Limitation on Payments. (a) Notwithstanding any other provision of anything in this AgreementAgreement to the contrary, in the event that if any payment or benefit received or to be received by the distribution Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether would receive pursuant to the terms of this Agreement or any other plan, arrangement or agreement) otherwise (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total PaymentsPayment”) would be subject (in whole or part), to i) constitute a “parachute payment” within the excise tax imposed under meaning of Section 4999 280G of the Internal Revenue Code of 1986, as amended (the “Code”); and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), thenthen the Company shall cause to be determined, after before any amounts of the Payment are paid to Executive, which of the following alternative forms of payment would maximize Executive’s after-tax proceeds: (A) payment in full of the entire amount of the Payment (a “Full Payment”), or (B) payment of only a part of the Payment so that Executive receives that largest Payment possible without being subject to the Excise Tax (a “Reduced Payment”), whichever of the foregoing amounts, taking into account any the applicable federal, state and local income taxes and the Excise Tax (all computed at the highest marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the Total Payments greater amount of the Payment, notwithstanding that all or some portion the Payment may be subject to the Excise Tax. Notwithstanding the above, provided by reason that no securities of the Company are then-publicly traded and subject to Executive waiving Executive’s right to the Payment that would otherwise trigger the Excise Tax, the Company will use its good faith efforts to conduct a vote of the Company’s stockholders in accordance with the applicable provisions of Section 280G of the Code in with such other plan, arrangement or agreement, vote giving the cash severance payments under this Agreement shall first be reduced, and stockholders the noncash severance payments hereunder shall thereafter be reduced, opportunity to approve the extent necessary so amount of such Payment that no portion of the Total Payments is subject to would otherwise trigger the Excise Tax but only in an effort to exempt such Payment from the Excise Tax if possible. (b) If a Reduced Payment is made pursuant to this Section 5, (i) the net amount of such Total PaymentsPayment shall be paid only to the extent permitted under the Reduced Payment alternative, as so reduced (and after subtracting Executive shall have no rights to any additional payments and/or benefits constituting the net amount of federal, state Payment; and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced payments and/or benefits will occur in the following order: (A1) reduction of any cash severance payments otherwise payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits payable to Executive. In the Executive event that are exempt acceleration of compensation from Executive’s equity awards is to be reduced, such acceleration of vesting shall be canceled in the reverse order of the date of grant. (c) All determinations required to be made under this Section 409A 5 shall be made by such adviser as may be selected by the Company, provided, that the adviser’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code; . The adviser shall provide its determination, together with detailed supporting calculations and documentation, to Executive and the Company within fifteen (B15) reduction business days following the date of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A termination of the CodeExecutive’s employment, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis if applicable, or such other manner time as requested by Executive (provided, that complies with Section 409A Executive reasonably believes that any of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will may be subject to the Excise Tax, (i) no portion or the Company. All reasonable fees and expenses of the Total Payments the receipt or enjoyment of which the Executive shall have waived at adviser in reaching such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code determination shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected borne solely by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision Within fifteen (15) business days of this Agreementthe Termination Date, in the event that any payment or benefit received or to be received an independent national accounting firm designated by the Executive Company (including the "Accounting Firm") shall compute whether there would be any payment or benefit received in connection with a termination of "excess parachute payments" payable to the Executive’s employment, whether pursuant to within the terms meaning of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 280G of the Internal Revenue Code of 1986, as amended (the “"Code”) (the “Excise Tax”"), then, after taking into account any reduction in the Total Payments provided by reason total "parachute payments," within the meaning of Section 280G of the Code in such Code, payable to the Executive by the Company or any successor thereto under this Agreement and any other plan, arrangement agreement or agreementotherwise. If there would be any excess parachute payments, the cash severance payments under this Agreement shall first be reduced, and Accounting Firm will compute the noncash severance payments hereunder shall thereafter be reduced, net after-tax proceeds to the extent necessary so that no portion Executive, taking into account the excise tax imposed by Section 4999 of the Total Payments is subject to the Excise Tax but only Code, if (i) the net amount payments hereunder were reduced, but not below zero, such that the total parachute payments payable to the Executive would not exceed 299% of such Total Paymentsthe "base amount" as defined in Section 280G of the Code, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net payments hereunder were not reduced. If reducing the payments hereunder would result in a greater after-tax amount of to the Executive, such Total Payments without lesser amount shall be paid to the Executive. If not reducing the payments hereunder would result in a greater after-tax amount to the Executive, such reduction (but after subtracting payments shall not be reduced. The determination by the net amount of federal, state and local income taxes on such Total Payments Accounting Firm shall be binding upon the Company and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from application of Section 409A of the Code; (B22(b) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in timehereof. (b) For purposes As a result of determining whether and the extent to which uncertainty in the Total Payments application of Sections 280G of the Code, it is possible that excess parachute payments will be subject paid when such payment would result in a lesser after-tax amount to the Excise TaxExecutive; this is not the intent hereof. In such cases, (i) no portion the payment of any excess parachute payments will be void ab initio as regards any such excess. Any excess will be treated as a loan by the Total Payments Company to the receipt or enjoyment of which Executive. The Executive will return the Executive shall have waived at such time and in such manner as not excess to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does within fifteen (15) business days of any determination by the Accounting Firm that excess parachute payments have been paid when not constitute a “parachute payment” within so intended, with interest at an annual rate equal to the meaning of rate provided in Section 280G(b)(21274(b)(2)(B) of the Code (including by reason or 120% of such rate if the Accounting Firm determines that such rate is necessary to avoid an excise tax under Section 280G(b)(4)(A) 4999 of the Code) andfrom the date the Executive received the excess until it is repaid to the Company. (c) All fees, in calculating costs and expenses (including, but not limited to, the Excise Tax, no portion cost of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(Bretaining experts) of the CodeAccounting Firm shall be borne by the Company and the Company shall pay such fees, costs and expenses as they become due. In performing the computations required hereunder, the Accounting Firm shall assume that taxes will be paid for state and federal purposes at the highest possible marginal tax rates which could be applicable to the Executive in excess the year of receipt of the Base Amount (as defined in Section 280G(b)(3) of payments, unless the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the CodeExecutive agrees otherwise.

Limitation on Payments. (a) Notwithstanding anything contained herein to the contrary, prior to the payment of any other provision of this Agreementamounts pursuant to Section 6(a) hereof, in the event that any payment or benefit received or to be received an independent national accounting firm designated by the Executive Bank (including any payment or benefit received in connection with a termination of the Executive’s employment, “Accounting Firm”) shall compute whether pursuant there would be payable to the terms Executive any “excess parachute payments,” within the meaning of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 280G of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason total “parachute payments,” within the meaning of Section 280G of the Code in Code, payable or to be provided to the Executive, whether by the Bank or any of its affiliates or by any successor to the Bank or any such other planaffiliate, arrangement or agreement, the cash severance payments and whether under this Agreement shall first or outside of this Agreement. If there would be reducedany excess parachute payments, and the noncash severance payments hereunder shall thereafter be reduced, Accounting Firm will compute the net after-tax proceeds to the extent necessary so that no portion Executive, taking into account the excise tax imposed by Section 4999 of the Total Payments is subject to the Excise Tax but only Code, if (i) the net amount of such Total Payments, as so parachute payments were reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive point that are exempt from the total thereof would not exceed three times the “base amount” as defined in Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A 280G of the Code, but excluding any less One Dollar ($1.00), or (ii) such parachute payments attributable were not reduced. If not reducing such parachute payments would result in a greater after-tax amount to any acceleration of vesting or the Executive, such parachute payments with respect shall not be reduced. If reducing such parachute payments would result in a greater after-tax amount to any equity award that are exempt from Section 409A the Executive, they shall be reduced to such lesser amount. If such parachute payments must be reduced, the Executive shall direct which of the Code; (Cpayments are to be reduced and the manner in which each is to be limited or modified. The determination by the Accounting Firm shall be binding upon the Bank and its affiliated companies and the Executive subject to the application of Section 22(c) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in timehereof. (b) For purposes As a result of determining whether various incentive or other plans, the Executive may be entitled to receive various parachute payments over a period of several years. In such event, the Accounting Firm may need to update its Section 22(a) calculations one or more times. In the event that all or a portion of a parachute payment is not made due to the limitations of this Section 22, the Bank and its affiliated companies shall not be relieved of liability for such amount but such parachute payment shall be deferred and included in calculations with respect to subsequent parachute payments. (c) As a result of uncertainty in the extent application of section 280G of the Code at the time of determinations by the Accounting Firm hereunder, uncertainties in the valuation of future payments, and deferrals pursuant to Section 6(a), it is possible that parachute payments will have been made by the Bank and its affiliated companies which should not have been made (an “Overpayment”) or that additional parachute payments which will not have been made by the Bank and its affiliated companies could have been made (an “Underpayment”), consistent in each case with the other provisions of this Section 22. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against the Bank or any of its affiliated companies or the Executive which the Total Payments will Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, such Overpayment shall be subject treated for all purposes as a loan to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of Executive which the Executive shall have waived repay to the Bank or such affiliated company, together with interest at such time and the applicable federal rate provided for in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(Asection 7872(f)(2)(A) of the Code) and; provided, in calculating the Excise Taxhowever, that no portion of such Total Payments amount shall be taken into account which, in payable by the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within Executive to the meaning of Section 280G(b)(4)(B) Bank or such affiliated company if and to the extent that such payment would not reduce the amount which is subject to taxation under section 4999 of the Code. In the event that the Accounting Firm determines that an Underpayment has occurred, in excess such Underpayment shall promptly be paid or transferred by the Bank or such affiliated company to or for the benefit of the Base Amount (as defined Executive, together with interest at the applicable federal rate provided for in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4section 7872(f)(2)(A) of the Code. (d) All fees, costs and expenses (including, but not limited to, the cost of retaining experts) of the Accounting Firm shall be borne by the Bank and the Bank shall pay such fees, costs and expenses as they become due. In performing the computations required hereunder, the Accounting Firm shall assume that all parachute payments to be made to the Executive will be subject to federal and state income tax at the maximum rate in effect at the time the determination is made unless the Executive provides the Accounting Firm with evidence that it is more probable than not that one or more parachute payments will be taxable at a lower rate, or lower rates, in which case the Accounting Firm shall assume that such parachute payments will be taxed at the lower rate or rates. (e) In the event this Agreement is subject to Section 18(k) of the FDIA at the time any payment is to be made by the Bank to the Executive pursuant to this Agreement or otherwise, such payment will be subject to, and conditioned upon, its compliance with Section 18(k) of the FDIA and any regulations promulgated thereunder.

Limitation on Payments. (a) Notwithstanding any other provision Within fifteen (15) business days of this Agreementthe Termination Date, in the event that any payment or benefit received or to be received an independent national accounting hum designated by the Executive Company (including the "Accounting Firm") shall compute whether there would be any payment or benefit received in connection with a termination of "excess parachute payments" payable to the Executive’s employment, whether pursuant to within the terms meaning of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 280G of the Internal Revenue Code of 1986, as amended (the “"Code”) (the “Excise Tax”"), then, after taking into account any reduction in the Total Payments provided by reason total "parachute payments," within the meaning of Section 280G of the Code in such Code, payable to the Executive by the Company or any successor thereto under this Agreement and any other plan, arrangement agreement or agreementotherwise. If there would be any excess parachute payments, the cash severance payments under this Agreement shall first be reduced, and Accounting Firm will compute the noncash severance payments hereunder shall thereafter be reduced, net after-tax proceeds to the extent necessary so that no portion Executive, taking into account the excise tax imposed by Section 4999 of the Total Payments is subject to the Excise Tax but only Code, if (i) the net amount payments hereunder were reduced, but not below zero, such that the total parachute payments payable to the Executive would not exceed 299% of such Total Paymentsthe "base amount" as defined in Section 280G of the Code, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net payments hereunder were not reduced. If reducing the payments hereunder would result in a greater after-tax amount of to the Executive, such Total Payments without lesser amount shall be paid to the Executive. If not reducing the payments hereunder would result in a greater after-tax amount to the Executive, such reduction (but after subtracting payments shall not be reduced. The determination by the net amount of federal, state and local income taxes on such Total Payments Accounting Firm shall be binding upon the Company and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from application of Section 409A of the Code; (B22(b) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in timehereof. (b) For purposes As a result of determining whether and the extent to which uncertainty m the Total Payments application of Sections 280G of the Code, it is possible that excess parachute payments will be subject paid when such payment would result in a lesser after-tax amount to the Excise TaxExecutive; this is not the intent hereof. In such cases, (i) no portion the payment of any excess parachute payments will be void ab initio as regards any such excess. Any excess will be treated as a loan by the Total Payments Company to the receipt or enjoyment of which Executive. The Executive will return the Executive shall have waived at such time and in such manner as not excess to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does within fifteen (I 5) business days of any determination by the Accounting Firm that excess parachute payments have been paid when not constitute a “parachute payment” within so intended, with interest at an annual rate equal to the meaning of rate provided in Section 280G(b)(21274(b)(2)(B) of the Code (including by reason or 120% of such rate if the Accounting Firm determines that such rate is necessary to avoid an excise tax under Section 280G(b)(4)(A) 4999 of the Code) andfrom the date the Executive received the excess until it is repaid to the Company. (c) All fees, in calculating costs and expenses (including, but not limited to, the Excise Tax, no portion cost of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(Bretaining experts) of the CodeAccounting Firm shall be borne by the Company and the Company shall pay such fees, costs and expenses as they become due. In performing the computations required hereunder, the Accounting Firm shall assume that taxes will be paid for state and federal purposes at the highest possible marginal tax rates which could be applicable to the Executive in excess the yeah of receipt of the Base Amount (as defined in Section 280G(b)(3) of payments, unless the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the CodeExecutive agrees otherwise."

