Common use of Limitation on Payments Clause in Contracts

Limitation on Payments. In the event that the payments and other benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable to Employee shall be either delivered in full (without the Company paying any portion of the Excise Tax), or delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. (a) In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) but for this Section 9, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s payments and any post-termination severance benefits payable under this Agreement or otherwise payable to Employee shall will be either either: (i) delivered in full full, or (without the Company paying any portion of the Excise Tax), or ii) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject be taxable under Section 4999 of the Code. (b) If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the Excise Tax. following order: (i) reduction of cash payments; (ii) cancellation of accelerated vesting of equity awards (by cutting back performance-based awards first and then time-based awards, based on reverse order of vesting dates (rather than grant dates)), if applicable; and (iii) reduction of employee benefits. (c) Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 9 will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated accountants or by agreement between Employee and Company such other person or entity to which the Parties mutually agree (the “AccountantsFirm”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposesCompany. For purposes of making the calculations required by this Section 59, the Accountants Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company will bear all costs the Firm may incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 59.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee You (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 6D, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s payments Your severance and other benefits under this Agreement or otherwise payable to Employee shall will be either either: (i) delivered in full (without the Company paying any portion of the Excise Tax)full, or (ii) delivered as to such lesser extent which would result in no portion of such payments severance and other benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee You on an after-tax basis basis, of the greatest amount of payments severance and other benefits, notwithstanding that all or some portion of such payments severance and other benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee You otherwise agree in writing, any determination required under this Section 5 shall 6D will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to Change of Control (the “Accountants”), whose determination shall will be conclusive and binding upon Employee You and the Company for all purposes. For purposes of making the calculations required by this Section 56D, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall You will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company will bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur 6D. In the event the Accountants determine that this Section 6D requires a reduction in Your severance or other benefits, You will be provided the following reasonable opportunity to determine the order as reasonably in which severance and other benefits will be reduced. If You fail to make an appropriate reduction election within the reasonable time period determined by the Accountants: (1) Committee, in its sole discretion, the order of reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5Committee.

Limitation on Payments. In the event that the payments and other benefits provided for in this Agreement or otherwise other payments and benefits payable or provided to Employee the Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 3, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employeethe Executive’s payments and benefits under this Agreement or otherwise payable other payments or benefits (the “Payment”) will be reduced to Employee the Reduced Amount. The “Reduced Amount” shall be either delivered in full (without x) the Company paying any largest portion of the Excise Tax), or delivered as to such lesser extent which Payment that would result in no portion of such payments and benefits the Payment being subject to the Excise TaxTax or (y) the largest portion, up to and including the total, of the Payment, whichever of the foregoing amountsamount, after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the Excise TaxTax (all computed at the highest applicable marginal rate), results in the receipt by Employee Executive’s receipt, on an after-tax basis basis, of the greatest greater amount of payments and benefits, the Payment notwithstanding that all or some portion of such payments and benefits the Payment may be subject to the Excise Tax. Unless If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Company Payment equals the Reduced Amount and Employee otherwise agree in writing, any determination required no portion of such Payment will be subject to the excise tax under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to , the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall will occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2a) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order (that is, the cash payment owed on the latest date following the occurrence of the event triggering the excise tax will be the first cash payment to be reduced); (b) cancellation of equity awards that were granted “contingent on a change in ownership or control” within the meaning of Code Section 280G (if two or more equity awards are granted on the same date, each award will be reduced on a pro- rata basis); (c) reduction of the accelerated vesting of equity awards in the reverse order of date of grant of the awards (i.e., the vesting of the most recently granted equity awards will be cancelled first and if more than one equity award was made to Executive on the same date of grant, all such that awards shall have their acceleration of vesting reduced pro rata); and (d) reduction of employee benefits in reverse chronological order (i.e., the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax excise tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is benefit to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise the Executive have any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5payment reductions.

Limitation on Payments. In (a) If the event that the payments and Change in Control Severance Benefits together with any other benefits provided for payment or benefit Employee would receive pursuant to a Change in this Agreement or otherwise payable to Employee Control (collectively, “Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable such Payment shall be equal to Employee the Reduced Amount. The “Reduced Amount” shall be either delivered in full (without x) the Company paying any largest portion of the Excise Tax), or delivered as to such lesser extent which Payment that would result in no portion of such payments and benefits the Payment being subject to the Excise TaxTax or (y) the largest portion, up to and including the total, of the Payment, whichever of the foregoing amountsamount, after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the Excise TaxTax (all computed at the highest applicable marginal rate), results in the receipt by Employee Employee’s receipt, on an after-tax basis basis, of the greatest greater amount of payments and benefits, the Payment notwithstanding that all or some portion of such payments and benefits the Payment may be subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by lf a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or or benefits required by this Section 5 constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order as reasonably determined by the Accountantsunless Employee elects in writing a different order: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) cancellation of acceleration of vesting; reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time)employee benefits. In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting it shall be cancelled in the reverse order of the date of grant of the Equity Awards unless Employee elects in writing a manner such as to obtain different order for cancellation. (b) The Company may engage the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined accounting firm engaged by the AccountantsCompany for general audit purposes as of the day prior to the effective date of the Change in Control or another firm to perform the foregoing calculations. In no event will Employee exercise any discretion The Company shall bear all expenses with respect to the ordering of any reduction of payments determinations by such firm required to be made hereunder. (c) The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to Employee and the Company within fifteen (15) calendar days after the date on which Employee’s right to a Payment is triggered (if requested at that time by Employee or benefits pursuant to this Section 5the Company) or such other time as requested by Employee or the Company.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then EmployeeExecutive’s payments and benefits under this Agreement or otherwise payable to Employee shall be either (a) delivered in full (without the Company paying any portion of the Excise Tax)full, or (b) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. The payments or benefits subject to any such reduction shall be reduced by Vitesse in its reasonable discretion in the following order: (i) reduction of any payments and benefits may subject otherwise payable to Executive that are exempt from Section 409A of the Excise TaxCode, and (ii) reduction of any other payments and benefits otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined by Vitesse. Unless the Company Vitesse and Employee Executive otherwise agree in writing, any determination required under this Section 5 section shall be made in writing by a nationally-recognized Vitesse’s independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee Executive and the Company Vitesse for all purposes. For purposes of making the calculations required by this Section 5section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company Vitesse and Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5section. Any reduction Vitesse shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5section.

Limitation on Payments. In the event that the payments and other benefits provided for in this Agreement or and otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) but for this Section 6, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments and benefits under this Agreement Section 3 or otherwise payable to Employee shall Executive will be either either: (i) delivered in full (without the Company paying any portion of the Excise Tax)full, or (ii) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject be taxable under Section 4999 of the Code. If a reduction in benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the Excise Taxfollowing order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Section 280G of the Code), (iii) reduction of employee benefits. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 8 will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “AccountantsFirm”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 56, the Accountants Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company will bear all costs the Firm may incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 58.

Limitation on Payments. In (a) If the event that the payments and Change in Control Severance Benefits together with any other benefits provided for payment or benefit Employee would receive pursuant to a Change in this Agreement or otherwise payable to Employee Control (collectively, “Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable such Payment shall be equal to Employee the Reduced Amount. The “Reduced Amount” shall be either delivered in full (without x) the Company paying any largest portion of the Excise Tax), or delivered as to such lesser extent which Payment that would result in no portion of such payments and benefits the Payment being subject to the Excise TaxTax or (y) the largest portion, up to and including the total, of the Payment, whichever of the foregoing amountsamount, after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the Excise TaxTax (all computed at the highest applicable marginal rate), results in the receipt by Employee Employee’s receipt, on an after-tax basis basis, of the greatest greater amount of payments and benefits, the Payment notwithstanding that all or some portion of such payments and benefits the Payment may be subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by If a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or or benefits required by this Section 5 constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) cancellation of acceleration of vesting; reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time)cash employee benefits. In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting it shall be cancelled in a manner the reverse order of the date of grant of the Equity Awards. To the extent any such as benefit is to obtain be provided over time, then the best economic benefit for Employee shall be reduced in reverse chronological order. (with reductions made pro-rata if economically equivalent), as determined b) The Company may engage the accounting firm engaged by the AccountantsCompany for general audit purposes as of the day prior to the effective date of the Change in Control or another firm to perform the foregoing calculations. In no event will Employee exercise any discretion The Company shall bear all expenses with respect to the ordering of any reduction of payments determinations by such firm required to be made hereunder. (c) The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to Employee and the Company within fifteen (15) calendar days after the date on which Employee’s right to a Payment is triggered (if requested at that time by Employee or benefits pursuant to this Section 5the Company) or such other time as requested by Employee or the Company.

Limitation on Payments. In To the event extent that any of the payments and other or benefits provided for in this Agreement or otherwise payable to the Employee (icollectively the “Payments”) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) and, but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable such Payment shall be equal to Employee the Reduced Amount. The “Reduced Amount” shall be either delivered in full (without x) the Company paying any largest portion of the Excise Tax), or delivered as to such lesser extent which Payments that would result in no portion of such payments and benefits the Payments being subject to the Excise TaxTax or (y) the largest portion, up to and including the total, of the Payments, whichever of the foregoing amountsamount, after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the Excise TaxTax (all computed at the highest applicable marginal rate), results in the receipt by Employee Employee’s receipt, on an after-tax basis basis, of the greatest greater amount of payments and benefits, the Payments notwithstanding that all or some portion of such payments and benefits the Payment may be subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by If a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or or benefits required by this Section 5 constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order as reasonably determined by unless the Accountants: Employee elects in writing a different order (1) reduction provided, however, that such election shall be subject to Company approval if made on or after the effective date of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) the event that triggers the Payment): reduction of cash payments; (3) cancellation of accelerated vesting of stock options and restricted stock; reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time)employee benefits. In the event that acceleration of vesting of equity-based awards stock compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Employee’s stock options and restricted stock (i.e., earliest granted stock awards cancelled last) unless the Employee elects in writing a manner such as to obtain the best economic benefit different order for Employee (with reductions made pro-rata if economically equivalent), as determined cancellation. The accounting firm engaged by the AccountantsCompany for general audit purposes as of the day prior to the effective date of the Hostile Takeover or Change of Control shall perform the foregoing calculations. In no event will Employee exercise any discretion If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Hostile Takeover or Change of Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the ordering determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Employee and the Company within fifteen (15) calendar days after the date on which the Employee’s right to a Payment is triggered (if requested at that time by the Employee or the Company) or such other time as requested by the Employee or the Company. If the accounting firm determines that no Excise Tax is payable with respect to the Payments, either before or after the application of any reduction the Reduced Amount, it shall furnish the Employee and the Company with an opinion reasonably acceptable to the Employee that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of payments or benefits pursuant to this Section 5the accounting firm made hereunder shall be final, binding and conclusive upon the Employee and the Company.