Limitation on Payments. (a) Notwithstanding any other provision of anything in this AgreementAgreement to the contrary, in the event that if any payment or benefit received or to be received by the distribution Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether would receive pursuant to the terms of this Agreement or any other plan, arrangement or agreement) otherwise (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total PaymentsPayment”) would be subject (in whole or part), to i) constitute a “parachute payment” within the excise tax imposed under meaning of Section 4999 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), thenthen the Company shall cause to be determined, after before any amounts of the Payment are paid to Executive, which of the following alternative forms of payment would maximize Executive’s after-tax proceeds: (A) payment in full of the entire amount of the Payment (a “Full Payment”), or (B) payment of only a part of the Payment so that Executive receives that largest Payment possible without being subject to the Excise Tax (a “Reduced Payment”), whichever of the foregoing amounts, taking into account any the applicable federal, state and local income taxes and the Excise Tax (all computed at the highest marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes), results in Executive’s receipt, on an after-tax basis, of the Total Payments greater amount of the Payment, notwithstanding that all or some portion the Payment may be subject to the Excise Tax. Notwithstanding the above, provided by reason that no securities of the Company are then-publicly traded and subject to Executive waiving Executive’s right to the Payment that would otherwise trigger the Excise Tax, the Company will use its good faith efforts to conduct a vote of the Company’s stockholders in accordance with the applicable provisions of Section 280G of the Code in with such other plan, arrangement or agreement, vote giving the cash severance payments under this Agreement shall first be reduced, and stockholders the noncash severance payments hereunder shall thereafter be reduced, opportunity to approve the extent necessary so amount of such Payment that no portion of the Total Payments is subject to would otherwise trigger the Excise Tax but only in an effort to exempt such Payment from the Excise Tax if possible. (b) If a Reduced Payment is made pursuant to this Section 5, (i) the net amount of such Total PaymentsPayment shall be paid only to the extent permitted under the Reduced Payment alternative, as so reduced (and after subtracting Executive shall have no rights to any additional payments and/or benefits constituting the net amount of federalPayment, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced payments and/or benefits will occur in the following order: (A1) reduction of any cash severance payments otherwise payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated vesting of stock options; and (4) reduction of other benefits payable to Executive. In the Executive event that are exempt acceleration of compensation from Executive’s equity awards is to be reduced, such acceleration of vesting shall be canceled in the reverse order of the date of grant. (c) All determinations required to be made under this Section 409A 5 shall be made by such adviser as may be selected by the Company, provided, that the adviser’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code; . The adviser shall provide its determination, together with detailed supporting calculations and documentation, to Executive and the Company within fifteen (B15) reduction business days following the date of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A termination of the CodeExecutive’s employment, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis if applicable, or such other manner time as requested by Executive (provided, that complies with Section 409A Executive reasonably believes that any of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will may be subject to the Excise Tax, (i) no portion or the Company. All reasonable fees and expenses of the Total Payments the receipt or enjoyment of which the Executive shall have waived at adviser in reaching such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code determination shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected borne solely by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in In the event that any payment or benefit received or to be received by the Executive shall become entitled to the payments and/or benefits provided by Section 3 or any other amounts (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreementagreement with the Company, any person whose actions result in a change of ownership covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person) as a result of a Change of Control (all collectively the "Company Payments"), and such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would Company Payments will be subject (in whole or part), to the excise tax (the "Excise Tax") imposed under by Section 4999 of the Internal Revenue Code of 1986, as amended (and any similar tax that may hereafter be imposed) the Company shall pay to the Executive at the time specified in subsection (d) below an additional amount (the “Code”"Gross-up Payment") (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount retained by the Executive, after deduction of such Total Payments, as so reduced (any Excise Tax on the Company Payments and after subtracting the net amount of any federal, state state, and local income taxes on such reduced Total Payments and after taking into account or payroll tax upon the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to Gross-up Payment provided for by this paragraph (ii) the net amount of such Total Payments without such reduction (a), but after subtracting the net amount of before deduction for any federal, state state, and local income taxes or payroll tax on the Company Payments, shall be equal to the Company Payments. Notwithstanding the foregoing provisions of this Section 4 to the contrary, if it shall be determined that the Executive is entitled to a Gross-up Payment, but the Company Payments do not exceed one hundred ten percent (110%) of the greatest amount (the "Reduced Amount") that could be paid to the Executive such Total that the receipt of Company Payments would not give rise to any Excise Tax, then no Gross-up Payment shall be made to the Executive and the amount of Excise Tax to which Company Payments, in the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments aggregate, shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in timeReduced Amount. (b) For purposes of determining whether any of the Company Payments and Gross-up Payments (collectively the extent to which the "Total Payments Payments") will be subject to the Excise Tax and determining the amount of such Excise Tax, : (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “treated as "parachute payment” payments" within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, and all "parachute payments" in excess of the Base Amount "base amount" (as defined in under Code Section 280G(b)(3) of the Code) allocable shall be treated as subject to the Excise Tax, unless and except to the extent that, in the opinion of the Company's independent certified public accountants appointed prior to any change in ownership (as defined under Code Section 280G(b)(2)) or tax counsel selected by such accountants (the "Accountants") such Total Payments (in whole or in part), (A) do not constitute "parachute payments," (B) represent reasonable compensationcompensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code or (C) are otherwise not subject to the Excise Tax; and (iiiii) the value of any non non-cash benefit benefits or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors Accountants in accordance with the principles of Sections 280G(d)(3Section 280G of the Code. (c) For purposes of determining the amount of the Gross-up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Employee's residence for the calendar year in which the Company Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. In the event that the Excise Tax is subsequently determined by the Accountants to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the prior Gross-up Payment attributable to such reduction (4plus the portion of the Gross-up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the portion of the Gross-up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax or a federal, state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event any portion of the Gross-up Payment to be refunded to the Company has been paid to any federal, state and local tax authority, repayment thereof (and related amounts) shall not be required until actual refund or credit of such portion has been made to the Executive, and interest payable to the Company shall not exceed the interest received or credited to the Executive by such tax authority for the period it held such portion. Executive and the Company shall mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if Executive's claim for refund or credit is denied. In the event that the Excise Tax is later determined by the Accountants or the Internal Revenue Service to exceed the amount taken into account hereunder at the time the Gross-up Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest or penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. (d) The Gross-up Payment or portion thereof provided for in subsection (c) above shall be paid not later than the thirtieth (30th) day following an event occurring which subjects the Executive to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Accountants, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Code Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to subsection (c) hereof, as soon as the amount thereof can reasonably be determined, but in no event later than the ninetieth (90th) day after the occurrence of the event subjecting the Executive to the Excise Tax. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (e) In the event of any controversy with the Internal Revenue Service (or other taxing authority) under this Section 4, the Executive shall permit the Company to control issues related to this Section 4 (at its expense), provided that such issues do not potentially materially adversely affect the Executive, but the Executive shall control any other issues. In the event the issues are interrelated, the Executive and the Company shall in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree, the Executive shall make the final determination with regard to the issues. In the event of any conference with any taxing authority as to the Excise Tax or associated income taxes, the Executive shall permit the representative of the Company to accompany him, and the Executive and his representative shall cooperate with the Company and its representative. (f) The Company shall be responsible for all charges of the Accountants.

Limitation on Payments. (a) Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) agreement (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) ), would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement Total Payments shall first be reduced, and the noncash severance payments hereunder shall thereafter be reducedreduced as set forth herein, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; , (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments payment attributable to any the acceleration of vesting or payments payment with respect to any equity award that are is exempt from Section 409A of the Code; , (C) reduction of any other payments or benefits otherwise payable to Employee the Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments payment attributable to any the acceleration of vesting and payments payment with respect to any equity award that are is exempt from Section 409A of the Code; , and (D) reduction of any payments attributable to any the acceleration of vesting or payments payment with respect to any equity award that are is exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in the event If it is determined that any payment or benefit received or to be received distribution by the Executive (including any payment Company to or for the benefit received in connection with a termination of the Executive’s employment, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or any other plan, arrangement or agreement) otherwise (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the a “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise TaxPayment”), then, after taking into account any reduction in would constitute an “excess parachute payment” within the Total Payments provided by reason meaning of Section section 280G of the Code in such other plan, arrangement or agreementCode, the cash severance payments aggregate present value of the Payments under this the Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, reduced (but not below zero) to the extent necessary so Reduced Amount (as defined below), if the net after-tax amount that no portion of the Total Executive would receive after the reduction is equal to or greater than the net after-tax amount that the Executive would receive without the reduction. The Payments is subject to shall be reduced as described in the Excise Tax but preceding sentence only if (iA) the net amount of such Total the Payments, as so reduced (and after subtracting the net amount of federal, state and local income and payroll taxes on such the reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) ), is greater than or equal to (iiB) the net amount of such Total the Payments without such reduction (but after subtracting the net amount of federal, state and local income and payroll taxes on such Total the Payments and the amount of Excise Tax (as defined below) to which the Executive would be subject in with respect of such to the unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments “Reduced Amount” shall be reduced an amount expressed in present value which maximizes the following order: (A) reduction aggregate present value of Payments under this Agreement without causing any cash severance payments otherwise payable Payment under this Agreement to be subject to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A excise tax under section 4999 of the Code, but excluding any payments attributable to any acceleration of vesting or payments determined in accordance with respect to any equity award that are exempt from Section 409A section 280G(d)(4) of the Code; . The Company shall reduce the Payments under this Agreement by first reducing any Payments that are payable in cash under Sections 10(c)(1), 10(c)(2), 10(c)(3), and Section 4(b) (Cin such order) reduction of and then reducing any other payments Payments that are not payable in cash under this Agreement. Only amounts or benefits otherwise payable under this Agreement shall be reduced pursuant to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and this subsection (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of a). In determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute Payment constitutes a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) section 280G of the Code, in excess the Accounting Firm shall make a reasonable determination of the Base Amount (as defined value to be assigned to the restrictive covenants in effect for the Executive pursuant to Section 280G(b)(3) 16 of this Agreement, and the amount of the Code) allocable to such reasonable compensation; and (iii) Executive’s potential parachute payments under section 280G of the Code shall be reduced by the value of any non cash benefit or any deferred payment or benefit included in such restrictive covenants to the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) maximum extent permitted under section 280G of the CodeCode and the regulations thereunder.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreementanything to the contrary herein, in the event that the sum aggregate present value of (i) the Severance Payment payable under Section 6 hereof, (ii) any payment and all additional amount or benefit received benefits which may be paid or conferred to be received by the or on behalf of Executive in accordance with Section 7 hereof, and (including iii) any payment and all other amounts or benefit received in connection with benefits paid or conferred to or on behalf of Executive would constitute a termination of the Executive’s employment, whether pursuant to the terms of “parachute payment” (“parachute payment” as used this Agreement shall be defined in accordance with Section 280G(b)(2), or any other plansuccessor thereto, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”amended), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reducedreduced (by the minimum possible amounts) until no amount payable to Executive under this Agreement constitutes a parachute payment; provided, and the noncash severance payments hereunder shall thereafter be reducedhowever, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only such reduction under this Section 8 shall be made if (i) the net amount of such Total Payments, as so reduced after-tax payment (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions Federal, state, local or other income and personal exemptions attributable excise taxes) to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments which Executive would otherwise be entitled without such reduction (but after subtracting would be greater than the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after-tax payment (after taking into account Federal, state, local or other income and excise taxes) to Executive resulting from the phase out receipt of itemized deductions and personal exemptions attributable to such unreduced Total Paymentspayments with such reduction. If, as a result of subsequent events or conditions (including a subsequent payment or absence of a subsequent payment under this Agreement). The Total Payments , it is determined that payments hereunder have been reduced by more than the minimum amount required under this Section 8, then an additional payment shall be reduced promptly made to Executive in the following order: (A) reduction of any cash severance payments otherwise payable an amount equal to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable excess reduction. All determinations required to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last under this Section 8, including whether a payment would result in time. (b) For purposes of determining whether a parachute payment and the extent assumptions to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived utilized in arriving at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code determination, shall be taken into account; made and approved within fifteen (ii15) no portion of days after the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing Qualifying Termination by both (“Independent Advisors”1) accountants selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; Company and (iii2) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the CodeExecutive’s designated financial advisor.

Limitation on Payments. (a) Notwithstanding any other provision of anything in this AgreementAgreement to the contrary, in the event that if any payment or benefit distribution received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof3 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), ) to the excise tax imposed under by Code Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement Executive’s remaining Total Payments shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on applicable to such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments reduction undertaken pursuant to this Section 4 shall be reduced accomplished first by reducing or eliminating any cash payments subject to Section 409A as deferred compensation (with payments to be made furthest in the following order: (A) reduction of any future being reduced first), then by reducing or eliminating cash severance payments otherwise payable to the Executive that are exempt from not subject to Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code409A, but excluding any then by reducing payments attributable to any acceleration of equity-based compensation (or the accelerated vesting or payments with respect thereof) subject to any equity award that are exempt from Section 409A of as deferred compensation (with payments to be made furthest in the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Codefuture being reduced first), but excluding any and finally by reducing payments attributable to any acceleration of equity-based compensation (or the accelerated vesting and payments with respect thereof) that is not subject to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time.409A. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments Payments, the receipt or enjoyment retention of which the Executive shall have has waived at such time and in such manner so as not to constitute a “payment” within the meaning of Code Section 280G(b) of the Code shall ), will be taken into account; (ii) no portion of the Total Payments shall will be taken into account which, in the written opinion of independent auditors of an independent, nationally recognized standing accounting firm (the “Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Code Section 280G(b)(2) of the Code (including by reason of Code Section 280G(b)(4)(A) of the Code)) and, in calculating the Excise Tax, no portion of such Total Payments shall will be taken into account which, in the opinion of Independent Advisors, constitutes EXTERRAN CORPORATION PAGE 5 OF 12 CHANGE OF CONTROL AGREEMENT reasonable compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B) of the Code), in excess of the Base Amount “base amount” (as defined in Code Section 280G(b)(3) of the Code)) allocable to such reasonable compensation; and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Code Sections 280G(d)(3) and (4) of the Code).

Limitation on Payments. (a) Notwithstanding any other provision of Anything in this AgreementAgreement to the contrary notwithstanding, in the event it shall be determined that any payment “payments in the nature of compensation” (as that term is used in Section 280G of the Code and any regulations promulgated thereunder) by the Company or any of its affiliated companies to or for the benefit received or to be received by of the Executive (including any payment whether paid or benefit received in connection with a termination of the Executive’s employment, whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreementotherwise) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under by Section 4999 of the Internal Revenue Code of 1986or any interest or penalties would be incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction then the Payments shall be either (i) payable in full or (ii) reduced to one dollar less than the Total Payments provided by reason of amount that would constitute a “parachute payment” under Section 280G of the Code in such other plan(the “Reduced Amount”), arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion whichever of the Total Payments is subject to foregoing amounts, taking into account the Excise Tax but only if (i) the net amount of such Total Paymentsapplicable taxes, as so reduced (and after subtracting the net amount of including, without limitation, federal, state and local income and employment taxes and the Excise Tax, results in the receipt by the Executive, on such reduced Total Payments and after taking into account an after-tax basis, of the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net greatest amount of such Total Payments. If the Payments without such reduction (but after subtracting the net amount are not reduced pursuant to this Section 4.1, Executive shall be responsible for payment of federal, state and local income taxes on such Total Payments and the amount of any Excise Tax to which resulting from the Executive would be subject in respect of such unreduced Total Payments. If the Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments are reduced, they shall be reduced in the following orderorder of priority: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Payments under Section 409A of the Code; 3.1(b), (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Payments under Section 409A of the Code3.1(e), but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Payments under Section 409A of the Code3.1(d)(ii), but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction other Payments to be provided on or after the Executive’s termination of any payments attributable employment and (E) other Payments to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject provided prior to the Excise TaxExecutive’s termination of employment; provided, however, that only Payments (ior portions of Payments) no portion that, if reduced, would reduce the total amount of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute paymentpayments” within the meaning of (as that term is used in Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) 280G of the Code) andshall be reduced. If there is a question as to which Payments within each of categories (D) and (E) of the prior sentence are to be reduced first, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, reduced in reverse order beginning with Payments that are to be paid the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within farthest in time from the meaning of Section 280G(b)(4)(B) of date on which the Code, “change in excess of the Base Amount ownership or effective control” (as defined that term is used in Section 280G(b)(3) 280G of the Code) allocable to such reasonable compensation; and or “change in ownership of a substantial portion of the assets” (iii) the value of any non cash benefit or any deferred payment or benefit included as that term is used in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) Section 280G of the Code), as the case may be, shall have occurred.

Limitation on Payments. (a) Notwithstanding anything contained herein to the contrary, prior to the payment of any other provision of this Agreementamounts pursuant to Section 6(a) hereof, in the event that any payment or benefit received or to be received an independent national accounting firm designated by the Executive Company (including any payment or benefit received in connection with a termination of the Executive’s employment, "Accounting Firm") shall compute whether pursuant there would be payable to the terms Executive any "excess parachute payments," within the meaning of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 280G of the Internal Revenue Code of 1986, as amended (the “"Code”) (the “Excise Tax”"), then, after taking into account any reduction in the Total Payments provided by reason total "parachute payments," within the meaning of Section 280G of the Code in Code, payable or to be provided to the Executive, whether by the Company or any of its affiliates or by any successor to the Company or any such other planaffiliate, arrangement or agreement, the cash severance payments and whether under this Agreement shall first or outside of this Agreement. If there would be reducedany excess parachute payments, and the noncash severance payments hereunder shall thereafter be reduced, Accounting Firm will compute the net after-tax proceeds to the extent necessary so that no portion Executive, taking into account the excise tax imposed by Section 4999 of the Total Payments is subject to the Excise Tax but only Code, if (i) the net amount of such Total Payments, as so parachute payments were reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive point that are exempt from the total thereof would not exceed three times the "base amount" as defined in Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A 280G of the Code, but excluding any less One Dollar ($1.00), or (ii) such parachute payments attributable were not reduced. If not reducing such parachute payments would result in a greater after-tax amount to any acceleration of vesting or the Executive, such parachute payments with respect shall not be reduced. If reducing such parachute payments would result in a greater after-tax amount to any equity award that are exempt from Section 409A the Executive, they shall be reduced to such lesser amount. If such parachute payments must be reduced, the Executive shall direct which of the Code; (Cpayments are to be reduced and the manner in which each is to be limited or modified. The determination by the Accounting Firm shall be binding upon the Company and its affiliated companies and the Executive subject to the application of Section 23(c) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in timehereof. (b) For purposes As a result of determining whether various incentive or other plans, the Executive may be entitled to receive various parachute payments over a period of several years. In such event, the Accounting Firm may need to update its Section 23(a) calculations one or more times. In the event that all or a portion of a parachute payment is not made due to the limitations of this Section 23, the Company and its affiliated companies shall not be relieved of liability for such amount but such parachute payment shall be deferred and included in calculations with respect to subsequent parachute payments. (c) As a result of uncertainty in the extent application of section 280G of the Code at the time of determinations by the Accounting Firm hereunder, uncertainties in the valuation of future payments, and deferrals pursuant to Section 6(a), it is possible that parachute payments will have been made by the Company and its affiliated companies which should not have been made (an "Overpayment") or that additional parachute payments which will not have been made by the Company and its affiliated companies could have been made (an "Underpayment"), consistent in each case with the other provisions of this Section 23. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against the Company or any of its affiliated companies or the Executive which the Total Payments will Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, such Overpayment shall be subject treated for all purposes as a loan to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of Executive which the Executive shall have waived repay to the Company or such affiliated company, together with interest at such time and the applicable federal rate provided for in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(Asection 7872(f)(2)(A) of the Code) and; provided, in calculating the Excise Taxhowever, that no portion of such Total Payments amount shall be taken into account which, in payable by the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within Executive to the meaning of Section 280G(b)(4)(B) Company or such affiliated company if and to the extent that such payment would not reduce the amount which is subject to taxation under section 4999 of the Code. In the event that the Accounting Firm determines that an Underpayment has occurred, in excess such Underpayment shall promptly be paid or transferred by the Company or such affiliated company to or for the benefit of the Base Amount (as defined Executive, together with interest at the applicable federal rate provided for in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4section 7872(f)(2)(A) of the Code. (d) All fees, costs and expenses (including, but not limited to, the cost of retaining experts) of the Accounting Firm shall be borne by the Company and the Company shall pay such fees, costs and expenses as they become due. In performing the computations required hereunder, the Accounting Firm shall assume that all parachute payments to be made to the Executive will be subject to federal and state income tax at the maximum rate in effect at the time the determination is made unless the Executive provides the Accounting Firm with evidence that it is more probable than not that one or more parachute payments will be taxable at a lower rate, or lower rates, in which case the Accounting Firm shall assume that such parachute payments will be taxed at the lower rate or rates. (e) In the event this Agreement is subject to Section 18(k) of the Federal Deposit Insurance Act (the "FDIA") at the time any payment is to be made by the Company to the Executive pursuant to this Agreement or otherwise, such payment will be subject to, and conditioned upon, its compliance with Section 18(k) of the FDIA and any regulations promulgated thereunder.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 15 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), ) to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement Total Payments shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but such reduction shall be made only if (i) the net amount of such Total Payments, Payments as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) ), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee Executive on a pro-rata rated basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of the Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision of anything in this AgreementAgreement to the contrary, in the event that if any payment or benefit distribution received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof3 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), ) to the excise tax imposed under by Code Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement Executive’s remaining Total Payments shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on applicable to such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments reduction undertaken pursuant to this Section 4 shall be reduced accomplished first by reducing or eliminating any cash payments subject to Code Section 409A as deferred compensation (with payments to be made furthest in the following order: (A) reduction of any future being reduced first), then by reducing or eliminating cash severance payments otherwise payable to the Executive that are exempt from not subject to Code Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code409A, but excluding any then by reducing payments attributable to any acceleration of equity-based compensation (or the accelerated vesting or payments with respect thereof) subject to any equity award that are exempt from Code Section 409A of as deferred compensation (with payments to be made furthest in the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Codefuture being reduced first), but excluding any and finally by reducing payments attributable to any acceleration of equity-based compensation (or the accelerated vesting and payments with respect thereof) that is not subject to any equity award that are exempt from Code Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time.409A. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments Payments, the receipt or enjoyment retention of which the Executive shall have has waived at such time and in such manner so as not to constitute a “payment” within the meaning of Code Section 280G(b) of the Code shall ), will be taken into account; (ii) no portion of the Total Payments shall will be taken into account which, in the written opinion of independent auditors of an independent, nationally recognized standing accounting firm (the “Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Code Section 280G(b)(2) of the Code (including by reason of Code Section 280G(b)(4)(A) of the Code)) and, in calculating the Excise Tax, no portion of such Total Payments shall will be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B) of the Code), in excess of the Base Amount (as “base amount”(as defined in Code Section 280G(b)(3) of the Code)) allocable to such reasonable compensation; and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Code Sections 280G(d)(3) and (4) of the Code).