Limitation on Payments. In the event that the payments and other benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then Employee’s payments and benefits under this Agreement or otherwise payable to Employee shall be either delivered in full (without the Company paying any portion of the Excise Tax), or delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “"Accountants”"), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “"out-of-the-money” " stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “"out-of-the-money” " stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. In (a) If any payment or benefit Executive will or may receive from the event that the payments and other benefits provided for in this Agreement Company or otherwise payable to Employee (a “280G Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the of the Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable any such 280G Payment (a “Payment”) shall be equal to Employee the Reduced Amount. The “Reduced Amount” shall be either delivered in full (without x) the Company paying any largest portion of the Excise Tax), or delivered as to such lesser extent which Payment that would result in no portion of such payments and benefits the Payment (after reduction) being subject to the Excise TaxTax or (y) the largest portion, up to and including the total, of the Payment, whichever of amount (i.e., the foregoing amountsamount determined by clause (x) or by clause (y)), after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the Excise TaxTax (all computed at the highest applicable marginal rate), results in the receipt by Employee Executive’s receipt, on an after-tax basis basis, of the greatest amount of payments and benefits, greater economic benefit notwithstanding that all or some portion of such payments and benefits the Payment may be subject to the Excise Tax. Unless If a reduction in a Payment is required pursuant to the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee preceding sentence and the Company for all purposes. For purposes Reduced Amount is determined pursuant to clause (x) of making the calculations required by this Section 5preceding sentence, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by manner (the Accountants: (1“Reduction Method”) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata results in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best greatest economic benefit for Employee Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata. (with reductions made pro-rata if economically equivalent)b) Unless Executive and the Company agree on an alternative accounting firm or law firm, as determined the accounting firm engaged by the AccountantsCompany for general tax compliance purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. In no event will Employee exercise any discretion 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 ordering of any reduction of payments determinations by such accounting or benefits 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. (c) If Executive receives a Payment for which the Reduced Amount was determined pursuant to this clause (x) of Section 54(a) and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, Executive agrees to promptly return to the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of Section 4(a) so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) of Section 4(a), Executive shall have no obligation to return any portion of the Payment pursuant to the preceding sentence.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and 's benefits under this Agreement or otherwise payable to Employee shall be either either (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the Excise Taxfollowing order: reduction of cash payments, cancellation of equity awards granted within the twelve (12) month period prior to a “change in control” (as determined under Code Section 280G) that are deemed to have been granted contingent upon the change in control (as determined under Code Section 280G), cancellation of accelerated vesting of equity awards, reduction of employee benefits. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized the Company's independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5Section.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee the Covered Person (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employeethe Covered Person’s payments and severance benefits under this Agreement or otherwise payable to Employee Section 3(a)(i) shall be either either (i) delivered in full full, or (without the Company paying any portion of the Excise Tax), or ii) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee the Covered Person on an after-after tax basis basis, of the greatest amount of severance payments and benefits, notwithstanding that all or some portion of such severance payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee the Covered Person otherwise agree in writing, any determination required under this Section 5 shall be made in writing in good faith by a nationally-recognized the accounting firm serving the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to the Change of Control (the “Accountants”)) in good faith consultation with the Covered Person. In the event of a reduction in benefits hereunder, whose determination such benefits shall be conclusive reduced in the following order: (a) cash payments not subject to Section 409A of the Code; (b) cash payments subject to Section 409A of the Code; (c) equity compensation; and binding upon Employee and (d) non-cash forms of benefit. To the Company for all purposesextent any payment is to be made over time, then the payment shall be reduced in reverse chronological order. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable the application taxes and may rely on reasonable, reasonable good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee the Covered Person shall furnish to the Accountants such information and documents as the Accountants may reasonably reasonable request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then the Employee’s payments and 's severance benefits under this Agreement or otherwise payable to Employee Sections 2(a) and 2(b) shall be either delivered payable either: (a) in full full, or (without the Company paying any portion of the Excise Tax), or delivered b) as to such lesser extent amount which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis basis, of the greatest amount of payments severance benefits under Section 2(a) and benefits2(b), notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 4 shall be made in writing by a nationally-recognized independent public accounting firm designated accountants agreed to by agreement between the Company and the Employee and Company (the “"Accountants”"), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 54, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. In If any payments pursuant to the event that the payments and other benefits provided for in this Agreement or otherwise payable would be subject to Employee (i) constitute “parachute payments” within the meaning of tax under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise TaxPayments”), then Employee’s payments and benefits under this Agreement Executive shall receive either (i) the full Payments or otherwise payable to Employee shall be either delivered in full (without the Company paying any portion ii) such lesser amount of the Excise Tax), or delivered as to such lesser extent Payment which would result in no portion of such payments and benefits Payments being subject to the Excise TaxSection 4999 tax, whichever of yields the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee greatest net amount to Executive on an after-tax basis (applying the then highest aggregate marginal tax rates). If a reduction of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject Payments is required pursuant to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company subpart (the “Accountants”ii), whose determination shall then Executive will be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 permitted to request which component items of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); Payment will be reduced provided, however, that Executive must provide to the Company in writing his/her request within the reasonable time period established by the Company and the Company must in its discretion consent to such request (or else the Company shall make its own determinations with respect to which Payment items are to be reduced). The Company may elect to contest at its expense any non-taxable payments or benefits initial IRS determination with respect to an Executive. Executive shall cooperate reasonably with the Company in any effort by the Company to contest an IRS determination under this paragraph, including by the making of such filings and appeals as the Company may reasonably require, but nothing herein shall be reduced last construed as requiring Executive to bear any cost or expense of such a contest or in accordance with connection therewith to compromise any tax item (including without limitation any deduction or credit) other than the same categorical ordering ruleSection 4999 tax and related interest and penalties, if any, that are the subject of the contested IRS determination. In the event items described in (2) of any underpayment or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent)overpayment under this Agreement, as determined by the Accountants. In no event will Employee exercise any discretion with respect nationally recognized accounting firm, the amount of such underpayment or overpayment shall be promptly paid to Executive or refunded to the ordering Company, as the case may be, with interest at 120% of any reduction the applicable Federal rate provided for in Section 7872(f)(2) of payments or benefits pursuant to the Internal Revenue Code. All tax determinations under this Section 56 shall be made at the Company’s expense by a nationally recognized accounting firm selected by the Company in its reasonable discretion. Any good faith determinations of this accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive.

Limitation on Payments. In the event that the payments and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”) "), and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”or any corresponding provisions of state income tax law), then the Employee’s payments and 's benefits under this Agreement or otherwise payable to Employee Section 3(a) shall be either either (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis tax-basis, of the greatest greater amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized the Company's independent public accounting firm designated by agreement between Employee and Company accountants (the “"Accountants”"), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time)5. In the event that acceleration of vesting of equity-based awards is to be reducedsubsection (a) above applies, such acceleration of vesting then Employee shall be cancelled in a manner such as to obtain the best economic benefit responsible for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion excise taxes imposed with respect to such benefits. In the ordering event that subsection (b) above applies, then each benefit provided hereunder shall be proportionately reduced to the extent necessary to avoid imposition of any reduction of payments or benefits pursuant to this Section 5such excise taxes.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 4, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments and severance benefits under this Agreement or otherwise payable to Employee shall Section 2 will be either either: (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and severance benefits, notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 4 will be made in writing by a nationally-recognized the Company’s independent public accountants immediately prior to a Change in Control or a “Big Four” national accounting firm designated selected by agreement between Employee and the Company (the “Accountants”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposespurposes in the absence of manifest error. The Accountants shall provide Executive with a written report of its determinations hereunder, including reasonably detailed supporting calculations.. For purposes of making the calculations required by this Section 54, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 54. Any reduction in payments and/or benefits required by this Section 5 4 shall occur in a manner necessary to provide Executive with the following order as reasonably determined by the Accountants: (1) greatest economic benefit. If more than one manner of reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits yields the greatest economic benefit, the payments and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountantspro rata. In no event will Employee Executive exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 54.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee the Covered Person (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employeethe Covered Person’s payments and severance benefits under this Agreement or otherwise payable to Employee Section 3(a)(i) shall be either either (i) delivered in full full, or (without the Company paying any portion of the Excise Tax), or ii) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee the Covered Person on an after-after tax basis basis, of the greatest amount of severance payments and benefits, notwithstanding that all or some portion of such severance payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee the Covered Person otherwise agree in writing, any determination required under this Section 5 shall be made in writing in good faith by a nationally-recognized the accounting firm serving as the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to the Change of Control (the “Accountants”) in good faith consultation with the Covered Person. In the event of a reduction in benefits hereunder, unless the Covered Person provides direction otherwise (which alternative direction shall be subject to the Company’s consent, which shall not be unreasonably withheld), whose determination such benefits shall be conclusive reduced in the following order: (a) cash payments not subject to Section 409A of the Code; (b) cash payments subject to Section 409A of the Code; (c) equity compensation; and binding upon Employee and (d) non-cash forms of benefit. To the Company for all purposesextent any payment is to be made over time, then the payment shall be reduced in reverse chronological order. For purposes of making the calculations required by this Section 5, the Accountants Accountants, in consultation with the Covered Person, may make reasonable assumptions and approximations concerning the applicable taxes and may rely on reasonable, reasonable good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee the Covered Person shall furnish to the Accountants such information and documents as the Accountants may reasonably reasonable request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. In If upon or following a Change of Control the event that the payments and other benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) would be subject to the excise tax imposed by Section 4999 of the Code Code, or any similar or successor tax, (the “Excise Tax”) would apply absent this Section 5.01(e), because of the Change of Control, to any payments, benefits and/or amounts received by Executive as severance benefits or otherwise, including, without limitation, any amounts received or deemed received, within the meaning of any provision of the Code, by Executive as a result of (and not by way of limitation) any automatic vesting, lapse of restrictions and/or accelerated target or performance achievement provisions, or otherwise, applicable to outstanding grants or awards to Executive under any of the Company’s equity incentive plans or agreements (collectively, the “Total Payments”), then EmployeeExecutive’s payments and benefits under this Agreement or otherwise payable to Employee shall be either (a) delivered in full (without the Company paying any portion of the Excise Tax)full, or (b) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Executive elects otherwise, the Company and Employee otherwise agree in writingshall reduce or eliminate the Total Payments by first reducing or eliminating any cash severance benefits, then by reducing or eliminating any accelerated vesting of stock options, then by reducing or eliminating any accelerated vesting of other equity-based awards, then by reducing or eliminating any other remaining Total Payments. Any determination required under this Section 5 section shall be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee the Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5section.

Limitation on Payments. In (a) Notwithstanding any other provision of this Agreement, if any portion of any payment under this Agreement, or under any other agreement with or plan of the event Company or its affiliates (in the aggregate "Total Payments"), would constitute an "excess parachute payment," then the Total Payments to be made to the Executive shall be reduced such that the payments and other benefits provided for in this Agreement value of the aggregate Total Payments that the Executive is entitled to receive shall be One Dollar ($1) less than the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 4999 (or otherwise payable to Employee (iany successor provision) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") and (iior which the Company may pay without loss of deduction under Section 280G(a) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”or any successor provision), then Employee’s payments and benefits under this Agreement or otherwise payable to Employee shall be either delivered in full (without the Company paying any portion of the Excise Tax), or delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making this Agreement, the terms "excess parachute payment" and "parachute payments" shall have the meanings assigned to them in Section 280G of the Code (or any successor provision), and such "parachute payments" shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) of the Code (or any successor provision). Within fifteen (15) days following the Date of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an excess parachute payment as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company's expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel selected by the Company's independent auditors and acceptable to the Executive in his sole discretion (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income, (ii) the amount and present value of Total Payments and (iii) the amount and present value of any excess parachute payments determined without regard to the limitations of this paragraph (a) of Section 9. As used in this Agreement, the term "Base Period Income" means an amount equal to the Executive's "annualized includible compensation for the base period" as defined in Section 280G(d)(1) of the Code (or any successor provision). For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code (or any successor provisions), which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. Such opinion shall be dated as of the Date of Termination and addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such opinion determines that there would be an excess parachute payment, any payment or benefit determined by such counsel to be includible in Total Payments shall be reduced or eliminated as specified by the Executive in writing delivered to the Company within thirty (30) days of his receipt of such opinion or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculations set forth in such opinion there will be no excess parachute payment. If such legal counsel so requests in connection with the opinion required by this paragraph (a) of Section 59, the Accountants may make reasonable assumptions Executive and approximations concerning applicable taxes the Company shall obtain, at the Company's expense, and the legal counsel may rely on reasonablein providing the opinion, good faith interpretations concerning the application advice of Section a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive. If the provisions of Sections 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under Code (or any successor provisions) are repealed without succession, then this paragraph (a) of Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits 9 shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) of no further force or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5effect.