Limitation on Payments. (a) 7.1 Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof5 and Section 6 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash non-cash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced OC\1608076.7 Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; , (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments payment attributable to any the acceleration of vesting or payments payment with respect to any stock option or other equity award with respect to the Company’s common stock that are exempt from Section 409A of the Code; , (C) reduction of any other payments or benefits otherwise payable to Employee Executive on a pro-pro rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments payment attributable to any the acceleration of vesting and payments payment with respect to any stock option or other equity award with respect to the Company's common stock that are exempt from Section 409A of the Code; , and (D) reduction of any payments attributable to any the acceleration of vesting or payments payment with respect to any stock option or other equity award with respect to the Company’s common stock that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) 7.2 For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of an accounting firm or compensation consulting firm with nationally recognized standing and substantial expertise and experience on Section 280G matters (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereofparagraph 5 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced by the Company in its reasonable discretion (other than with respect to payments subject to Section 409A of the Code) in the following order: (A) reduction of any cash severance payments payment, excluding any cash payment with respect to the acceleration of equity awards, that is otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are is exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (CB) reduction of any other payments or benefits otherwise payable to Employee the Executive on a pro-rata basis or such other in a manner that complies with Section 409A of the Code, but excluding Code and (C) reduction of any payments attributable to any acceleration of vesting and payments payment with respect to any the acceleration of equity award awards that are is otherwise payable to the Executive that is exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iiiii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the termination of the Executive’s employmentemployment with the Company, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement Total Payments shall first be reduced, and reduced in the noncash severance payments hereunder shall thereafter be reducedorder specified below, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; , other than payments that are subject to Q/A 24(c) of Treas. Reg. Sec. 1.280G)-1, (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any other than payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A subject to Q/A 24(c) of the Code; Treas. Reg. Sec. 1.280G)-1, (C) reduction of any other payments or benefits otherwise payable to Employee the Executive, other than payments that are subject to Q/A 24(c) of Treas. Reg. Sec. 1.280G)1 and (D) reduction of any payments that are subject to Q/A 24(c) of Treas. Reg. Sec. 1.280G). The reduction of any payments that are subject to Section 409A of the Code shall be made on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) All determinations required to be made under this Section 2.8 shall be made by the Company’s regular outside independent public accounting firm (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Effective Date of Termination, if applicable, or such earlier time as is requested by the Company (c) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, Accounting Firm does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent AdvisorsAccounting Firm, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iii) the value of any non cash noncash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors Accounting Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive you (including any payment or benefit received in connection with a Change in Control or the termination of the Executive’s your employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof2.2 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive you would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced by the Employer in its reasonable discretion in the following order: (A) reduction of any cash severance payments payment, excluding any cash payment with respect to the acceleration of equity awards, that is otherwise payable to the Executive you that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are is exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (CB) reduction of any other payments or benefits otherwise payable to Employee you on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding Code and (C) reduction of any payments attributable to any acceleration of vesting and payments payment with respect to any the acceleration of equity award awards that are is otherwise payable to you that is exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive you shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the CompanyEmployer, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision of Anything in this AgreementAgreement to the contrary notwithstanding, in the event that if any payment or benefit received Executive would receive from the Company or to be received by the Executive otherwise (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total PaymentsPayment”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2280G of the Code; and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (including by reason of Section 280G(b)(4)(Athe “Excise Tax”), then such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Code) and, Payment that would result in calculating no portion of the Payment being subject to the Excise Tax; or (y) the largest portion, no portion up to and including the total, of such Total Payments the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment. Any reduction made pursuant to this Section 5(a) shall be taken into account whichmade in accordance with the following order of priority: (i) stock options whose exercise price exceeds the fair market value of the optioned stock (“Underwater Options”) (ii) Full Credit Payments (as defined below) that are payable in cash, (iii) non-cash Full Credit Payments that are taxable, (iv) non-cash Full Credit Payments that are not taxable (v) Partial Credit Payments (as defined below) and (vi) non-cash employee welfare benefits. In each case, reductions shall be made in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence of the event triggering the excise tax will be the first payment or benefit to be reduced (with reductions made pro-rata in the opinion event payments or benefits are owed at the same time). “Full Credit Payment” means a payment, distribution or benefit, whether paid or payable or distributed or distributable pursuant to the terms of Independent Advisorsthis Agreement or otherwise, constitutes reasonable compensation for services actually rendered, within that if reduced in value by one dollar reduces the meaning of Section 280G(b)(4)(B) amount of the Code, in excess of the Base Amount parachute payment (as defined in Section 280G(b)(3) 280G of the Code) allocable to by one dollar, determined as if such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment payment, distribution or benefit included in had been paid or distributed on the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) date of the Codeevent triggering the excise tax. “Partial Credit Payment” means any payment, distribution or benefit that is not a Full Credit Payment. In no event shall Executive have any discretion with respect to the ordering of payment reductions.

Limitation on Payments. (a) Notwithstanding any other provision of Anything in this AgreementAgreement to the contrary notwithstanding, in the event that any payment or distribution by or on behalf of the Company to or for the benefit received or to be received by the of Executive (including any payment whether paid or benefit received in connection with a termination of the Executive’s employment, whether payable or distributed or distributable pursuant to the terms of this Agreement or any other plan, arrangement or agreementotherwise) (all the “Payments”) is determined to be an “excess parachute payment” pursuant to Code Section 280G or any successor or substitute provision of the Code, with the effect that Executive would be liable for the payment of the excise tax described in Code Section 4999 or any successor or substitute provision of the Code (such payments and benefits, including the payments and benefits under Section 4 hereof, being excise tax is hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments Payments due under this Agreement Section 1 hereof shall first be reduced, and in the noncash severance payments hereunder shall thereafter be reducedmanner set forth below, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (iA) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state state, local and local other income taxes and FICA taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (iiB) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state state, local and local other income taxes and FICA taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Any reduction in the Payments due under Section 1 hereof pursuant to this Section 3 shall be reduced made in the following order: (A1) reduction the cash Payments (other than any such Payments with a value under Code Section 280G that is less than the full economic value of any cash severance payments otherwise payable such Payment, whether pursuant to the Executive that are exempt from Section 409A application of Q&A 24(c) of the Code; regulations promulgated under Code Section 280G or otherwise (Bsuch payments being hereinafter referred to as “Q&A 24(c) reduction of any other cash payments or benefits otherwise payable to the Executive Payments”)) due under Section 1 hereof that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as do not to constitute a “payment” deferred compensation within the meaning of Code Section 280G(b409A shall first be reduced, (2) of the Code shall be taken into account; all other Payments (iiother than any Q&A 24(c) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”Payments) selected by the Company, does due under Section 1 hereof that do not constitute a “parachute payment” deferred compensation within the meaning of Code Section 280G(b)(2409A shall next be reduced, (3) of the Code all Payments (including by reason of other than any Q&A 24(c)) due under Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable 1 hereof that do constitute deferred compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B) of the Code409A shall next be reduced (beginning with those payments last to be paid), in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) the cash Payments due under Section 1 hereof that constitute Q&A 24(c) Payments but do not constitute deferred compensation within the meaning of Code Section 409A shall next be reduced, (5) all other Payments due under Section 1 hereof that constitute Q&A 24(c) Payments but do not constitute deferred compensation within the meaning of Code Section 409A shall next be reduced and (6) all Q&A 24(c) Payments due under Section 1 hereof that do constitute deferred compensation within the meaning of Code Section 409A shall next be reduced (beginning with those payments last to be paid); provided, however, that, to the extent permitted by Code Section 409A, the Executive may elect to have the noncash Payments reduced (or eliminated) prior to any reduction of the Codecash Payments.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in In the event that any payment the severance or benefit received change in control-related or to be received by the Executive (including any payment other payments or benefit received benefits provided for in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other planotherwise payable to Executive (collectively, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to i) constitute “parachute payments” within the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason meaning Martindale - Executive Employment Agreement of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reducedCode, and the noncash severance payments hereunder shall thereafter (ii) but for this Section 8, would be reduced, subject to the excise tax imposed by Section 4999 of the Code, then such payments or benefits will be either: (a) delivered in full, or (b) delivered as to such lesser extent necessary so that which would result in no portion of the Total Payments is such benefits being subject to excise tax under Section 4999 of the Excise Tax but only if (i) Code, whichever of the net amount of such Total Paymentsforegoing amounts, as so reduced (and after subtracting taking into account the net amount of applicable federal, state and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by Executive on such reduced Total Payments and after taking into account an after-tax basis, of the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net greatest amount of such Total Payments without such reduction (but after subtracting the net amount of federalPayments, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect notwithstanding that all or some portion of such unreduced Total Payments and after taking into account may be taxable under Section 4999 of the phase out of itemized deductions and personal exemptions attributable Code. If a reduction in Payments constituting “parachute payments” is necessary so that Payments are delivered to such unreduced Total Payments). The Total Payments shall be reduced a lesser extent, reduction will occur in the following order: (Ai) reduction cancellation of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee awards granted “contingent on a pro-rata basis change in ownership or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and control” (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) 280G of the Code shall be taken into accountCode); (ii) no portion a pro rata reduction of (A) cash payments that are subject to Section 409A as deferred compensation and (B) cash payments not subject to Section 409A; (iii) a pro rata reduction of (A) employee benefits that are subject to Section 409A as deferred compensation and (B) employee benefits not subject to Section 409A; and (iv) a pro rata cancellation of (A) accelerated vesting of equity awards that are subject to Section 409A as deferred compensation and (B) equity awards not subject to Section 409A. If acceleration of vesting of equity awards is to be cancelled, such acceleration of vesting will be cancelled in the reverse order of the Total Payments shall date of grant of Executive’s equity awards. In no event will Executive have any discretion with respect to the ordering of payment reductions. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 8 will be taken into account which, made in the written opinion writing by a nationally recognized firm of independent auditors of nationally recognized standing (“Independent Advisors”) public accountants selected by the CompanyCompany (the “Accountants”), does not constitute a “parachute payment” within whose determination will be conclusive and binding upon Executive and the meaning Company for all purposes. For purposes of making the calculations required by this Section 280G(b)(2) 8, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code (including by reason of Section 280G(b)(4)(A) Sections 280G and 4999 of the Code) and, . The Company and Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in calculating order to make a determination under this Section 8. The Company will bear all costs the Excise Tax, no portion of such Total Payments shall be taken into account which, Accountants may reasonably incur in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of connection with any calculations contemplated by this Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code8.

Limitation on Payments. (a) A. Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 9 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise LA\3090510.2 tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash non-cash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) ), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (as defined below), (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code409A, but excluding any payments attributable to any the acceleration of vesting or payments with respect to any stock option or other equity award with respect to the Company’s Common Stock that are exempt from Section 409A of the Code; 409A, (C) reduction of any other payments or benefits otherwise payable to Employee Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code409A, but excluding any payments attributable to any the acceleration of vesting and payments with respect to any stock option or other equity award with respect to the Company’s Common Stock that are exempt from Section 409A of the Code; 409A, and (D) reduction of any payments attributable to any the acceleration of vesting or payments with respect to any stock option or other equity award with respect to the Company’s Common Stock that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time.409A. (b) B. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in the event that any payment or benefit received or to be received by the Executive Employee or paid on Employee’s behalf (including any payment or benefit received in connection with a termination of the ExecutiveEmployee’s employment, whether pursuant to the terms of this Agreement or Agreement, any other plan, arrangement or agreementagreement or otherwise) (all such payments and benefits, including the payments and benefits under this Section 4 hereof17, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (or any similar tax that may be imposed by any taxing authority) (such excise tax or similar tax, the “Excise Tax”), then, after taking into account any reduction in then the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, reduced solely to the extent necessary so to ensure that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income or payroll taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local or payroll income taxes on such Total Payments and the amount of Excise Tax to which the Executive Employee would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The If a reduction is to occur pursuant to this Section 17(a), unless an affirmative election by Employee is permitted by (such that it would not result in taxation under) Section 409A of the Code, the reduction to the Total Payments shall be reduced implemented in the following order: (Ax) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Codeunder this Agreement; (By) reduction accelerated vesting of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Codeequity-based awards; (Cz) reduction of non-cash benefits under this Agreement; and any other payments or benefits otherwise payable under this Agreement or otherwise. If no reduction is to occur pursuant to this Section 17(a), the Total Payments shall be delivered and paid to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in timefull. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive Employee shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of an independent, nationally recognized standing accounting firm and/or tax counsel appointed or engaged by Company with Employee’s prior written consent prior to any change in ownership or control (within the meaning of Treasury Regulations Section 1.280G-1, Q&As 27 - 29) (the “Independent Advisors”) selected by the Company), does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the written opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Coderendered (or for holding oneself out as available to perform services and refraining from performing services (such as under a covenant not to compete)), in excess of the Base Amount “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3280G of the Code. In the event that the Independent Advisors are serving as accountants, auditors or counsel for the individual, entity or group effecting the change in ownership or control (within the meaning of Treasury Regulations Section 1.280G-1, Q&As 27 - 29), Company shall appoint another nationally recognized accounting firm and/or tax counsel to make the determinations hereunder, subject to the written consent of Employee which shall not be unreasonably withheld (which firm(s) shall then be referred to as the “Independent Advisors” hereunder). All determinations hereunder shall be made by the Independent Advisors, who shall provide detailed supporting calculations both to Company and Employee at such time as it is requested by Company or Employee. The determination of the Independent Advisors shall be final and binding upon Company and Employee, absent manifest error. Company shall be responsible for all charges for the Independent Advisors. Company and Employee shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax covered by this Section 17. (4c) Notwithstanding anything contained in this Agreement or any other agreement between the Employee and the Company or any of its subsidiaries to the contrary, the Employee and the Company shall in good faith attempt to agree on steps to ensure that no payments to which the Employee would otherwise be entitled to receive pursuant to this Agreement or any such other plan, arrangement or agreement will be “parachute payments” as defined in Section 280G(b)(2) of the CodeCode and shall cooperate with each other to mitigate the impact of the Excise Tax and any potential reduction to payments or benefits provided under this Agreement, any other plan, arrangement or agreement or otherwise.

Limitation on Payments. (ai) Notwithstanding any other provision of Anything in this AgreementSection 5 to the contrary notwithstanding, in the event it shall be determined that any payment or distribution made, or benefit received provided, by the Company to or to be received by for the benefit of the Executive (including any payment whether paid or benefit received in connection with a termination of the Executive’s employment, whether payable or distributed or distributable or provided pursuant to the terms of this Agreement hereof or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”otherwise) would be subject (constitute a "parachute payment" as defined in whole or part), to the excise tax imposed under Section 4999 280G of the Internal Revenue Code of 1986, as amended (the “"Code”"), then the lump sum severance payment payable pursuant to Section 5(c)(i) shall be reduced so that the aggregate present value of all payments in the nature of compensation to (or for the benefit of) the Executive which are contingent on a change of control (as defined in Code Section 280G(b)(2)(A)) is One Dollar ($1.00) less than the amount which the Executive could receive without being considered to have received any parachute payment (the “Excise Tax”), then, after taking into account any amount of this reduction in the Total Payments provided by reason lump sum severance payment is referred to herein as the "Excess Amount"). The determination of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments any reduction required by this SECTION 5(f)(i) shall be reduced in made by an independent accounting firm (other than the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of Company's independent auditors of nationally recognized standing (“Independent Advisors”accounting firm) selected by the Company and acceptable to the Executive, and such determination shall be conclusive and binding on the parties hereto. (ii) Notwithstanding the provisions of Section 5(f)(i), if it is established, pursuant to a final determination of a court or an Internal Revenue Service proceeding which has been finally and conclusively resolved, that an Excess Amount was received by the Executive from the Company, does not constitute then such Excess Amount shall be deemed for all purposes to be a “parachute payment” within loan to the meaning of Executive made on the date the Executive received the Excess Amount and the Executive shall repay the Excess Amount to the Company on demand (but no less than ten (10) days after written demand is received by the Executive) together with interest on the Excess Amount at the "applicable Federal rate" (as defined in Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A1274(d) of the Code) and, in calculating from the Excise Tax, no portion date of the Executive's receipt of such Total Payments shall be taken into account which, in Excess Amount until the opinion date of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Coderepayment.

Limitation on Payments. (a) Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the termination of the Executive’s employmentemployment or service, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereofSections 3 or 6 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), ) to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments payment, excluding any cash payment with respect to the acceleration of equity awards, that is otherwise payable to the Executive that are is exempt from Section 409A of the Code; 409A, (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (DC) reduction of any payments attributable to any acceleration of vesting or payments payment with respect to any the acceleration of equity award awards that are is otherwise payable to Executive that is exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time.409A. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision of Anything in this AgreementAgreement to the contrary notwithstanding, in the event that any payment or distribution by or on behalf of the Company to or for the benefit received or to be received by the of Executive (including any payment whether paid or benefit received in connection with a termination of the Executive’s employment, whether payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, (the “Payments”) is determined to be an “excess parachute payment” pursuant to Code Section 280G or any other plansuccessor or substitute provision of the Code, arrangement with the effect that Executive would be liable for the payment of the excise tax described in Code Section 4999 or agreement) any successor or substitute provision of the Code (all such payments and benefits, including the payments and benefits under Section 4 hereof, being excise tax is hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, then after taking into account any reduction in the Total Payments provided by reason of Code Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments Payments due under this Agreement Section 1 hereof shall first be reduced, and in the noncash severance payments hereunder shall thereafter be reducedmanner set forth below, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (iA) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state state, local and local other income taxes and FICA taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (iiB) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state state, local and local other income taxes and FICA taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Any reduction in the Payments due under Section 1 hereof pursuant to this Section 3 shall be reduced made in the following order: (A1) reduction the cash Payments (other than any such Payments with a value under Code Section 280G that is less than the full economic value of any cash severance payments otherwise payable such Payment, whether pursuant to the Executive that are exempt from Section 409A application of Q&A 24(c) of the Code; regulations promulgated under Code Section 280G or otherwise (Bsuch payments being hereinafter referred to as “Q&A 24(c) reduction of any other cash payments or benefits otherwise payable to the Executive Payments”)) due under Section 1 hereof that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as do not to constitute a “payment” deferred compensation within the meaning of Code Section 280G(b409A shall first be reduced, (2) of the Code shall be taken into account; all other Payments (iiother than any Q&A 24(c) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”Payments) selected by the Company, does due under Section 1 hereof that do not constitute a “parachute payment” deferred compensation within the meaning of Code Section 280G(b)(2409A shall next be reduced, (3) of the Code all Payments (including by reason of other than any Q&A 24(c)) due under Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable 1 hereof that do constitute deferred compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B) of the Code409A shall next be reduced (beginning with those payments last to be paid), in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) the cash Payments due under Section 1 hereof that constitute Q&A 24(c) Payments but do not constitute deferred compensation within the meaning of Code Section 409A shall next be reduced, (5) all other Payments due under Section 1 hereof that constitute Q&A 24(c) Payments but do not constitute deferred compensation within the meaning of Code Section 409A shall next be reduced and (6) all Q&A 24(c) Payments due under Section 1 hereof that do constitute deferred compensation within the meaning of Code Section 409A shall next be reduced (beginning with those payments last to be paid); provided, however, that, to the extent permitted by Code Section 409A, the Executive may elect to have the noncash Payments reduced (or eliminated) prior to any reduction of the Codecash Payments.

Limitation on Payments. (a) Notwithstanding any other provision of anything in this AgreementAgreement to the contrary, in the event that if any payment or benefit distribution received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof3 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), ) to the excise tax imposed under by Code Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement Executive’s remaining Total Payments shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on applicable to such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments reduction undertaken pursuant to this Section 4 shall be reduced accomplished first by reducing or eliminating any cash payments subject to Section 409A as deferred compensation (with payments to be made furthest in the following order: (A) reduction of any future being reduced first), then by reducing or eliminating cash severance payments otherwise payable to the Executive that are exempt from not subject to Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code409A, but excluding any then by reducing payments attributable to any acceleration of equity-based compensation (or the accelerated vesting or payments with respect thereof) subject to any equity award that are exempt from Section 409A of as deferred compensation (with payments to be made furthest in the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Codefuture being reduced first), but excluding any and finally by reducing payments attributable to any acceleration of equity-based compensation (or the accelerated vesting and payments with respect thereof) that is not subject to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time.409A. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments Payments, the receipt or enjoyment retention of which the Executive shall have has waived at such time and in such manner so as not to constitute a “payment” within the meaning of Code Section 280G(b) of the Code shall ), will be taken into account; (ii) no portion of the Total Payments shall will be taken into account which, in the written opinion of independent auditors of an independent, nationally recognized standing accounting firm (the “Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Code Section 280G(b)(2) of the Code (including by reason of Code Section 280G(b)(4)(A) of the Code)) and, in calculating the Excise Tax, no portion of such Total Payments shall will be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Code Section 280G(b)(4)(B) of the Code), in excess of the Base Amount “base amount” (as defined in Code Section 280G(b)(3) of the Code)) allocable to such reasonable compensation; and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Code Sections 280G(d)(3) and (4) of the Code).

Limitation on Payments. (a) Notwithstanding any other provision of in this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant Agreement to the terms contrary, if the total amount of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits to be paid or provided to Executive under Section 4 hereof, being hereinafter referred this Agreement which are considered to as be "parachute payments" within the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason meaning of Section 280G of the Code Code, when added to any other such "parachute payments" received by Executive from HEC or from a member of HEC's affiliated group (as provided in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (iSection 280G(d)(5) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction or from HEC's successor or a member of such successor's affiliated group, whether or not under this Agreement, are in excess of the amount Executive can receive without causing HEC to lose its deduction with respect to all or any other cash payments or benefits otherwise payable to the Executive that are exempt from portion of such total amount on account of Section 409A 280G of the Code, but excluding any the amount of payments attributable and benefits to any acceleration of vesting be paid or provided to Executive under this Agreement which are parachute payments shall be reduced to the highest amount which will not cause HEC to lose its deduction with respect to any equity award that are exempt from such payments and benefits on account of Section 409A 280G of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes All determinations required to be made under this Section 4 shall be made by Deloitte & Touche (the "Accounting Firm"), which shall provide detailed supporting calculations both to HEC and Executive within 10 business days of determining whether the date of a Change of Control or such earlier time as is requested by HEC. Any such determination by the Accounting Firm shall be binding upon HEC and Executive. Within five business days after the determination by the Accounting Firm (or, if later, the date specified in Section 7), HEC shall pay to or distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement. All fees and expenses of the Accounting Firm shall be borne solely by HEC. (c) if and to the extent to such payment would not reduce the amount which the Total Payments will be is subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of taxation under Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) 4999 of the Code) and. In the event that the Accounting Firm determines that an Underpayment has occurred, in calculating the Excise Tax, no portion of any such Total Payments Underpayment shall be taken into account which, in promptly paid by HEC to or for the opinion benefit of Independent Advisors, constitutes reasonable compensation Executive together with interest at the applicable federal rate provided for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (47872(f)(2) of the Code.