Limitation on Payments. (a) In the event that Employee shall become entitled to the payments and other and/or benefits provided for in by Section 10(c) or any other amounts (whether pursuant to the terms of this Agreement or otherwise payable to Employee (iany other plan, arrangement or agreement with the Company, any person whose actions result in a change of ownership covered by Section 280G(b)(2) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") or any person affiliated with the Company or such person) as a result of a Change of Control (collectively the "Company Payments"), and (ii) would such Company Payments will be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed) the “Company shall pay to Employee at the time specified in subsection (d) below an additional amount (the "Gross-up Payment") such that the net amount retained by Employee, after deduction of any Excise Tax”Tax on the Company Payments and any federal, state, and local income or payroll tax upon the Gross-up Payment provided for by this paragraph (a), but before deduction for any federal, state, and local income or payroll tax on the Company Payments, shall be equal to the Company Payments. Notwithstanding the foregoing provisions of this Section 11 to the contrary, if it shall be determined that Employee is entitled to a Gross-up Payment, but the Company Payments do not exceed one hundred five percent (105%) of the greatest amount that could be paid to Employee such that the receipt of Company Payments would not give rise to any Excise Tax (the "Reduced Amount"), then Employee’s payments and benefits under this Agreement or otherwise payable no Gross-up Payment shall be made to Employee and the Company Payments, in the aggregate, shall be either delivered in full reduced to the Reduced Amount. (without b) For purposes of determining whether any of the Company paying any portion Payments and Gross-up Payments (collectively the "Total Payments") will be subject to the Excise Tax and determining the amount of such Excise Tax: (i) the Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Excise Tax)Code, or delivered and all "parachute payments" in excess of the "base amount" (as to such lesser extent which would result in no portion defined under Code Section 280G(b)(3) of such payments and benefits being the Code) shall be treated as subject to the Excise Tax, whichever unless and except to the extent that, in the opinion of the foregoing amountsCompany'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), taking (A) do not constitute "parachute payments," (B) represent reasonable compensation 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 (ii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. (c) For purposes of determining the amount of the Gross-up Payment, Employee 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 applicable time the Gross-up Payment is made, Employee 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 (plus the portion of the Gross-up Payment attributable to the Excise Tax and federal, state and local income taxes tax imposed on the portion of the Gross-up Payment being repaid by Employee 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 Employee, and interest payable to the Company shall not exceed the interest received or credited to Employee by such tax authority for the period it held such portion. Employee and the Company shall mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if Employee's claim for refund or credit is denied. In the event that the Excise Tax, results in Tax is later determined by the receipt 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 Employee on an after-tax basis reason of any payment the existence or amount of which cannot be determined at the time of the greatest 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 payments and benefits, notwithstanding that all such excess is finally determined. (d) The Gross-up Payment or some portion of such payments and benefits may subject thereof provided for in subsection (c) above shall be paid not later than the thirtieth (30th) day following an event occurring which subjects Employee to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any nonif the amount of such Gross-taxable up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Employee on such day an estimate, as determined in good faith by the Accountants, of the minimum amount of such payments or benefits 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 reduced last determined, but in accordance with no event later than the same categorical ordering rule. In the event items described in ninetieth (290th) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following day after the occurrence of the event triggering subjecting Employee to the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Tax. In the event that acceleration the amount of vesting of equity-based awards is the estimated payments exceeds the amount subsequently determined to be reducedhave been due, such acceleration of vesting excess shall be cancelled in constitute a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined loan by the Accountants. Company to Employee, 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 no the event will Employee exercise any discretion with respect to the ordering of any reduction of payments controversy with the Internal Revenue Service (or benefits pursuant other taxing authority) under this Section 11, Employee shall permit the Company to control issues related to this Section 511 (at its expense), provided that such issues do not potentially materially adversely affect Employee, but Employee shall control any other issues. In the event the issues are interrelated, Employee and the Company shall in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree, Employee 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, Employee shall permit the representative of the Company to accompany him, and Employee 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) In the event that the any payments and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) but for this Section 15, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s payments and any post-termination severance benefits payable under this Agreement or otherwise payable to Employee shall will be either either: (i) delivered in full full, or (without the Company paying any portion of the Excise Tax), or ii) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to excise tax under Section 4999 of the Excise Tax, Code, (iii) whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject be taxable under Section 4999 of the Code. (b) If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the Excise Tax. following order: (i) reduction of cash payments; (ii) cancellation of accelerated vesting of equity awards (by cutting back performance-based awards first and then time-based awards, based on reverse order of vesting dates (rather than grant dates)), if applicable; and (iii) reduction of employee benefits. (c) Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 15 will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated accountants or by agreement between Employee and Company such other person or entity to which the parties mutually agree (the “AccountantsFirm”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposesCompany. For purposes of making the calculations required by this Section 515, the Accountants Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company will bear all costs the Firm may incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 515.

Limitation on Payments. In the event that any of the payments and other or benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) but for this Section IV.E, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then the Employee’s payments and or benefits under this Agreement or otherwise payable to Employee shall will be either either: (A) delivered in full full, or (without the Company paying any portion of the Excise Tax), or B) delivered as to such lesser extent which would result in no portion of such payments and or benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999 of the Code, results in the receipt by the Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and or benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 shall IV.E will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to the Change in Control Date (the “Accountants”), whose determination shall will be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5IV.E, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. IV.E. The Company will bear all fees and costs payable to the Accountants in connection with any calculations contemplated by this Section IV.E. Any reduction in payments and/or benefits required by this Section 5 IV.E shall occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rightscash payments, (2) reduction of cash payments; equity acceleration (full-value awards first, then stock options), and (3) reduction of non-cash/non-equity-based payments or other benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with paid to the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Employee. In the event that acceleration of vesting of equity-based equity awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by reverse order of the Accountants. In no event will Employee exercise any discretion with respect to date of grant of the ordering of any reduction of payments or benefits pursuant to this Section 5equity awards.

Limitation on Payments. In If any payments pursuant to the event that the payments and other benefits provided for in this Agreement or otherwise payable would be subject to Employee (i) constitute “parachute payments” within the meaning of tax under Section 280G 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise TaxPayments”), then Employee’s payments and benefits under this Agreement Executive shall receive either (i) the full Payments or otherwise payable to Employee shall be either delivered in full (without the Company paying any portion ii) such lesser amount of the Excise Tax), or delivered Payments as would yield the greatest net amount to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis (applying the then highest aggregate marginal tax rates and Section 4999). If a reduction of the greatest amount of payments and Payments is required pursuant to subpart (ii), then the Payments will be reduced in the following order: (i) any cash payments, (ii) any taxable benefits, notwithstanding (iii) any nontaxable benefits, and (iv) any vesting of equity awards in each case in reverse order beginning with payments or benefits that all or some portion are to be paid the farthest in time from the date that triggers the applicability of such payments and benefits may subject the excise tax, to the Excise Tax. Unless extent necessary to maximize the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Codereduced Payment. The Company and Employee shall furnish may elect to contest at its expense any initial IRS determination with respect to the Accountants such information and documents as Executive. The Executive shall cooperate reasonably with the Accountants may reasonably request Company in order any effort by the Company to make a contest an IRS determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined paragraph, including by the Accountants: making of such filings and appeals as the Company may reasonably require, but nothing herein shall be construed as requiring the Executive to bear any cost or expense of such a contest or in connection therewith to compromise any tax item (1including without limitation any deduction or credit) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); providedthe Section 4999 tax and related interest and penalties, howeverif any, that any non-taxable payments or benefits shall be reduced last in accordance with are the same categorical ordering rulesubject of the contested IRS determination. In the event items described in (2) of any underpayment or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent)overpayment under this Agreement, as determined by the Accountants. In no event will Employee exercise any discretion with respect nationally recognized accounting firm, the amount of such underpayment or overpayment shall be promptly paid to the ordering Executive or refunded to the Company, as the case may be, with interest at 120% of any reduction the applicable Federal rate provided for in Section 7872(f)(2) of payments or benefits pursuant to the Internal Revenue Code. All tax determinations under this Section 55(h) shall be made at the Company’s expense by a nationally recognized accounting firm selected by the Company in its reasonable discretion. Any good faith determinations of this accounting firm made hereunder shall be final, binding and conclusive upon the Company and the Executive.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then EmployeeExecutive’s payments and benefits under this Agreement or otherwise payable to Employee shall be either (a) delivered in full (without the Company paying any portion of the Excise Tax)full, or (b) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. The payments or benefits subject to any such reduction shall be reduced by Vitesse in its reasonable discretion in the following order: (i) reduction of any payments and benefits may subject otherwise payable to Executive that are exempt from Section 409A of the Excise TaxCode, and (ii) reduction of any other payments and benefits otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined by Vitesse. Unless the Company Vitesse and Employee Executive otherwise agree in writing, any determination required under this Section 5 13 shall be made in writing by a nationally-recognized Vitesse’s independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee Executive and the Company Vitesse for all purposes. For purposes of making the calculations required by this Section 513, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company Vitesse and Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 513. Any reduction Vitesse shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 513.