Limitation on Payments. (a) 6.1 Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination Change in Control or the termination, of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof5 and Section 6 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G 2800 of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash non-cash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Total. Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced unreduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced =reduced Total Payments). The Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; , (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments payment attributable to any the acceleration of vesting or payments payment with respect to any stock option or other equity award with respect to the Company’s common stock that are exempt from Section 409A of the Code; , (C) reduction of any other payments or benefits otherwise payable to Employee Executive on a pro-pro rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments payment attributable to any the acceleration of vesting and payments payment with respect to any stock option or other equity award with respect to the Company’s common stock that are exempt from Section 409A of the Code; , and (D) reduction of any payments attributable to any the acceleration of vesting or payments payment with respect to any stock option or other equity award with respect to the Company’s common stock that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) 6.2 For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of an accounting firm or compensation consulting firm with nationally recognized standing and substantial expertise and experience on Section 280G matters (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in In the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received Employee in connection with a the termination of the Executive’s employment, Employee's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreementagreement with CGII, the Company, any person whose actions result in a Change in Control or any person affiliated with CGII, the Company or such person) (all such payments and benefits, including collectively with the payments and benefits under Section 4 hereofhereunder, being hereinafter referred to as the “"Total Payments”") would not be subject deductible (in whole or part), to the excise tax imposed under Section 4999 ) as a result of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section section 280G of the Code in by the Company, an affiliate or other person making such other plan, arrangement payment or agreementproviding such benefit, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments benefits hereunder shall thereafter be reduced, to the extent necessary so that reduced until no portion of the Total Payments is subject not deductible, or the payments and benefits hereunder are reduced to the Excise Tax but only if (i) the net amount of such Total Paymentszero. At Employee's request, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting may be effected by extending the net amount of federal, state and local income taxes on such Total Payments and date the payment would otherwise be due by not more than five years or by decreasing the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments payment or benefit otherwise due and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments)payable. The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, this limitation (i) no portion of the Total Payments the receipt or enjoyment of which the Executive Employee shall have effectively waived at such time and in such manner as not writing prior to constitute a “payment” within the meaning date of Section 280G(b) of the Code payment shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) tax counsel selected by Employee and acceptable to the Company's independent auditors, does is not likely to constitute a “"parachute payment” " within the meaning of Section section 280G(b)(2) of the Code Code, (including by reason of Section 280G(b)(4)(Aiii) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments payments and benefits hereunder shall be taken into account whichreduced only to the extent necessary so that, in the opinion of Independent Advisorsthe tax counsel referred to in clause (ii), constitutes the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety are likely to constitute reasonable compensation for services actually rendered, rendered within the meaning of Section 280G(b)(4)(Bsection 280G(b)(4) of the Code, in excess of the Base Amount (Code or are otherwise not likely to be subject to disallowance as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensationdeductions; and (iiiiv) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors Company's independent auditors in accordance with the principles of Sections sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the termination of the Executive’s employmentemployment or service, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereofSections 3 or 6 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), ) to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments payment, excluding any cash payment with respect to the acceleration of equity awards, that is otherwise payable to the Executive that are is exempt from Section 409A of the Code; 409A, (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (DC) reduction of any payments attributable to any acceleration of vesting or payments payment with respect to any the acceleration of equity award awards that are is otherwise payable to Executive that is exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time.409A. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors or advisors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement, including any payment or benefit received in connection with a termination of Executive’s employment) (all such payments and benefits, including the payments and benefits under Section 4 14 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), ) to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement Total Payments shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but such reduction shall be made only if (i) the net amount of such Total Payments, Payments as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time.Total (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of the Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employmentyou, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) agreement (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) ), would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement Total Payments shall first be reduced, and the noncash severance payments hereunder shall thereafter be reducedreduced as set forth herein, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive you would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive you that are exempt from Section 409A of the Code; , (B) reduction of any other cash payments or benefits otherwise payable to the Executive you that are exempt from Section 409A of the Code, but excluding any payments payment attributable to any the acceleration of vesting or payments payment with respect to any equity award that are is exempt from Section 409A of the Code; , (C) reduction of any other payments or benefits otherwise payable to Employee you on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments payment attributable to any the acceleration of vesting and payments payment with respect to any equity award that are is exempt from Section 409A of the Code; , and (D) reduction of any payments attributable to any the acceleration of vesting or payments payment with respect to any equity award that are is exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive you shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in In the event that any payment the severance and other benefits provided for in this Plan or benefit received or otherwise payable to be received by a Participant (i) constitute "parachute payments" within the Executive (including any payment or benefit received in connection with a termination meaning of Section 280E of the Executive’s employmentCode ("280G Payments"), whether pursuant to the terms of and (ii) but for this Agreement or any other planSection 5, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “"Excise Tax”"), then, after taking into account any reduction in then the Total Payments provided by reason of Section 280G of the Code Payments will be either: (a) delivered in full, or (b) delivered as to such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the lesser extent necessary so that which would result in no portion of the Total Payments is such benefits being subject to the Excise Tax but only if (i) Tax, whichever of the net amount of such Total Paymentsforegoing amounts, as so reduced (and after subtracting taking into account the net amount of applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Participant on such reduced Total Payments and after taking into account an after-tax basis, of the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net greatest amount of such Total Payments without such reduction (but after subtracting the net amount of federalbenefits, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect notwithstanding that all or some portion of such unreduced Total benefits may be taxable under Section 4999 of the Code. If a reduction in the 280G Payments and after taking into account is necessary so that no portion of such benefits are subject to the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced Excise Tax, reduction will occur in the following order: (i) cancellation of awards granted "contingent on a change in ownership or control" (within the meaning of Code Section 280G); (ii) a pro rata reduction of (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from subject to Section 409A as deferred compensation and (B) cash payments not subject to Section 409A of the Code; (iii) a pro rata reduction of (A) employee benefits that are subject to Section 409A as deferred compensation and (B) reduction employee benefits not subject to Section 409A; and (iv) a pro rata cancellation of any other cash payments or benefits otherwise payable to the Executive (A) accelerated vesting equity awards that are exempt from subject to Section 409A of as deferred compensation and (B) equity awards not subject to Section 409A. In the Code, but excluding any payments attributable to any event that acceleration of vesting or payments with respect of equity awards is to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or be cancelled, such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A will be cancelled in the reverse order of the Code; and (D) reduction date of any payments attributable to any acceleration grant of vesting or payments with respect to any a Participant's equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of awards. A nationally recognized standing (“Independent Advisors”) professional services firm selected by the Company, does not constitute a “parachute payment” within the meaning of Company's legal counsel or such other person or entity to which the parties mutually agree (the "Firm") will make any determination required under this Section 280G(b)(2) 5. Such determinations will be made in wilting by the Firm and any good faith determinations of the Code (including Firm will be conclusive and binding upon Participant and the Company. For purposes of making the calculations required by reason this Section 5 the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G(b)(4)(A) Sections 280G and 4999 of the Code) and, . Participant and the Company will furnish to the Firm such information and documents as the Firm may reasonably request in calculating order to make a determination under this Section 5. The Company will bear all costs the Excise Tax, no portion of such Total Payments shall be taken into account which, Firm may incur in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of connection with any calculations contemplated by this Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code5.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in In the event that any payment the post-termination payments and other benefits provided for in the Agreement or benefit received or otherwise payable to be received by the Executive (including any payment or benefit received in connection with a termination of i) constitute “parachute payments” within the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason meaning of Section 280G of the Code in such other planand (ii) but for the Paragraph 19, arrangement or agreement, the cash severance payments under this Agreement shall first would be reduced, and the noncash severance payments hereunder shall thereafter be reduced, subject to the excise tax imposed by Section 4999 of the Code, then Executive’s post-termination payments benefits will be either: (a) delivered in full, or delivered as to such lesser extent necessary so that which would result in no portion of the Total Payments is such post- termination payments or other post-termination benefits being subject to the Excise Tax but only if (i) excise tax under Section 4999 of the net amount Code, whichever of such Total Paymentsthe foregoing amounts, as so reduced (and after subtracting taking into account the net amount of applicable federal, state and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by Executive on such reduced Total Payments and after taking into account an after-tax basis, of the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net greatest amount of such Total Payments without such reduction (but after subtracting the net amount of federalpost-termination payments or benefits, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect notwithstanding that all or some portion of such unreduced Total Payments post-termination payments or benefits may be taxable under Section 4999 of the Code. If a reduction in the severance and after taking into account other benefits constituting “parachute payments” is necessary so that no portion of such post-termination payments or benefits is subject to the phase out excise tax under Section 4999 of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments the Code, the reduction shall be reduced occur in the following order: (Ai) reduction of any cash severance the post-termination payments otherwise payable to the Executive that are exempt from Section 409A of the Codeunder Paragraph 7; (Bii) reduction of any other cash payments or benefits otherwise payable to payments, if any; (iii) cancellation of accelerated vesting of equity awards; and (iv) reduction of continued employee benefits. In the Executive event that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any of equity award that are exempt from Section 409A compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the Code; (C) reduction date of any other payments grant of Executive’s equity awards. If two or benefits otherwise payable to Employee more equity awards are granted on the same date, each award will be reduced on a pro-rata basis or such other manner that complies with Section 409A of basis. In no event shall the Code, but excluding Executive have any payments attributable to any acceleration of vesting and payments discretion with respect to any equity award that are exempt from Section 409A the ordering of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in timepayment reductions. (b) Unless the Company and Executive otherwise agree in writing, any determination required under the Paragraph 19 will be made in writing by an independent firm immediately prior to Change of Control (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of determining whether and making the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected calculations required by the CompanyParagraph 19, does not constitute a “parachute payment” within the meaning Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) Sections 280G and 4999 of the Code) and, . The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in calculating order to make a determination. The Company will bear all costs the Excise Tax, no portion of such Total Payments shall be taken into account which, Firm may reasonably incur in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of connection with any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined calculations contemplated by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the CodeParagraph 19.

Limitation on Payments. (a) Notwithstanding The Employee shall bear all expense of, and be solely responsible for, all Federal, state, local or foreign taxes due with respect to any other provision payment received by or in respect of the Employee under this Agreement, in including any excise tax imposed by Section 4999 of the event Code (the “Excise Tax”); provided, however, that any payment or benefit received or to be received by the Executive (including any payment or benefit received Employee in connection with a Change in Control or termination of the Executive’s employment, whether pursuant to payable under the terms of this Agreement or any other plan, arrangement or agreement) agreement with the Company or an Affiliate (all such payments and benefitscollectively, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to that would constitute a “parachute payment” within the excise tax imposed under meaning of Section 4999 280G of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, reduced to the extent necessary so that no portion of the Total Payments is thereof shall be subject to the Excise Tax Tax, but only if if, by reason of such reduction, the “net after-tax benefit” (ias defined below) received by the Employee shall exceed the net amount of such Total Payments, as so reduced (and after subtracting after-tax benefit that would be received by the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without Employee if no such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in timewas made. (b) For purposes of determining whether and this Agreement, the extent to which the Total Payments will be subject to the Excise Tax, “net after-tax benefit” shall mean (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not Employee receives or is then entitled to receive from the Company or its Affiliates that would constitute a “paymentparachute payments” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) 280G of the Code, less (ii) the amount of all Federal, state and local income and employment taxes payable by the Employee with respect to the foregoing, calculated at the highest marginal income tax rate for each year in excess which the foregoing shall be paid to the Employee (based on the rate in effect for such year as set forth in the Code as in effect at the time of the Base Amount (as defined in Section 280G(b)(3) first payment of the Code) allocable to such reasonable compensation; and foregoing), less (iii) the value amount of Excise Tax imposed with respect to the payments and benefits described in clause (i) above. (c) All determinations under this Section 9 shall be made by an accounting firm that is selected for this purpose by the Board prior to the Change in Control (the “280G Firm”). All fees and expenses of the 280G Firm shall be borne by the Company. The Company shall direct the 280G Firm to submit any non cash benefit determination it makes under this Section 9 and detailed supporting calculations to both the Employee and the Company as soon as reasonably practicable. (d) If the 280G Firm determines that one or any deferred payment or benefit included in more reductions are required under Section 9, the Total 280G Firm shall also determine which Payments shall be determined reduced (first from cash payments and then from non-cash benefits) to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) Section 4999 of the Code, and the Company shall pay such reduced amount to the Employee. The 280G Firm shall make reductions required under this Section 9 in a manner that maximizes the net after-tax amount payable to the Employee. As a result of the uncertainty in the application of Section 280G at the time that the 280G Firm makes its determinations under this Section 9, it is possible that amounts shall have been paid or distributed to the Employee that should not have been paid or distributed (collectively, the “Overpayments”), or that additional amounts should be paid or distributed to the Employee (collectively, the “Underpayments”). If the 280G Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or the Employee, which assertion the 280G Firm believes has a high probability of success, or controlling precedent or substantial authority, that an Overpayment has been made, the Employee shall promptly repay to the Company, without interest, an amount equal to such Overpayment; provided, however, that no loan shall be deemed to have been made and no amount shall be payable by the Employee to the Company unless, and then only to the extent that, the deemed loan and payment would either reduce the amount on which the Employee is subject to tax under Section 4999 of the Code or generate a refund of tax imposed under Section 4999 of the Code. If the 280G Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the 280G Firm shall notify the Employee and the Company of such determination and the Company shall promptly pay the amount of such Underpayment to the Employee. (e) The parties shall provide the 280G Firm access to and copies of any books, records, and documents in their possession as reasonably requested by the 280G Firm, and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 9.

Limitation on Payments. (a) Notwithstanding any other provision of Anything in this AgreementAgreement to the contrary notwithstanding, in the event if it is determined that any payment or distribution by Conn’s to or for the benefit received or to be received by of the Executive (including any payment whether paid or benefit received in connection with a termination of the Executive’s employment, whether payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any other plan, arrangement or agreementadditional payments required under this Section 5) (all such payments and benefits, including the payments and benefits under Section 4 5 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under by Section 4999 of the Internal Revenue Code of 1986or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, as amended (the “Code”) (together with any such interest and penalties, collectively the “Excise Tax”), then, after taking into account any reduction in then the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first will be reduced, and in the noncash severance payments hereunder shall thereafter be reducedorder specified in Section 5(b), to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). . (b) The Total Payments shall will be reduced in the following order: (Ai) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (Bii) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (Ciii) reduction of any other payments or benefits otherwise payable to Employee the Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (Div) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (bc) For purposes Subject to the provisions of determining Section 5(d) hereof, all determinations required to be made under this Section 5, including whether and the extent to which the when Total Payments should be reduced, the amount of such Total Payments, Excise Taxes and all other related determinations, as well as all assumptions to be utilized in arriving at such determinations, will be made by a nationally recognized certified public accounting firm as may be designated by Conn’s, subject to Executive’s approval which will not be unreasonably withheld (the Excise Tax, (i) no portion “Accounting Firm”). All fees and expenses of the Total Payments Accounting Firm will be borne solely by Conn’s. Any determination by the receipt or enjoyment Accounting Firm will be binding upon Conn’s and the Executive. (d) As a result of which uncertainty in the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning application of Section 280G(b) 280G and Section 4999 of the Code shall be taken into account; (ii) no portion at the time of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected initial calculation by the CompanyAccounting Firm hereunder, does not constitute a it is possible that the cash severance payment made by Conn’s will have been less than Conn’s should have paid pursuant to Section 5 hereof (the amount of any such deficiency, the “parachute payment” within Underpayment”), or more than Conn’s should have paid pursuant to Section 5 hereof (the meaning amount of Section 280G(b)(2) any such overage, the “Overpayment”). In the event of an Underpayment, Conn’s will pay the Executive the amount of such Underpayment (together with interest at 120% of the Code (including by reason of rate provided in Section 280G(b)(4)(A1274(b)(2)(B) of the Code) and, in calculating not later than five business days after the Excise Tax, no portion amount of such Total Payments shall Underpayment is subsequently determined, provided, however, such Underpayment will not be taken into account whichpaid later than the end of the calendar year following the calendar year in which the Executive remitted the related taxes. In the event of an Overpayment, the amount of such Overpayment will be paid to Conn’s by the Executive not later than five business days after the amount of such Overpayment is subsequently determined (together with interest at 120% of the rate provided in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B1274(b)(2)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code).