Limitation on Payments. In (a) Anything in this Agreement to the contrary notwithstanding, in the event that a Change in Control or other transaction occurs and any payment or distribution by or on behalf of the payments and other benefits provided Company to or for in the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise payable to Employee (iotherwise) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “CodePayments”) and (ii) would be subject to the excise tax imposed by under Section 4999 of the Internal Revenue Code or any corresponding provisions of state or local excise tax law (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable to Employee shall be either delivered in full (without the Company paying any portion shall pay or provide Executive with the greater of the following amounts, whichever results in the higher net after-tax amount (after taking into account federal, state, local and payroll taxes at Executive’s marginal rates and the Excise Tax): (a) the Payments; or (b) Payments not in excess of the greatest amount that can be paid without resulting in the imposition of the Excise Tax), or delivered as to such lesser extent which would result in no portion of such payments and benefits being subject . Any reduction to the Excise TaxPayments shall first be made from any cash benefits payable pursuant to this Agreement, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes thereafter as determined by Executive and the Excise Tax, results in the receipt by Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the CodeCompany. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order be responsible for timely selecting an accounting firm to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that to whether any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 would be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion reported with respect to the ordering Payments, and the Company shall be responsible for all fees and expenses connected with the determinations made by such accounting firm. (b) Executive agrees to notify the Company in the event of any reduction audit or other proceeding by the IRS or any taxing authority in which the IRS or other taxing authority asserts that any Excise Tax should be assessed against Executive and to cooperate with the Company in contesting any such proposed assessment with respect to such Excise Tax (a “Proposed Assessment”). Executive agrees not to settle any Proposed Assessment without the consent of payments or benefits pursuant the Company. If the Company does not consent to this Section 5.allow Executive to settle the Proposed Assessment within thirty (30) days following such demand therefor, the Company shall indemnify and hold harmless Executive with respect to any additional taxes, interest and/or penalties that Executive is required to pay by reason of the delay in finally resolving Executive’s tax liability (such indemnification to be made as soon as practicable, but in no event later than the end of the calendar year following the calendar year in which Employee makes such remittance)

Limitation on Payments. In If any payment or benefit you would receive pursuant to a Change in Control form the event that the payments and other benefits provided for in this Agreement company or otherwise payable to Employee (“Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of 280Gof the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable such Payment shall be equal to Employee the Reduced Amount, the “Reduced Amount” shall be either delivered in full (without x) the Company paying any largest portion of the Excise Tax), or delivered as to such lesser extent which Payment that would result in no portion of such payments and benefits the Payment being subject to the Excise TaxTax or (y) the largest portion, up to and including the total, of the Payment, whichever of the foregoing amountsamount, after taking into account the all applicable federal, state and local employment taxes, income taxes and the Excise TaxTax (all computed at the highest applicable marginal rate), results in your receipt, on the receipt by Employee on an after-tax basis basis, of the greatest greater amount of payments and benefits, the Payment notwithstanding that all or some portion of such payments and benefits the Payment may be subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by If a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or or benefits required by this Section 5 constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order as reasonably determined by unless you elect in writing a different order (provided, however, that such election shall be subject to Board approval if made on or after the Accountants: (1) reduction effective date of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) the event that triggers the Payment): reduction of cash payments; (3) cancellation of Acceleration; reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time)employee benefits. In the event that acceleration of vesting of equity-based awards Acceleration is to be reduced, such acceleration of vesting it shall be cancelled in the reverse order of the date of grant of your Options (i.e., earliest granted Option cancelled last) unless you elect in writing a manner such as to obtain the best economic benefit different order for Employee (with reductions made pro-rata if economically equivalent), as determined cancellation. The accounting firm engaged by the AccountantsCompany for general audit 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 firm to make the determinations required hereunder. In no event will Employee exercise any discretion The Company shall bear all expenses with respect to the ordering determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to you and the Company within fifteen (15) calendar days after the date on which your right to a Payment is triggered (if requested at the time by you or the Company) or such other time as requested by you or 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 any reduction the Reduced Amount, it shall furnish you and the Company with an opinion reasonably acceptable to you that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of payments or benefits pursuant to this Section 5the accounting firm made hereunder shall be final, binding and conclusive upon you and the Company.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this COC Agreement or otherwise payable to the Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 4, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Employee’s payments and severance benefits under this Agreement or otherwise payable to Employee Section 2(a)(i) shall be either either (i) delivered in full full, or (without the Company paying any portion of the Excise Tax), or ii) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by the Employee on an after-tax basis basis, of the greatest amount of payments and severance benefits, notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 4 shall be made in writing in good faith by a nationally-recognized independent public “Big Four” national accounting firm designated selected by agreement between Employee and the Company (the “Accountants”), whose determination in good faith consultation with the Employee. In the event of a reduction in benefits hereunder, the Employee shall be conclusive and binding upon Employee and given the Company for all purposeschoice of which benefits to reduce. For purposes of making the calculations required by this Section 54, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. (a) In the event that Employee shall become entitled to the payments and other and/or benefits provided for in by Section 10(c) or any other amounts (whether pursuant to the terms of this Agreement or otherwise payable to Employee (iany other plan, arrangement or agreement with the Company, any person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code or any person affiliated with the Company or such person) as a result of 1986such change of ownership or effective control (collectively the "COMPANY PAYMENTS"), as amended (the “Code”) and (ii) would such Company Payments will be subject to the excise tax (the "EXCISE TAX") imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed) the “Company shall pay to Employee at the time specified in subsection (d) below an additional amount (the "GROSS-UP PAYMENT") such that the net amount retained by Employee, after deduction of any Excise Tax”Tax on the Company Payments and any federal, state, and local income or payroll tax upon the Gross-up Payment provided for by this paragraph (a), but before deduction for any federal, state, and local income or payroll tax on the Company Payments, shall be equal to the Company Payments. Notwithstanding the foregoing provisions of this Section 11 to the contrary, if it shall be determined that Employee is entitled to a Gross-up Payment, but the Company Payments do not exceed one hundred five percent (105%) of the greatest amount that could be paid to Employee such that the receipt of Company Payments would not give rise to any Excise Tax (the "REDUCED AMOUNT"), then Employee’s payments and benefits under this Agreement or otherwise payable no Gross-up Payment shall be made to Employee and the Company Payments, in the aggregate, shall be either delivered in full reduced to the Reduced Amount. (without b) For purposes of determining whether any of the Company paying any portion Payments and Gross-up Payments (collectively the "TOTAL PAYMENTS") will be subject to the Excise Tax and determining the amount of such Excise Tax: (i) the Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Excise Tax)Code, or delivered and all "parachute payments" in excess of the "base amount" (as to such lesser extent which would result in no portion defined under Section 280G(b)(3) of such payments and benefits being the Code) shall be treated as subject to the Excise Tax, whichever unless and except to the extent that, in the opinion of the foregoing amountsCompany'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), taking (A) do not constitute "parachute payments," (B) represent reasonable compensation 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 (ii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. (c) For purposes of determining the amount of the Gross-up Payment, Employee 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 applicable time the Gross-up Payment is made, Employee 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 (plus the portion of the Gross-up Payment attributable to the Excise Tax and federal, state and local income taxes tax imposed on the portion of the Gross-up Payment being repaid by Employee 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 Employee, and interest payable to the Company shall not exceed the interest received or credited to Employee by such tax authority for the period it held such portion. Employee and the Company shall mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if Employee's claim for refund or credit is denied. In the event that the Excise Tax, results in Tax is later determined by the receipt 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 Employee on an after-tax basis reason of any payment the existence or amount of which cannot be determined at the time of the greatest 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 payments and benefits, notwithstanding that all such excess is finally determined. (d) The Gross-up Payment or some portion of such payments and benefits may subject thereof provided for in subsection (c) above shall be paid not later than the thirtieth (30th) day following an event occurring which subjects Employee to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any nonif the amount of such Gross-taxable up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Employee on such day an estimate, as determined in good faith by the Accountants, of the minimum amount of such payments or benefits 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 reduced last determined, but in accordance with no event later than the same categorical ordering rule. In the event items described in ninetieth (290th) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following day after the occurrence of the event triggering subjecting Employee to the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Tax. In the event that acceleration the amount of vesting of equity-based awards is the estimated payments exceeds the amount subsequently determined to be reducedhave been due, such acceleration of vesting excess shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined constitute an advance by the Accountants. Company to Employee, 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 no the event will Employee exercise any discretion with respect to the ordering of any reduction of payments controversy with the Internal Revenue Service (or benefits pursuant other taxing authority) under this Section 11, Employee shall permit the Company to control issues related to this Section 511 (at its expense), provided that such issues do not potentially materially adversely affect Employee, but Employee shall control any other issues. In the event the issues are interrelated, Employee and the Company shall in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree, Employee 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, Employee shall permit the representative of the Company to accompany him, and Employee and his representative shall cooperate with the Company and its representative. (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 Employee and the repayment obligation null and void.

Limitation on Payments. In the event that the payments and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”) "), and (ii) but for this Section 6, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”or any corresponding provisions of state income tax law), then the Employee’s payments and 's benefits under this Agreement or otherwise payable to Employee Section 4(a) shall be either either (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis tax-basis, of the greatest greater amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 6 shall be made in writing by a nationally-recognized the Company's independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants”"ACCOUNTANTS"), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 56, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time)6. In the event that acceleration of vesting of equity-based awards is to be reducedsubsection (a) above applies, such acceleration of vesting then Employee shall be cancelled in a manner such as to obtain the best economic benefit responsible for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion excise taxes imposed with respect to such benefits. In the ordering event that subsection (b) above applies, then each benefit provided hereunder shall be proportionately reduced to the extent necessary to avoid imposition of any reduction of payments or benefits pursuant to this Section 5such excise taxes.

Limitation on Payments. In 4.9.1 If any payment or benefit you will or may receive from the event that the payments and other benefits provided for in this Agreement Company or otherwise payable to Employee (a “280G Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable any such 280G Payment (a “Payment”) shall be equal to Employee the Reduced Amount. The “Reduced Amount” shall be either delivered in full (without x) the Company paying any largest portion of the Excise Tax), or delivered as to such lesser extent which Payment that would result in no portion of such payments and benefits the Payment (after reduction) being subject to the Excise TaxTax or (y) the largest portion, up to and including the total, of the Payment, whichever of amount (i.e., the foregoing amountsamount determined by clause (x) or by clause (y)), after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the Excise TaxTax (all computed at the highest applicable marginal rate), results in the receipt by Employee your receipt, on an after-tax basis basis, of the greatest amount of payments and benefits, greater economic benefit notwithstanding that all or some portion of such payments and benefits the Payment may be subject to the Excise Tax. Unless If a reduction in a Payment is required pursuant to the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee preceding sentence and the Company for all purposes. For purposes Reduced Amount is determined pursuant to clause (x) of making the calculations required by this Section 5preceding sentence, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by manner (the Accountants: (1“Reduction Method”) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata results in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best greatest economic benefit for Employee (with reductions made pro-rata if economically equivalent)you. If more than one method of reduction will result in the same economic benefit, as determined the items so reduced will be reduced pro rata. 4.9.2 Unless you and the Company agree on an alternative accounting firm or law firm, the accounting firm engaged by the AccountantsCompany for general tax compliance purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. In no event will Employee exercise any discretion If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of 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 ordering of any reduction of payments determinations by such accounting or benefits 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 you and the Company within fifteen (15) calendar days after the date on which your right to a 280G Payment becomes reasonably likely to occur (if requested at that time by you or the Company) or such other time as requested by you or the Company. 4.9.3 If you receive a Payment for which the Reduced Amount was determined pursuant to this clause (x) of Section 54.9.1 and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, you agree to promptly return to the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of Section 4.9.1 so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) of Section 4.9.1, you shall have no obligation to return any portion of the Payment pursuant to the preceding sentence.

Limitation on Payments. In Notwithstanding anything set forth in this Employment Agreement to the contrary, in the event that any payment or benefit to the payments and other benefits provided Employee or for in his benefit paid or payable or distributed or distributable pursuant to the terms of this Agreement Employment Agreement, the Capital Bank Defined Benefit Supplemental Executive Retirement Plan (the “SERP”), or otherwise payable to Employee (a “Payment”) would individually or together with any other such payment or benefit (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code and any related interest or penalties (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable to Employee such Payment shall be either delivered reduced (the “Reduced Amount”) if and to the extent that a reduction in full (without the Company paying any portion of the Excise Tax), or delivered as to such lesser extent which Payment would result in no portion of such payments and benefits being subject to the Excise TaxEmployee retaining, whichever of the foregoing amounts, on an after-tax basis (after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the Excise TaxTax computed at the highest applicable marginal rate), results in the receipt by Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some a larger portion of such payments and benefits may subject to Payment than if the Excise TaxPayment were not so reduced. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by If a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments or benefits (or a cancellation of the acceleration of vesting of stock options or equity awards and/or benefits required by this Section 5 cancellation or other adjustment of accelerated vesting or service credit for SERP benefits) constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, such reduction and/or cancellation of acceleration shall occur in the following order as reasonably determined that generally provides the maximum economic benefit to Employee to the extent practicable for the Bank. The foregoing calculations shall be made at the Bank’s expense by an accounting firm selected by the Accountants: Bank and reasonably acceptable to the Employee which is designated as one of the seven (17) reduction of vesting acceleration of largest accounting firms in the United States (the “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rightsAccounting Firm”); provided, however, that any non-taxable payments the Accounting Firm not also be serving as accountant or benefits shall be reduced last auditor for the individual, entity or group effecting the change in accordance with ownership or control that gives rise to the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence potential application of the event triggering Excise Tax. The Accounting Firm engaged to make the calculations under this Section 5(d) shall provide its determination (the “Determination”), together with detailed supporting documentation, to the Bank and Employee as soon as practicable after the date on which Employee’s right to a Payment is triggered or such other time as is reasonably requested by the Bank or Employee. 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 shall furnish the Bank an opinion reasonably acceptable to Employee that no Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion imposed with respect to such Payment. Within ten (10) days of the ordering delivery of the Determination to the Bank, the Employee shall have the right to dispute the Determination (the “Dispute”). Upon the final resolution of a Dispute, the Bank shall pay to the Employee any reduction of payments or benefits additional amount required by such resolution in order to provide the Employee the maximum benefit possible pursuant to this Section 55(d). If there is no Dispute, the Determination shall be binding, final, and conclusive upon the Bank and Employee. Employee shall remain solely liable for all income taxes, Excise Taxes, or other amounts assessed on any Payments under this Section 5(d) and nothing in this Employment Agreement or otherwise shall be interpreted as obligating CBC, the Bank, or any successors thereto, to pay (or reimburse Employee for) any income taxes, Excise Taxes, or other taxes or amounts assessed against or incurred by Employee in connection with his receipt of such Payments. 2. A new Section 5(e) as follows is added to provide for the payment or reimbursement, if necessary, of certain legal fees and expenses incurred by Employee in seeking to enforce or defend his rights under the Employment Agreement following a Change in Control as such term is defined in Section 5(a) of the Employment Agreement:

Limitation on Payments. (a) In the event that the any payments and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) but for this Section 15, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s payments and any post-termination severance benefits payable under this Agreement or otherwise payable to Employee shall will be either either: (i) delivered in full full, or (without the Company paying any portion of the Excise Tax), or ii) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to excise tax under Section 4999 of the Excise Tax, Code, (iii) whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject be taxable under Section 4999 of the Code. (b) If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the Excise Tax. following order: (i) reduction of cash payments; (ii) cancellation of accelerated vesting of equity awards (by cutting back performance-based awards first and then time-based awards, based on reverse order of vesting dates (rather than grant dates)), if applicable; and (iii) reduction of employee benefits. (c) Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 15 will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated accountants or by agreement between Employee and Company such other person or entity to which the parties mutually agree (the “AccountantsFirm”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposesCompany. For purposes of making the calculations required by this Section 515, the Accountants Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company will bear all costs the Firm may incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule15. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.​

Limitation on Payments. In Notwithstanding anything in this Agreement to the event that the payments and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Employee (“Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) and (ii) would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable to Employee such Payment shall either be either (x) delivered in full (without the Company paying any portion of the Excise Tax)full, or (y) delivered as to such lesser extent which would result in no portion of such payments and benefits Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefitslargest payment, notwithstanding that all or some portion of such payments and benefits the Payment may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required be taxable under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish A determination as to whether the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits Payment shall be reduced last in accordance with pursuant to this Agreement and the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, amount of such reduction shall occur in reverse chronological order such that be made by the payment Company’s independent public accountants or benefit owed on another certified public accounting firm or executive compensation consulting firm of national reputation designated by the latest date following Company (the occurrence “Firm”) at the Company’s expense. The Firm shall provide its determination (the “Determination”), together with detailed supporting calculations and documentation to the Company and Executive within fifteen (15) calendar days of the event triggering date of termination of Executive’s employment, if applicable, or such other time as reasonably requested by the Company or Executive, and if the Firm determines that no Excise Tax is payable by Executive with respect to any Payment, it shall furnish Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion imposed with respect to any such Payment. Unless Executive provides written notice to the ordering Company within fifteen (15) calendar days of the delivery of the Determination to Executive that Executive disputes such Determination, the Determination shall be binding, final and conclusive upon the Company and Executive. Unless Executive elects a different order of reduction, any such election to be consistent with the requirements of Section 409A of the Code, to the extent that a reduction of in payments or benefits is required pursuant to this Section 59(b), the Company shall reduce or eliminate amounts which are payable first from any cash severance and cash bonuses, then from any payment in respect of an equity award that is not covered by Treas. Reg. Section 1.280G-1 Q/A-24(b) or (c), then from any payment in respect of an equity award that is covered by Treas. Reg. Section 1.280G-1 Q/A-24(c), in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as defined below). Any election given by Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing Executive’s rights and entitlements to any benefits or compensation.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee the Executive (i) constitute “parachute payments” within the meaning of Section 280G of the United States Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then EmployeeExecutive’s payments and benefits under this Agreement or otherwise payable to Employee shall be either either (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee otherwise agree in writing, any Any determination required under this Section 5 section shall be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee the Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this section. All payments made under this Agreement shall be subject to reduction for all applicable federal, state, and local tax withholdings and any other required withholdings. Any reduction in payments and/or benefits required by this Section 5 Agreement shall occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (42) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights)equity awards; provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or and (3) are reduction of other benefits paid or provided to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Executive. In the event that acceleration of vesting of equity-based equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for Executive’s equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5basis.

Limitation on Payments. (a) In the event that the any payments and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) but for this Section 15, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s payments and any post-termination severance benefits payable under this Agreement or otherwise payable to Employee shall will be either either: (i) delivered in full full, or (without the Company paying any portion of the Excise Tax), or ii) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to excise tax under Section 4999 of the Excise Tax, Code, (iii) whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject be taxable under Section 4999 of the Code. (b) If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the Excise Tax. following order: (i) reduction of cash payments; (ii) cancellation of accelerated vesting of equity awards (by cutting back performance-based awards first and then time-based ​ awards, based on reverse order of vesting dates (rather than grant dates)), if applicable; and (iii) reduction of employee benefits. (c) Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 15 will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated accountants or by agreement between Employee and Company such other person or entity to which the parties mutually agree (the “AccountantsFirm”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposesCompany. For purposes of making the calculations required by this Section 515, the Accountants Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company will bear all costs the Firm may incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 515.

Limitation on Payments. (a) In the event that Employee shall become entitled to the payments and other and/or benefits provided for in by Section 10(c) or any other amounts (whether pursuant to the terms of this Agreement or otherwise payable to Employee (iany other plan, arrangement or agreement with the Company, any person whose actions result in a change of ownership covered by Section 280G(b)(2) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") or any person affiliated with the Company or such person) as a result of a Change of Control (collectively the "Company Payments"), and (ii) would such Company Payments will be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed) the “Company shall pay to Employee at the time specified in subsection (d) below an additional amount (the "Gross-up Payment") such that the net amount retained by Employee, after deduction of any Excise Tax”Tax on the Company Payments and any federal, state, and local income or payroll tax upon the Gross-up Payment provided for by this paragraph (a), but before deduction for any federal, state, and local income or payroll tax on the Company Payments, shall be equal to the Company Payments. Notwithstanding the foregoing provisions of this Section 11 to the contrary, if it shall be determined that Employee is entitled to a Gross-up Payment, but the Company Payments do not exceed one hundred five percent (105%) of the greatest amount that could be paid to Employee such that the receipt of Company Payments would not give rise to any Excise Tax (the "Reduced Amount"), then Employee’s payments and benefits under this Agreement or otherwise payable no Gross-up Payment shall be made to Employee and the Company Payments, in the aggregate, shall be either delivered in full reduced to the Reduced Amount. (without b) For purposes of determining whether any of the Company paying any portion Payments and Gross-up Payments (collectively the "Total Payments") will be subject to the Excise Tax and determining the amount of such Excise Tax: (i) the Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Excise Tax)Code, or delivered and all "parachute payments" in excess of the "base amount" (as to such lesser extent which would result in no portion defined under Code Section 280G(b)(3) of such payments and benefits being the Code) shall be treated as subject to the Excise Tax, whichever unless and except to the extent that, in the opinion of the foregoing amountsCompany'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), taking (A) do not constitute "parachute payments," (B) represent reasonable compensation 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 (ii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. (c) For purposes of determining the amount of the Gross-up Payment, Employee 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 applicable time the Gross-up Payment is made, Employee 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 (plus the portion of the Gross-up Payment attributable to the Excise Tax and federal, state and local income taxes tax imposed on the portion of the Gross-up Payment being repaid by Employee 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 Employee, and interest payable to the Company shall not exceed the interest received or credited to Employee by such tax authority for the period it held such portion. Employee and the Company shall mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if Employee's claim for refund or credit is denied. In the event that the Excise Tax, results in Tax is later determined by the receipt 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 Employee on an after-tax basis reason of any payment the existence or amount of which cannot be determined at the time of the greatest 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 payments and benefits, notwithstanding that all such excess is finally determined. (d) The Gross-up Payment or some portion of such payments and benefits may subject thereof provided for in subsection (c) above shall be paid not later than the thirtieth (30th) day following an event occurring which sub jects Employee to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any nonif the amount of such Gross-taxable up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Employee on such day an estimate, as determined in good faith by the Accountants, of the minimum amount of such payments or benefits 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 reduced last determined, but in accordance with no event later than the same categorical ordering rule. In the event items described in ninetieth (290th) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following day after the occurrence of the event triggering subjecting Employee to the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Tax. In the event that acceleration the amount of vesting of equity-based awards is the estimated payments exceeds the amount subsequently determined to be reducedhave been due, such acceleration of vesting excess shall be cancelled in constitute a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined loan by the Accountants. Company to Employee, 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 no the event will Employee exercise any discretion with respect to the ordering of any reduction of payments controversy with the Internal Revenue Service (or benefits pursuant other taxing authority) under this Section 11, Employee shall permit the Company to control issues related to this Section 511 (at its expense), provided that such issues do not potentially materially adversely affect Employee, but Employee shall control any other issues. In the event the issues are interrelated, Employee and the Company shall in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree, Employee 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, Employee shall permit the representative of the Company to accompany him, and Employee 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. In the event it shall be determined that any compensation by or benefit from the payments and other benefits Company to the Executive or for the Executive’s benefit, provided for in this Agreement or otherwise payable to Employee under subsections 7.6(a)-(e) above (“Payments”), (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employeethe Executive’s payments and benefits under this Agreement or otherwise payable to Employee Payments shall be either either: (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee the Executive on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee the Executive otherwise agree in writing, any determination required under this Section 5 7(g) shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company the Company’s accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee the Executive and the Company for all purposes. For purposes of making the calculations required by this Section 57(g), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 57(g). Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time7(g). In the event that acceleration of vesting of equity-based awards is to Payments must be reduced, such then the Payments will be reduced in the following order: (1) reduction in vesting acceleration of stock options and stock appreciation rights; (2) reduction in vesting shall acceleration of restricted stock units and restricted stock; (3) reduction in other equity compensation treated as being granted in anticipation of a change in control; (4) reduction of cash payments and (5) reduction of other benefits payable or to be cancelled in a manner such as provided to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the AccountantsExecutive. In no the event will Employee exercise any discretion with respect that equity compensation acceleration or grants are to be reduced or cancelled, such reduction or cancellation shall occur in the ordering reverse order of any reduction the date of payments or benefits pursuant to this Section 5grant of the Employee’s equity awards.