Limitation on Payments. (a) Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) agreement (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) ), would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement Total Payments shall first be reduced, and the noncash severance payments hereunder shall thereafter be reducedreduced as set forth herein, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) if, by reason of such reduction, the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; , (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding (C) reduction of any payments attributable to any the acceleration of vesting or payments payment with respect to any equity award stock options that are exempt from Section 409A of the Code; , (CD) reduction of any payments attributable to the acceleration of vesting or payment with respect to any equity award (other than stock options) that is exempt from Section 409A of the Code, and (E) reduction of any other payments or benefits otherwise payable to Employee Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable in each case, (x) only to any acceleration of vesting and payments with respect the least extent necessary so that no portion thereof shall be subject to any equity award the Excise Tax, (y) in a manner that are exempt from Section 409A of results in the Code; best economic benefit to Executive, and (Dz) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Codeextent economically equivalent, in each case beginning with payments that would otherwise be made last in time. (b) a pro rata manner. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing the Accounting Firm (“Independent Advisors”) selected by the Companyas defined below), does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisorsthe Accounting Firm, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors Accounting Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. All determinations required to be made under this Section 20 will be made by an independent nationally recognized accounting firm (the “Accounting Firm”) selected by Executive and reasonably acceptable to the Company. The Accounting Firm will be directed to submit its determination and detailed supporting calculations to both Executive and the Company within fifteen (15) days after notification from either the Company or Executive that Executive may receive payments which may be “parachute payments.” Executive and the Company will each provide the Accounting Firm access to and copies of any books, records, and documents in their possession as may be reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 20. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 20 will be borne by the Company.” 5. This Second Amendment shall be and is hereby incorporated in and forms a part of the Employment Agreement. 6. Except as amended and set forth herein, the Employment Agreement shall continue in full force and effect.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity LA\2082089.3 award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreementagreement, in the event that any payment it shall be determined that the aggregate payments or benefit received or to be received distributions by the Executive (including any payment Companies to or for the benefit received in connection with a termination of the Executive’s employment, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement agreement, the RSA Agreements or any other plan, arrangement or agreement) otherwise (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to constitute “excess parachute payments” within the excise tax imposed under meaning of Section 4999 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and any regulations thereunder, (collectively, “Section 280G”)) that would be subject to the excise tax imposed by Section 4999 of the Code or any successor provision (collectively, “Section 4999”) or any interest or penalties with respect to such excise tax (the total excise tax, together with any interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)), thenthen the Payments shall be either (i) delivered in full, after taking into account any reduction or (ii) delivered to such lesser extent that would result in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is being subject to the Excise Tax but only if (i) Tax, whichever of the net amount of such Total Paymentsforegoing amounts, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out applicable Federal, state or local income and employment taxes and the Excise Tax, results in the receipt by the Executive, on an after-tax basis, of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net greatest amount of such Total Payments without such reduction (but after subtracting the net amount of federalbenefits, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect notwithstanding that all or some portion of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will may be subject to the Excise Tax. In the event that the Payments are to be reduced pursuant to this Paragraph 10(l), (i) no portion such Payments shall be reduced such that the reduction of the Total Payments the receipt or enjoyment of which compensation to be provided to the Executive shall have waived at such time and as a result of this Paragraph 10(l) is minimized. In applying this principle, the reduction in such manner as not amounts or benefits subject to constitute a “payment” within the meaning of Section 280G(b) 409A of the Code shall be taken into account; (ii) no portion of made in a manner consistent with the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning requirements of Section 280G(b)(2) 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis (including by reason of Section 280G(b)(4)(A) of the Code) andbut not below zero). The reduction, if any, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit other amounts or any deferred payment or benefit included in the Total Payments benefits shall be determined by the Independent Advisors in accordance with any applicable legal requirements. All calculations required pursuant to this Paragraph 10(l) shall be performed in good faith by nationally recognized registered public accountants or tax counsel selected and paid for by the principles Companies. Further, the Companies, as authorized by the Compensation Committee of Sections 280G(d)(3CSGS, and the Executive agree that this Paragraph 10(l) is expressly intended to, and (4hereby does, modify and amend Section 15(d) of the Codeeach RSA Agreement dated July 19, 2010, to delete Section 15(d) from each RSA Agreement.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in In the event that any payment the severance and other benefits provided for in this Plan or benefit received or otherwise payable to be received by a Participant (i) constitute “parachute payments” within the Executive (including any payment or benefit received in connection with a termination meaning of Section 280G of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) Code (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total 280G Payments”), and (ii) but for this Section 5, would be subject (in whole or part), to the excise tax imposed under by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in then the Total Payments provided by reason of Section 280G of the Code Payments will be either: (a) delivered in full, or (b) delivered as to such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the lesser extent necessary so that which would result in no portion of the Total Payments is such benefits being subject to the Excise Tax but only if (i) Tax, whichever of the net amount of such Total Paymentsforegoing amounts, as so reduced (and after subtracting taking into account the net amount of applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Participant on such reduced Total Payments and after taking into account an after-tax basis, of the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net greatest amount of such Total Payments without such reduction (but after subtracting the net amount of federalbenefits, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect notwithstanding that all or some portion of such unreduced Total benefits may be taxable under Section 4999 of the Code. If a reduction in the 280G Payments and after taking into account is necessary so that no portion of such benefits are subject to the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced Excise Tax, reduction will occur in the following order: (i) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G); (ii) a pro rata reduction of (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from subject to Section 409A as deferred compensation and (B) cash payments not subject to Section 409A of the Code; (iii) a pro rata reduction of (A) employee benefits that are subject to Section 409A as deferred compensation and (B) reduction employee benefits not subject to Section 409A; and (iv) a pro rata cancellation of (A) accelerated vesting equity awards that are subject to Section 409A as deferred compensation and (B) equity awards not subject to Section 409A. In the event that acceleration of vesting of equity awards is to be cancelled, such acceleration of vesting will be cancelled in the reverse order of the date of grant of a Participant’s equity awards. Unless Participant and the Company otherwise agree in writing, any other cash payments or benefits otherwise payable determination required under this Section 5 will be made in writing by the Company’s independent public accountants immediately prior to the Executive that are exempt from Change in Control or such other person or entity to which the parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Participant and the Company. For purposes of making the calculations required by this Section 409A 5 the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether . Participant and the extent to which the Total Payments Company will be subject furnish to the Excise Tax, (i) no portion of Firm such information and documents as the Total Payments Firm may reasonably request in order to make a determination under this Section 5. The Company will bear all costs the receipt or enjoyment of which the Executive shall have waived at such time and Firm may incur in such manner as not to constitute a “payment” within the meaning of connection with any calculations contemplated by this Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.5. -7-

Limitation on Payments. (a) Notwithstanding any other provision None of the payments provided by this AgreementAgreement are intended to be contingent upon a change in control event as described in Section 280G of the Code. However, in the unlikely event that the Company concludes, based upon the advice of counsel, that any payment or benefit received hereunder or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute constitutes a “parachute payment” within the meaning of (as defined in Section 280G(b)(2) of the Code (including by reason Code), and the net after-tax amount of Section 280G(b)(4)(A) of any such parachute payment is less than the Code) and, in calculating net after-tax amount if the Excise Tax, no portion of such Total Payments shall aggregate payments and benefits to be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount made to Executive were three times Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code), less $1.00, then the aggregate of the amounts constituting the parachute payments shall be reduced to an amount equal to three times Executive’s base amount, less $1.00, and the following provisions of this Section 7 shall apply : (a) allocable The For purposes of determining the “net after-tax amount,” the Company will cause to be taken into account all applicable federal, state and local income and employment taxes and the excise taxes (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such reasonable compensationstate and local taxes). If a reduction pursuant to this Section 7 is to occur, Executive will have no rights to any additional payments and/or benefits that are being reduced, and (y) reduction in payments and/or benefits will occur in the following order: (i) reduction of cash payments, if any, which shall occur in reverse chronological order such that the cash payment owed on the latest date following the occurrence of the event triggering such excise tax will be the first cash payment to be reduced; and (iiiii) reduction of other benefits, if any, paid to Executive, which shall occur in reverse chronological order such that the value benefit owed on the latest date following the occurrence of the event triggering such excise tax will be the first benefit to be reduced. Notwithstanding, any non cash benefit or excise tax imposed will be solely the responsibility of Executive. Notwithstanding the foregoing, to the extent the Company submits any deferred payment or benefit included otherwise payable to Executive under this Agreement or otherwise to the Company’s stockholders for approval in accordance with Treasury Regulation Section 1.280G-1 Q&A 7, the Total Payments shall and such payments and benefits will be determined by the Independent Advisors treated in accordance with the principles results of such vote, the foregoing provisions shall not apply following such submission and such payments and benefits will be treated in accordance with the results of such vote, except that any reduction in, or waiver of, such payments or benefits required by such vote will be applied without any application of discretion by the Participant and in the order prescribed by this Section 7. In no event shall the Participant have any discretion with respect to the ordering of Executive’s payment reductions. (b) Unless the Company and Executive otherwise agree in writing, any determination required under this Section 7 will be made in writing by a nationally recognized firm of independent public accountants selected by the Company, the Company’s legal counsel or such other person or entity to which the Parties mutually agree (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 7, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G(d)(3) 280G and (4) 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section 7.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in In the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received severance and other benefits provided for in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreementotherwise payable to Executive (i) (all such payments and benefits, including constitute “parachute payments” within the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason meaning of Section 280G of the Code in such other planand (ii) but for this Section 4, arrangement or agreement, the cash severance payments under this Agreement shall first would be reduced, and the noncash severance payments hereunder shall thereafter be reduced, subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under Section 4(a)(i) will be either: (a) delivered in full, or (b) delivered as to such lesser extent necessary so that which would result in no portion of the Total Payments is such severance benefits being subject to excise tax under Section 4999 of the Excise Tax but only if (i) Code, whichever of the net amount of such Total Paymentsforegoing amounts, as so reduced (and after subtracting taking into account the net amount of applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on such reduced Total Payments and after taking into account an after-tax basis, of the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net greatest amount of such Total Payments without such reduction (but after subtracting the net amount of federalseverance benefits, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect notwithstanding that all or some portion of such unreduced Total Payments severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and after taking into account other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, the phase out of itemized deductions payments and personal exemptions attributable to such unreduced Total Payments). The Total Payments benefits shall be reduced in the following order: (A) a pro rata reduction of any (i) cash severance payments otherwise payable to the Executive that are exempt from subject to Section 409A as deferred compensation and (ii) cash payments not subject to Section 409A of the Code; (B) a pro rata cancellation of (i) accelerated vesting of stock and other equity-based awards that are subject to Section 409A of the Code as deferred compensation and (ii) stock and other equity-based awards not subject to Section 409A; and (C) a pro rata reduction of any other cash payments or (i) employee benefits otherwise payable to the Executive that are exempt from subject to Section 409A as deferred compensation and (ii) employee benefits not subject to Section 409A of the Code, but excluding any payments attributable to any . In the event that acceleration of vesting or payments with respect to any of equity award that are exempt from compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 409A 4 will be made in writing by an independent firm immediately prior to Change of Control (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 4, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting . The Company and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments Executive will be subject furnish to the Excise Tax, (i) no portion of Firm such information and documents as the Total Payments Firm may reasonably request in order to make a determination under this Section. The Company will bear all costs the receipt or enjoyment of which the Executive shall have waived at such time and Firm may reasonably incur in such manner as not to constitute a “payment” within the meaning of connection with any calculations contemplated by this Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) 7.1 Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof5 and Section 6 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash non-cash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and Exhibit 10.1 personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; , (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments payment attributable to any the acceleration of vesting or payments payment with respect to any stock option or other equity award with respect to the Company’s common stock that are exempt from Section 409A of the Code; , (C) reduction of any other payments or benefits otherwise payable to Employee Executive on a pro-pro rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments payment attributable to any the acceleration of vesting and payments payment with respect to any stock option or other equity award with respect to the Company's common stock that are exempt from Section 409A of the Code; , and (D) reduction of any payments attributable to any the acceleration of vesting or payments payment with respect to any stock option or other equity award with respect to the Company’s common stock that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) 7.2 For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of an accounting firm or compensation consulting firm with nationally recognized standing and substantial expertise and experience on Section 280G matters (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) A. Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 10 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash non-cash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax Tax, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) ), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; , (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any the acceleration of vesting or payments with respect to any stock option or other equity award with respect to the Company’s Common Stock that are exempt from Section 409A of the Code; , (C) reduction of any other payments or benefits otherwise payable to Employee Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any the acceleration of vesting and payments with respect to any stock option or other equity award with respect to the Company’s Common Stock that are exempt from Section 409A of the Code; , and (D) reduction of any payments attributable to any the acceleration of vesting or payments with respect to any stock option or other equity award with respect to the Company’s Common Stock that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) B. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in In the event that any payment or benefit received pursuant to this Agreement or to be received by the otherwise that Executive (including any payment or benefit received would receive in connection with a termination change in control or ownership of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) Company (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the a “Total PaymentsTransaction Payment”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”a) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2280G of the Code, and (b) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (including by reason of Section 280G(b)(4)(Athe “Excise Tax”), then the Company shall cause the following: (i) payment in full of the Codeentire amount of the Transaction Payments (a “Full Payment”), or (ii) andpayment of only a part of the Transaction Payments so that Executive receives the largest payment possible without the imposition of the Excise Tax (a “Reduced Payment”), whichever amount results in calculating Executive’s receipt, on an after-tax basis, of the greater amount of the Transaction Payment notwithstanding that all or some portion of the Transaction Payment may be subject to the Excise Tax. For purposes of determining whether to make a Full Payment or a Reduced Payment, no portion of such Total Payments the Company shall cause to be taken into account whichall applicable federal, state and local income and employment taxes and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes). If a Reduced Payment is made, (x) the Transaction Payment shall be paid only to the extent permitted under the Reduced Payment alternative, and Executive shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the opinion following order: (1) reduction of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning cash payments (if any); (2) cancellation of Section 280G(b)(4)(Baccelerated vesting of equity awards other than stock options; (3) cancellation of the Code, in excess accelerated vesting of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensationstock options; and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) reduction of other benefits (if any) paid to Executive; provided that in each case, the reduction of payments and benefits shall be implemented in a manner that does not violate Section 409A of the Code. In the event that acceleration from Executive’s equity awards is to be reduced, such acceleration of vesting shall be canceled in the reverse order of the date of grant. The Company shall appoint a nationally recognized independent registered public accounting firm, executive compensation consulting firm, or law firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations required to be made hereunder. The firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within fifteen (15) calendar days after the date on which Executive’s right to a Transaction 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. If firm determines that no Excise Tax is payable with respect to the Transaction Payments, either before or after the application of the Reduced Amount, it shall furnish the Company with an opinion reasonably acceptable to the Company that no Excise Tax will be imposed with respect to such Transaction Payments. Any good faith determinations of the firm made hereunder shall be final, binding and conclusive upon Executive.