Limitation on Payments. a. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee the Executive (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then Employee’s payments and the Executive's severance benefits under this Agreement or otherwise payable to Employee Sections 3(a)(ii)(1)-(5) (the "Payments") shall be either delivered payable either: (i) in full full, or (without the Company paying any portion of the Excise Tax), or delivered ii) as to such lesser extent amount which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode (the "Limited Payment Amount"), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee the Executive on an after-tax basis of the greatest amount of payments and benefitsseverance benefits under Sections 3(a)(ii)(1)-(4), notwithstanding that all or some portion of such payments and severance benefits may be taxable under Section 4999 of the Code. Unless Executive shall have given prior written notice specifying a different order to the Company to effectuate the Limited Payment Amount, the Company shall reduce or eliminate the Payments by (i) first reducing or eliminating those payments or benefits which are payable in cash and then (ii) by reducing or eliminating non-cash payments or benefits, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as hereinafter defined). Any notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing Executive's rights and entitlements to any benefits or compensation. b. An initial determination as to whether the Payments shall be reduced to the Limited Payment Amount and the amount of such Limited Payment Amount shall be made, at the Company's expense, by the accounting firm that is the Company's independent accounting firm as of the date of the Change in Control (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to the Company and Executive within ten (10) days of the Termination Date, if applicable, or such other time as requested by the Company or by Executive (provided Executive reasonably believes that any of the Payments may be subject to the Excise Tax) and, if the Accounting Firm determines that no Excise Tax is payable by Executive with respect to a Payment or Payments, it shall furnish Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to any such Payment or Payments. Unless Within ten (10) days of the delivery of the Determination to Executive, Executive shall have the right to dispute the Determination (the "Dispute"). If there is no Dispute, the Determination shall be binding, final and conclusive upon the Company and Employee otherwise agree in writingExecutive, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning subject to the application of Section 280G 5(c) below. 6 As a result of the uncertainty in the application of Sections 4999 and 4999 280 of the Code, it is possible that the Payments to be made to, or provided for the benefit of Executive either will be greater (an "Excess Payment") or less (an "Underpayment") than the amounts provided for by the limitations contained in Section 5(a). The Company If it is established, pursuant to a final determination of a court of an Internal Revenue Service (the "IRS") proceeding which has been finally and Employee conclusively received, than an Excess Payment has been made, such Excess Payment shall furnish be deemed for all purposes to be a loan to Executive made on the date Executive received the Excess Payment, which loan Executive must repay to the Accountants such information and documents as Company together with interest at the Accountants may reasonably request in order to make a determination applicable federal rate under this Code Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights7872(f)(2); provided, however, provided that any non-taxable payments or benefits no loan shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are deemed to be reduced, reduction shall occur 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 have been made and no amount will be payable by Executive to the first Company unless, and only to the extent that, the deemed loan and payment would either reduce the amount on which Executive is subject to be reduced (with reductions made pro-rata in the event payments are owed at the same time)tax under Code Section 4999 or generate a refund of tax imposed under Code Section 4999. In the event that acceleration of vesting of equity-based awards it is to be reduceddetermined, such acceleration of vesting by (i) the Accounting Firm, the Company (which shall be cancelled in a manner such as to obtain include the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined position taken by the Accountants. In no event will Employee exercise any discretion Company, or together with respect its consolidated group, on its federal income tax return) or the IRS, (ii) pursuant to a determination by a court, or (iii) upon the resolution to Executive's satisfaction of the Dispute, that an underpayment has occurred, the Company shall pay an amount equal to the ordering Underpayment to Executive within ten (10) days of any reduction such determination or resolution, together with interest on such amount at the applicable federal rate under Code Section 7872(f)(2) from the date such amount would have been paid to Executive until the date of payments or benefits pursuant to this Section 5payment.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) but for this Section 4, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s payments and benefits under this Agreement or otherwise payable to Employee shall Section 3 will be either either: (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Taxexcise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the following order: reduction of cash payments; cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G), cancellation of accelerated vesting of equity awards; and reduction of employee benefits. 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 date of grant of Employee’s equity awards. In no event shall Employee have any discretion with respect to the Excise Taxordering of payment reductions. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall 4 will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to a Change of Control or such other person or entity to which the parties mutually agree (the “Accountants”), whose determination shall will be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 54, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company will bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (the “Payments”) (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 9, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments and benefits under this Agreement or otherwise payable to Employee shall Payments will be either either: (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to the Excise Taxexcise tax under Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefitsPayments, notwithstanding that all or some portion of such payments and benefits Payments may be taxable under Section 4999 of the Code. If a reduction in the Payments constituting “parachute payments” is necessary so that no portion of such Payments is subject to the Excise Taxexcise tax under Section 4999 of the Code, the reduction shall occur in the following order: (1) reduction of the cash severance payments; (2) cancellation of accelerated vesting of equity awards; and (3) reduction of continued employee benefits. Unless In the Company and Employee otherwise agree in writingevent that acceleration of vesting of equity award compensation is to be reduced, any determination required under this Section 5 such acceleration of vesting shall be made cancelled first for all performance-based vesting and second for all time-based vesting, in writing each case in the reverse order of the date of grant of Executive’s equity awards. A nationally recognized certified professional services firm selected by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company the Company, the Company’s legal counsel or such other person or entity to which the parties mutually agree (the “AccountantsFirm”), whose determination ) shall perform the foregoing calculations related to the excise tax. The Company shall bear all expenses with respect to the determinations by the Firm required to be conclusive and binding upon Employee and the Company for all purposesmade hereunder. For purposes of making the calculations required by this Section 5Section, the Accountants Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Code Sections 280G and 4999 of the Code4999. The Company and Employee shall Executive will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably request in order to make a determination under this Section 5Section. 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 the severance benefits or other payments is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. Any reduction in payments and/or benefits required by this Section 5 shall occur in good faith determinations of the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits Firm made hereunder shall be reduced last in accordance with final, binding, and conclusive upon the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5Company and Executive.

Limitation on Payments. In the event that the payments and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) would will be subject to the excise tax imposed by Section 4999 of the Code Code, then the Employee shall receive (i) a payment from the Company sufficient to pay such excise tax (the “Excise TaxCompany Portion”), then Employee’s payments and benefits under this Agreement (ii) an additional payment from the Company sufficient to pay any Section 280G excise taxes, federal income taxes or otherwise payable to Employee shall be either delivered in full state income taxes (without collectively “Taxes”) arising from the Company paying any portion the Company Portion to the Employee pursuant to subsection (i) above and the additional payment pursuant to this subsection (ii). The intent of subsection (ii) above is to "gross-up" the amount of the Excise Tax), or delivered Company Portion such that any Taxes that arise as to such lesser extent which would a result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account Company paying either (a) the applicable federal, state and local income taxes and Company Portion or (b) any Taxes on the Excise Tax, results in the receipt by Employee on an after-tax basis Company Portion (including Taxes that arise as a result of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to Company paying Taxes) will be paid by the Excise TaxCompany. Unless the Company and the Employee otherwise agree in writing, any the determination of the Employee’s excise tax liability and the amount required to be paid under this Section 5 Agreement shall be made reasonably and in good faith and in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants”), whose determination shall be conclusive and binding upon the Employee and the Company for all purposespurposes (in the event the Accountants are unavailable to perform the calculations, the Employee and the Company shall mutually agree on a certified public accounting firm to perform the calculations). For purposes of making the calculations required by this Section 5Section, the Accountants may make reasonable reasonable, good faith assumptions and approximations concerning applicable taxes Taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section. To the extent that the Employee is not subject to Section 5 shall occur in the following order as reasonably determined 280G by the Accountants: (1) reduction reason of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of being a non-cash/nonUS taxpayer, but is subject to a foreign tax provision substantially similar to Section 280G, the gross-equity-based payments or benefits and (4) reduction up provisions of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 54 shall apply to such foreign provision.

Limitation on Payments. In If any payment or benefit Executive will or may receive from the event that the payments and other benefits provided for in this Agreement Company or otherwise payable to Employee (a “280G Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the of the Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable any such 280G Payment (a “Payment”) shall be equal to Employee the Reduced Amount. The “Reduced Amount” shall be either delivered in full (without x) the Company paying any largest portion of the Excise Tax), or delivered as to such lesser extent which Payment that would result in no portion of such payments and benefits the Payment (after reduction) being subject to the Excise TaxTax or (y) the largest portion, up to and including the total, of the Payment, whichever of amount (i.e., the foregoing amountsamount determined by clause (x) or by clause (y)), after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the Excise TaxTax (all computed at the highest applicable marginal rate), results in the receipt by Employee Executive’s receipt, on an after-tax basis basis, of the greatest amount of payments and benefits, greater economic benefit notwithstanding that all or some portion of such payments and benefits the Payment may be subject to the Excise Tax. Unless If a reduction in a Payment is required pursuant to the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee preceding sentence and the Company for all purposes. For purposes Reduced Amount is determined pursuant to clause (x) of making the calculations required by this Section 5preceding sentence, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by manner (the Accountants: (1“Reduction Method”) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata results in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best greatest economic benefit for Employee (with reductions made pro-rata if economically equivalent)Executive. If more than one method of reduction will result in the same economic benefit, as determined the items so reduced will be reduced pro rata. Unless Executive and the Company agree on an alternative accounting firm or law firm, the accounting firm engaged by the AccountantsCompany for general tax compliance purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. In no event will Employee exercise any discretion 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 ordering of any reduction of payments determinations by such accounting or benefits 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 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. If Executive receives a Payment for which the Reduced Amount was determined pursuant to this clause (x) of Section 58(a) and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, Executive agrees to promptly return to the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of Section 8(a) so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) of Section 8(a), Executive shall have no obligation to return any portion of the Payment pursuant to the preceding sentence.

Limitation on Payments. In the event that the payments and other benefits provided for Notwithstanding any provisions contained in this Agreement or otherwise payable to Employee the contrary, the Company shall not, and shall not be obligated to, pay any amount pursuant to this Agreement unless (i) constitute “parachute payments” within the meaning of Section 280G of Company has received funds which may be used to make such payment and which funds are not required to repay the Internal Revenue Code of 1986, as amended (the “Code”) Notes and Voluntary Advance Loans when due and (ii) would be subject after giving effect to such payment, either (x) there is sufficient liquidity availability (determined in accordance with the excise tax imposed by Section 4999 Program Documents), under all of the Code liquidity facilities for the Company's commercial paper program, to pay the Face Amount of all outstanding Notes and Voluntary Advance Loans when due or (the “Excise Tax”), then Employee’s payments y) all Notes and benefits under this Agreement or otherwise payable to Employee shall be either delivered Voluntary Advance Loans are paid in full (without the Company paying any portion of the Excise Tax), or delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights)full; provided, however, that the foregoing limitations on payments by the Company shall not apply to any non-taxable payments distributions of funds received by the Company pursuant to Section 4. Any amount which the Company does not pay pursuant to the operation of the preceding sentence shall not constitute a claim (as defined in Section 101 of the Bankruptcy Code) against or benefits shall corporate obligation of the Company for any such insufficiency unless and until such payment may be reduced last made in accordance with clauses (i) and (ii) above. The agreements in this subsection (k) shall survive termination of this Agreement, the same categorical ordering rule. In the event items described in (2) or (3) are reduction to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence zero of the event triggering the Excise Tax will be the first Unrecovered Liquidity Purchase Price of all Percentage Interests and payment to be reduced of all obligations hereunder. GOVERNING LAW; JURISDICTION. THIS AGREEMENT AND EACH ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (with reductions made proWITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN SECTION 5-rata in the event payments are owed at the same time1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW)). In the event that acceleration of vesting of equityANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY ASSIGNMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT AND ANY ASSIGNMENT, EACH OF THE COMPANY, THE ADMINISTRATOR, THE LIQUIDITY AGENT AND EACH PURCHASER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-based awards is to be reducedEXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent)THE ADMINISTRATOR, as determined by the AccountantsTHE LIQUIDITY AGENT AND EACH PURCHASER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT, ANY ASSIGNMENT OR ANY DOCUMENT RELATED HERETO. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5EACH OF THE COMPANY, THE ADMINISTRATOR, THE LIQUIDITY AGENT AND EACH PURCHASER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.

Limitation on Payments. (a) In the event that the any payments and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) but for this Section 15, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s payments and any post-termination severance benefits payable under this Agreement or otherwise payable to Employee shall will be either either: (i) delivered in full full, or (without the Company paying any portion of the Excise Tax), or ii) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to excise tax under Section 4999 of the Excise Tax, Code, (iii) whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject be taxable under Section 4999 of the Code. (b) If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will occur in the Excise Tax. following order: (i) reduction of cash payments; (ii) cancellation of accelerated vesting of equity awards (by cutting back performance-based awards first and then time-based awards, based on reverse order of vesting dates (rather than grant dates)), if applicable; and (iii) reduction of employee benefits. (c) Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 15 will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated accountants or by agreement between Employee and Company such other person or entity to which the parties mutually agree (the ​ ​ “AccountantsFirm”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposesCompany. For purposes of making the calculations required by this Section 515, the Accountants Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants Firm such information and documents as the Accountants Firm may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company will bear all costs the Firm may incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 515.

Limitation on Payments. In Notwithstanding any other provision of this Agreement, in the event that any payments to be made to the Employee under Sections 3.2, 3.3 or 3.4, together with other payments and other benefits provided for which Employee has a right to receive from the Company, result in this Agreement or otherwise payable to Employee (i) constitute there being a “parachute paymentspayment” within the meaning of under Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) would ), then such payments shall be subject reduced by the minimum amount necessary to avoid the imposition of the excise tax imposed by (“Excise Tax”) under Section 4999 of the Code Code, provided, however, that no such reduction in such payments shall be made if by not making such reduction, Employee's Retained Amount (as 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 “Excise Tax”Company and reasonably acceptable to Employee ("Tax Counsel"), then Employee’s 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 such payments and benefits under this Agreement or otherwise payable to Employee pursuant to this Section 3.5, Tax Counsel shall provide Employee and the Company with a report setting forth its calculations and containing related supporting information. In the event any such reduction is required, such payments shall be either delivered reduced in full the following order: (without i) the Company paying COBRA Payments, (ii) the Severance Payment, (iii) any portion of the Excise Tax), or delivered as to such lesser extent which would result in no other portion of such payments and benefits being that are not subject to the Excise Tax, whichever Section 409A of the foregoing amountsCode (other than payments resulting from any accelerated vesting of a Unit Appreciation Rights or under the Equity Incentive Plan, taking into account awarded to Employee under this Agreement), (iv) any payments that are subject to Section 409A of the applicable Code in reverse order of payment, and (v) any portion of such payments that are not subject to Section 409A and arise from any accelerated vesting of Unit Appreciation Rights or under Equity Incentive Plan, awarded to Employee under this Agreement. "Retained Amount" shall mean the present value (as determined in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of such payments net of all federal, state and local income taxes and the Excise Taximposed on Employee with respect thereto. In addition, results in the receipt by Payments to be made to Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits hereunder may be subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations modification if required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5Company’s regulatory authorities.

Limitation on Payments. In the event that any of the payments and other or benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986Code, as amended (the “Code”) and (ii) but for this Section IV.C, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then the Employee’s payments and or benefits under this Agreement or otherwise payable to Employee shall will be either either: (A) delivered in full full, or (without the Company paying any portion of the Excise Tax), or B) delivered as to such lesser extent which would result in no portion of such payments and or benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999 of the Code, results in the receipt by the Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and or benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 shall IV.C will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to the Change in Control Date (the “Accountants”), whose determination shall will be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5IV.C, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. IV.C. The Company will bear all fees and costs payable to the Accountants in connection with any calculations contemplated by this Section IV.C. Any reduction in payments and/or benefits required by this Section 5 IV.C shall occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rightscash payments, (2) reduction of cash payments; equity acceleration (full-value awards first, then stock options), and (3) reduction of non-cash/non-equity-based payments or other benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with paid to the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Employee. In the event that acceleration of vesting of equity-based equity awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by reverse order of the Accountants. In no event will Employee exercise any discretion with respect to date of grant of the ordering of any reduction of payments or benefits pursuant to this Section 5equity awards.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, 1986 as amended (the “Code”) and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then the Employee’s payments and severance benefits under this Agreement or otherwise payable to Employee Section 4(a) shall be either either (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, amounts taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis basis, of the greatest amount of payments and severance benefits, notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-nationally recognized independent public “Big Four” accounting firm designated selected by agreement between Employee and the Company (the “Accountants”), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall will occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (42) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights)equity awards; provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or and (3) are reduction of other benefits paid or provided to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Employee. In the event that acceleration of vesting of equity-based equity awards is to be reduced, such acceleration of vesting shall will be cancelled in the reverse order of the date of grant for Employee’s equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5basis.

Limitation on Payments. In Notwithstanding anything in this Agreement to the event that the payments and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Employee (i“Payment”) would (a) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (iib) would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable to Employee such Payment shall either be either (i) delivered in full (without the Company paying any portion of the Excise Tax)full, or (ii) delivered as to such lesser extent which would result in no portion of such payments and benefits Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefitslargest payment, notwithstanding that all or some portion of such payments and benefits the Payment may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required be taxable under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company will select an adviser with experience in performing calculations regarding the applicability of Section 280G of the Code and Employee the Excise Tax, provided, that the adviser’s determination shall furnish be made based upon “substantial authority” within the meaning of Section 6662 of the Code to perform the foregoing calculations. The Company shall bear all expenses with respect to the Accountants determinations by such information adviser required to be made hereunder. The adviser shall provide its calculations to the Company and documents Executive within fifteen (15) 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 Accountants may reasonably request in order to make a determination under this Section 5Company. Any good faith determinations of the adviser made hereunder shall be final, binding and conclusive upon the Company and Executive. Any reduction in payments and/or or benefits required by pursuant to this Section 5 shall 8 will occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2w) reduction of cash payments; (3x) cancellation of accelerated vesting of equity awards other than stock options; (y) cancellation of accelerated vesting of stock options; and (z) reduction of non-cash/non-equity-based payments or other benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are payable to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5Executive.

Limitation on Payments. (a) In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") and (ii) but for this Section 7 would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then the Employee’s payments and 's severance benefits under this Agreement or otherwise payable to Employee Section 5 shall be payable either delivered (i) in full (without the Company paying any portion of the Excise Tax)full, or delivered (ii) as to such lesser extent amount which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis basis, of the greatest amount of payments and benefitsseverance benefits under this Agreement, notwithstanding that all or some portion of such payments and severance benefits may subject be taxable under Section 4999 of the Code. (b) The Company shall be entitled to select which payments or benefits will be reduced and the manner and method of any such reduction of such payments or benefits. If, as a result of any reduction required by Section 8(a), amounts previously paid to the Excise Tax. Employee exceed the amount to which the Employee is entitled, the Employee will promptly return the excess amount to the Company. (c) Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 8 shall be made in writing by a nationally-recognized the Company's independent public accounting firm designated by agreement between Employee and Company accountants (the “"Accountants”"), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 57, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 57.