Limitation on Payments. (a) Notwithstanding any other provision provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the termination of the Executive’s employment's employment with the Company, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement Total Payments shall first be reduced, and reduced in the noncash severance payments hereunder shall thereafter be reducedorder specified below, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; , other than payments that are subject to Q/A 24(c) of Treas. Reg. Sec. 1.280G)-1, (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any other than payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A subject to Q/A 24(c) of the Code; Treas. Reg. Sec. 1.280G)-1, (C) reduction of any other payments or benefits otherwise payable to Employee the Executive, other than payments that are subject to Q/A 24(c) of Treas. Reg. Sec. 1.280G)1 and (D) reduction of any payments that are subject to Q/A 24(c) of Treas. Reg. Sec. 1.280G). The reduction of any payments that are subject to Section 409A of the Code shall be made on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in time. (b) All determinations required to be made under this Section 2.8 shall be made by the Company's regular outside independent public accounting firm (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Effective Date of Termination, if applicable, or such earlier time as is requested by the Company (c) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; , (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, Accounting Firm does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent AdvisorsAccounting Firm, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; , and (iii) the value of any non non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors Accounting Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in In the event that any payment the post-termination payments and other benefits provided for in the Agreement or benefit received or otherwise payable to be received by the Executive (including any payment or benefit received in connection with a termination of i) constitute “parachute payments” within the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason meaning of Section 280G of the Code in such other planand (ii) but for this Paragraph 19, arrangement or agreement, the cash severance payments under this Agreement shall first would be reduced, and the noncash severance payments hereunder shall thereafter be reduced, subject to the excise tax imposed by Section 4999 of the Code, then Executive’s post-termination payments benefits will be either: (a) delivered in full, or delivered as to such lesser extent necessary so that which would result in no portion of the Total Payments is such post-termination payments or other post-termination benefits being subject to the Excise Tax but only if (i) excise tax under Section 4999 of the net amount Code, whichever of such Total Paymentsthe foregoing amounts, as so reduced (and after subtracting taking into account the net amount of applicable federal, state and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by Executive on such reduced Total Payments and after taking into account an after-tax basis, of the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net greatest amount of such Total Payments without such reduction (but after subtracting the net amount of federalpost-termination payments or benefits, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect notwithstanding that all or some portion of such unreduced Total Payments post-termination payments or benefits may be taxable under Section 4999 of the Code. If a reduction in the severance and after taking into account other benefits constituting “parachute payments” is necessary so that no portion of such post-termination payments or benefits is subject to the phase out excise tax under Section 4999 of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments the Code, the reduction shall be reduced occur in the following order: (Ai) reduction of any cash severance the post-termination payments otherwise payable to the Executive that are exempt from Section 409A of the Codeunder Paragraph 7; (Bii) reduction of any other cash payments or benefits otherwise payable to payments, if any; (iii) cancellation of accelerated vesting of equity awards; and (iv) reduction of continued employee benefits. In the Executive event that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any of equity award that are exempt from Section 409A compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the Code; (C) reduction date of any other payments grant of Executive’s equity awards. If two or benefits otherwise payable to Employee more equity awards are granted on the same date, each award will be reduced on a pro-rata basis or such other manner that complies with Section 409A of basis. In no event shall the Code, but excluding Executive have any payments attributable to any acceleration of vesting and payments discretion with respect to any equity award that are exempt from Section 409A the ordering of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in timepayment reductions. (b) Unless the Company and Executive otherwise agree in writing, any determination required under this Paragraph 19 will be made in writing by an independent firm immediately prior to Change of Control (the “Firm”), whose determination will be conclusive and binding upon Executive and the Company. For purposes of determining whether and making the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected calculations required by the CompanyParagraph 19, does not constitute a “parachute payment” within the meaning Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) Sections 280G and 4999 of the Code) and, . The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in calculating order to make a determination. The Company will bear all costs the Excise Tax, no portion of such Total Payments shall be taken into account which, Firm may reasonably incur in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of connection with any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined calculations contemplated by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the CodeParagraph 19.

Limitation on Payments. (a) Notwithstanding any other provision of this Agreement, in In the event that Jackson shall become entitled to the payments and/or benefits providex xx Xxction 9(c) or any payment or benefit received or to be received by the Executive other amounts (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreementagreement with the Company, any person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person) as a result of a change of ownership or effective control (all collectively the "COMPANY PAYMENTS"), and such payments and benefits, including the payments and benefits under Section 4 hereof, being hereinafter referred to as the “Total Payments”) would Company Payments will be subject (in whole or part), to the excise tax (the "EXCISE TAX") imposed under by Section 4999 of the Internal Revenue Code of 1986, as amended (and any similar tax that may hereafter be imposed) the Company shall pay to Jackson at the time specified in subsection (d) below an additional axxxxx (the “Code”"GROSS-UP PAYMENT") (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount retained by Jackson, after deduction of such Total Payments, as so reduced (any Excise Tax on the Company Payments and after subtracting the net amount of any federal, state state, and local income taxes on such reduced Total Payments and after taking into account or payroll tax upon the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to Gross-up Payment provided for by this paragraph (ii) the net amount of such Total Payments without such reduction (a), but after subtracting the net amount of before deduction for any federal, state state, and local income taxes or payroll tax on the Company Payments, shall be equal to the Company Payments. Notwithstanding the foregoing provisions of this Section 10 to the contrary, if it shall be determined that Jackson is entitled to a Gross-up Payment, but the Company Payments dx xxx xxceed one hundred five percent (105%) of the greatest amount that could be paid to Jackson such Total that the receipt of Company Payments would not give rise xx xxx Excise Tax (the "REDUCED AMOUNT"), then no Gross-up Payment shall be made to Jackson and the amount of Excise Tax to which Company Payments, in the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Total Payments aggregate, shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A of the Code; (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code; (C) reduction of any other payments or benefits otherwise payable to Employee on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payments attributable to any acceleration of vesting and payments with respect to any equity award that are exempt from Section 409A of the Code; and (D) reduction of any payments attributable to any acceleration of vesting or payments with respect to any equity award that are exempt from Section 409A of the Code, in each case beginning with payments that would otherwise be made last in timexx xxx Reduced Amount. (b) For purposes of determining whether any of the Company Payments and Gross-up Payments (collectively the extent to which the Total Payments "TOTAL PAYMENTS") will be subject to the Excise Tax and determining the amount of such Excise Tax, : (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent auditors of nationally recognized standing (“Independent Advisors”) selected by the Company, does not constitute a “treated as "parachute payment” payments" within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, and all "parachute payments" in excess of the Base Amount "base amount" (as defined in under Section 280G(b)(3) of the Code) allocable shall be treated as subject to the Excise Tax, unless and except to the extent that, in the opinion of the Company's independent certified public accountants appointed prior to any change in ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel selected by such accountants (the "ACCOUNTANTS") such Total Payments (in whole or in part), (A) do not constitute "parachute payments," (B) represent reasonable compensationcompensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code or (C) are otherwise not subject to the Excise Tax; and (iiiii) the value of any non non-cash benefit benefits or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors Accountants in accordance with the principles of Sections 280G(d)(3Section 280G of the Code. (c) For purposes of determining the amount of the Gross-up Payment, Jackson shall be deemed to pay federal income taxes at the highest maxxxxxx rate of federal income taxation in the calendar year in which the Gross-up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Jackson's residence for the calendar year in which the Company Paymenx xx xx xe made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. In the event that the Excise Tax is subsequently determined by the Accountants to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Jackson shall repay to the Company, at the time that the amount of suxx xxxxction in Excise Tax is finally determined, the portion of the prior Gross-up Payment attributable to such reduction (4plus the portion of the Gross-up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the portion of the Gross-up Payment being repaid by Jackson if such repayment results in a reduction in Excise Tax or a fxxxxxx, state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event any portion of the Gross-up Payment to be refunded to the Company has been paid to any federal, state and local tax authority, repayment thereof (and related amounts) shall not be required until actual refund or credit of such portion has been made to Jackson, and interest payable to the Company shall not exceed the intxxxxx xeceived or credited to Jackson by such tax authority for the period it held such portion. Jaxxxxx xnd the Company shall mutually agree upon the course of actiox xx xx pursued (and the method of allocating the expense thereof) if Jackson's claim for refund or credit is denied. In the event that the Excise Tax is later determined by the Accountants or the Internal Revenue Service to exceed the amount taken into account hereunder at the time the Gross-up Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest or penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. (d) The Gross-up Payment or portion thereof provided for in subsection (c) above shall be paid not later than the thirtieth (30th) day following an event occurring which subjects Jackson to the Excise Tax; provided, however, that if the amount of sxxx Xxxss-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Jackson on such day an estimate, as determined in good faith by the Axxxxxxxnts, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to subsection (c) hereof, as soon as the amount thereof can reasonably be determined, but in no event later than the ninetieth (90th) day after the occurrence of the event subjecting Jackson to the Excise Tax. In the event that the amount of the estimaxxx xxxments exceeds the amount subsequently determined to have been due, such excess shall constitute an advance by the Company to Jackson, payable on the fifth (5th) day after demand by the Company (xxxxxxxr with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (e) In the event of any controversy with the Internal Revenue Service (or other taxing authority) under this Section 10, Jackson shall permit the Company to control issues related to this Sexxxxx 00 (at its expense), provided that such issues do not potentially materially adversely affect Jackson, but Jackson shall control any other issues. In the event the xxxxxx are ixxxxxxxated, Jackson and the Company shall in good faith cooperate so as not to jexxxxxxxe resolution of either issue, but if the parties cannot agree, Jackson shall make the final determination with regard to the issues. Xx xxx event of any conference with any taxing authority as to the Excise Tax or associated income taxes, Jackson shall permit the representative of the Company to accompany hxx, xxx Jackson and his representative shall cooperate with the Company and ixx xxxxesentative. (f) The Company shall be responsible for all charges of the Accountants. (g) Nothing in this Section is intended to violate the Sarbanes-Oxley Act and to the extent that any advance or repayment obxxxxxxxx xxxxxnder would do so, such obligation shall be modified so as to make the advance a nonrefundable payment to Jackson and the repayment obligation null and void.