Limitation on Payments. (a) In the event that Employee shall become entitled to the payments and other and/or benefits provided for in by Section 10(c) or any other amounts (whether pursuant to the terms of this Agreement or otherwise payable to Employee (iany other plan, arrangement or agreement with the Company, any person whose actions result in a change of ownership covered by Section 280G(b)(2) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") or any person affiliated with the Company or such person) as a result of a Change of Control (collectively the "Company Payments"), and (ii) would such Company Payments will be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed) the “Company shall pay to Employee at the time specified in subsection (d) below an additional amount (the "Gross-up Payment") such that the net amount retained by Employee, after deduction of any Excise Tax”Tax on the Company Payments and any federal, state, and local income or payroll tax upon the Gross-up Payment pro vided for by this paragraph (a), but before deduction for any federal, state, and local income or payroll tax on the Company Payments, shall be equal to the Company Payments. Notwithstanding the foregoing provisions of this Section 11 to the contrary, if it shall be determined that Employee is entitled to a Gross-up Payment, but the Company Payments do not exceed one hundred five percent (105%) of the greatest amount that could be paid to Employee such that the receipt of Company Payments would not give rise to any Excise Tax (the "Reduced Amount"), then Employee’s payments and benefits under this Agreement or otherwise payable no Gross-up Payment shall be made to Employee and the Company Payments, in the aggregate, shall be either delivered in full reduced to the Reduced Amount. (without b) For purposes of determining whether any of the Company paying any portion Payments and Gross-up Payments (collectively the "Total Payments") will be subject to the Excise Tax and determining the amount of such Excise Tax: (i) the Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Excise Tax)Code, or delivered and all "parachute payments" in excess of the "base amount" (as to such lesser extent which would result in no portion defined under Code Section 280G(b)(3) of such payments and benefits being the Code) shall be treated as subject to the Excise Tax, whichever unless and except to the extent that, in the opinion of the foregoing amountsCompany'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), taking (A) do not constitute "parachute payments," (B) represent reasonable compensation 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 (ii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. (c) For purposes of determining the amount of the Gross-up Payment, Employee 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 applicable time the Gross-up Payment is made, Employee 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 (plus the portion of the Gross-up Payment attributable to the Excise Tax and federal, state and local income taxes tax imposed on the portion of the Gross-up Payment being repaid by Employee 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 Employee, and interest payable to the Company shall not exceed the interest received or credited to Employee by such tax authority for the period it held such portion. Employee and the Company shall mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if Employee's claim for refund or credit is denied. In the event that the Excise Tax, results in Tax is later determined by the receipt 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 Employee on an after-tax basis reason of any payment the existence or amount of which cannot be determined at the time of the greatest 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 payments and benefits, notwithstanding that all such excess is finally determined. (d) The Gross-up Payment or some portion of such payments and benefits may subject thereof provided for in subsection (c) above shall be paid not later than the thirtieth (30th) day following an event occurring which sub jects Employee to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any nonif the amount of such Gross-taxable up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Employee on such day an estimate, as determined in good faith by the Accountants, of the minimum amount of such payments or benefits 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 reduced last determined, but in accordance with no event later than the same categorical ordering rule. In the event items described in ninetieth (290th) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following day after the occurrence of the event triggering subjecting Employee to the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Tax. In the event that acceleration the amount of vesting of equity-based awards is the estimated payments exceeds the amount subsequently determined to be reducedhave been due, such acceleration of vesting excess shall be cancelled in constitute a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined loan by the Accountants. Company to Employee, 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 no the event will Employee exercise any discretion with respect to the ordering of any reduction of payments controversy with the Internal Revenue Service (or benefits pursuant other taxing authority) under this Section 11, Employee shall permit the Company to control issues related to this Section 511 (at its expense), provided that such issues do not potentially materially adversely affect Employee, but Employee shall control any other issues. In the event the issues are interrelated, Employee and the Company shall in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree, Employee 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, Employee shall permit the representative of the Company to accompany him, and Employee 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. In (a) If any payment or benefit Executive will or may receive from the event that the payments and other benefits provided for in this Agreement Company or otherwise payable to Employee (a “280G Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the of the Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable any such 280G Payment (a “Payment”) shall be equal to Employee the Reduced Amount. The “Reduced Amount” shall be either delivered in full (without x) the Company paying any largest portion of the Excise Tax), or delivered as to such lesser extent which Payment that would result in no portion of such payments and benefits the Payment (after reduction) being subject to the Excise TaxTax or (y) the largest portion, up to and including the total, of the Payment, whichever of amount (i.e., the foregoing amountsamount determined by clause (x) or by clause (y)), after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the Excise TaxTax (all computed at the highest applicable marginal rate), results in the receipt by Employee Executive’s receipt, on an after-tax basis after -tax basis, of the greatest amount of payments and benefits, greater economic benefit notwithstanding that all or some portion of such payments and benefits the Payment may be subject to the Excise Tax. Unless If a reduction in a Payment is required pursuant to the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee preceding sentence and the Company for all purposes. For purposes Reduced Amount is determined pursuant to clause (x) of making the calculations required by this Section 5preceding sentence, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by manner (the Accountants: (1“Reduction Method”) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata results in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best greatest economic benefit for Employee Executive. If more than one method of reduction will result in the same economic benefit, the items so reduced will be reduced pro rata. (with reductions made pro-rata if economically equivalent)b) Unless Executive and the Company agree on an alternative accounting firm or law firm, as determined the accounting firm engaged by the AccountantsCompany for general tax compliance purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. In no event will Employee exercise any discretion 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 ordering of any reduction of payments determinations by such accounting or benefits 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 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. (c) If Executive receives a Payment for which the Reduced Amount was determined pursuant to this clause (x) of Section 58(a) and the Internal Revenue Service determines thereafter that some portion of the Payment is subject to the Excise Tax, Executive agrees to promptly return to the Company a sufficient amount of the Payment (after reduction pursuant to clause (x) of Section 8(a) so that no portion of the remaining Payment is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount was determined pursuant to clause (y) of Section 8(a), Executive shall have no obligation to return any portion of the Payment pursuant to the preceding sentence.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) but for this Section 4, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”or any corresponding provisions of state income tax law), then Employee’s payments and severance benefits under this Agreement Section 3(a) or otherwise payable to Employee (b) shall be either either (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee on an after-tax basis tax-basis, of the greatest greater amount of payments and severance benefits, notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 4 shall be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 54, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 54. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reducedsubsection (a) above applies, such acceleration of vesting then Employee shall be cancelled in a manner such as to obtain the best economic benefit responsible for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion excise taxes imposed with respect to such severance and other benefits. In the ordering event that subsection (b) above applies, then each benefit provided hereunder shall be proportionately reduced to the extent necessary to avoid imposition of any reduction of payments or benefits pursuant to this Section 5such excise taxes.

Limitation on Payments. In (a) Notwithstanding any other provision of this Agreement, if any portion of any payment under this Agreement, or under any other agreement with or plan of the event Company or its affiliates (in the aggregate "Total Payments"), would constitute an "excess parachute payment," then the Total Payments to be made to the Executive shall be reduced such that the payments and other benefits provided for in this Agreement value of the aggregate Total Payments that the Executive is entitled to receive shall be One Dollar ($1) less than the maximum amount which the Executive may receive without becoming subject to the tax imposed by Section 4999 (or otherwise payable to Employee (iany successor provision) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") and (iior which the Company may pay without loss of deduction under Section 280G(a) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”or any successor provision), then Employee’s payments and benefits under this Agreement or otherwise payable to Employee shall be either delivered in full (without the Company paying any portion of the Excise Tax), or delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making this Agreement, the terms "excess parachute payment" and "parachute payments" shall have the meanings assigned to them in Section 280G of the Code (or any successor provision), and such "parachute payments" shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) of the Code (or any successor provision). Within fifteen (15) days following the Date of Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an excess parachute payment as defined in Section 280G of the Code (or any successor provision), the Executive and the Company, at the Company's expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel selected by the Company's independent auditors and acceptable to the Executive in his sole discretion (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income, (ii) the amount and present value of Total Payments and (iii) the amount and present value of any excess parachute payments determined without regard to the limitations of this paragraph (a) of Section 9. As used in this Agreement, the term "Base Period Income" means an amount equal to the Executive's "annualized includible compensation for the base period" as defined in Section 280G(d)(1) of the Code (or any successor provision). For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code (or any successor provisions), which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. Such opinion shall be dated as of the Date of Termination and addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such opinion determines that it is more likely than not the payment would be deemed an excess parachute payment by the Internal Revenue Service, any payment or benefit determined by such counsel to be includible in Total Payments shall be reduced or eliminated as specified by the Executive in writing delivered to the Company within thirty (30) days of his receipt of such opinion or, if the Executive fails to so notify the Company, then as the Company shall reasonably determine, so that under the bases of calculations set forth in such opinion there will be no excess parachute payment. If such legal counsel so requests in connection with the opinion required by this paragraph (a) of Section 59, the Accountants may make reasonable assumptions Executive and approximations concerning applicable taxes the Company shall obtain, at the Company's expense, and the legal counsel may rely on reasonablein providing the opinion, good faith interpretations concerning the application advice of Section a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive. If the provisions of Sections 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under Code (or any successor provisions) are repealed without succession, then this paragraph (a) of Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits 9 shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) of no further force or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5effect.

Limitation on Payments. In the event that the payments termination and other benefits provided for in this Agreement (the "Benefits") or otherwise payable to Employee the Executive (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”) "), and (ii) but for this Section 9(f) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then Employee’s payments and benefits the Benefits under this Agreement or otherwise payable to Employee Section 9 shall be payable either delivered (A) in full (without the Company paying any portion of the Excise Tax)full, or delivered (B) as to such lesser extent amount which would result in no portion of such payments and benefits the Benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee the Executive on an after-tax basis basis, of the greatest amount of payments and benefitsthe Benefits, notwithstanding that all or some portion of such payments and benefits Benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required be taxable under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The If a reduction in the Benefits is necessary to comply with the provisions of the preceding paragraph, the Executive shall be entitled to select which Benefits will be reduced and the manner and method of any such reduction of such Benefits. Within 30 days after the amount of any required reduction in Benefits is finally determined in accordance with the provisions of this Section 9(f), the Executive shall notify the Company and Employee shall furnish the Accounting Firm in writing regarding which Benefits are to be reduced. If no notification is given by the Accountants such information and documents Executive, the Company will determine which Benefits to reduce. If, as the Accountants may reasonably request in order to make a determination under this Section 5. Any result of any reduction in payments and/or benefits required by this Section 5 9(f), amounts previously paid to the Executive exceed the amount to which the Employee is entitled, the Employee will promptly return the excess amount to the Company. Any determination (the "Determination") with respect to this Section 9(f) shall occur in be made at the following order as reasonably determined Company's expense by an accounting firm selected by the Accountants: Company (1) reduction the "Accounting Firm"). The Accounting Firm shall provide its Determination that amounts otherwise payable would be subject to Section 4999, together with detailed supporting calculations and documentation to the Company and Executive within 15 days of vesting acceleration the effective date of “out-of-the-money” stock options Executive's termination of employment by the Company if applicable, or stock appreciation rightssuch other time as requested by the Company or by Executive. The Accounting Firm shall provide any other Determination requested within 10 days. Within 10 days of the delivery of a Determination to Executive, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits Executive shall have the right to dispute the Determination and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits such dispute shall be reduced last resolved in accordance with Section 17 of this Agreement. Upon the same categorical ordering ruleresolution of a dispute under Section 17, the Company shall promptly pay to Executive or the Executive shall pay to the Company, any amount required by such resolution and such resolution shall be binding, final and conclusive upon the Company and Executive. In If there is no dispute, the event items described in (2) or (3) are to Determination shall be reducedbinding, reduction final and conclusive upon the Company and Executive. Nothing herein shall occur in reverse chronological order such that limit the payment or benefit owed on the latest date following the occurrence of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata parties' respective rights in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reducedan applicable government taxing authority or a court, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (final, nonappealable order or decision, takes a position which is inconsistent with reductions made proa non-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering disputed Determination or a final and conclusive resolution of any reduction of payments or benefits pursuant to this Section 5a disputed Determination.

Limitation on Payments. (a) In the event that Deloitte & Touche, LLP, or any successor tax accountants to the payments and other benefits provided Company (the "Auditors") determine that any payment or distribution by the Company to or for in the benefit of the Executive, whether paid or payable (or distributed or distributable) pursuant to the terms of this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within a "Payment"), would be nondeductible by the meaning Company for federal income tax purposes because of Section section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”) and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”"), then Employee’s payments and benefits under the aggregate present value of the amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement or otherwise payable to Employee (the "Agreement Payments") shall be either delivered in full reduced (without the Company paying any portion of the Excise Tax), or delivered as to such lesser extent which would result in no portion of such payments and benefits being subject but not below zero) to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposesReduced Amount. For purposes of making the calculations required by this Section 59, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning "Reduced Amount shall be an amount expressed in present value which maximizes the application aggregate present value of Section Agreement Payments without causing any Payment to be nondeductible by the Company because of section 280G of the Code. (b) If the Auditors determine that any Payment would be nondeductible by the Company because of section 280G of the Code, then the Company shall promptly give the Executive notice to that effect and 4999 a copy of the detailed calculation thereof and of the Reduced Amount, and the Executive may then elect, in his sole discretion, which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount) and shall advise the Company in writing of his election within 10 days of his receipt of notice. If no such election is made by the Executive within such 10-day period, then the Company may elect which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 9, present value shall be determined in accordance with section 280G(d)(4) of the Code. The Company and Employee shall furnish to All determinations made by the Accountants such information and documents as the Accountants may reasonably request in order to make a determination Auditors under this Section 59 shall be binding upon the Company and the Executive and shall be made within 60 days of the Executive's termination of employment. Any reduction in payments and/or benefits required by As promptly as practicable following such determination and the elections hereunder, the Company shall pay to or distribute to or for the benefit of the Executive such amounts as are then due to him under this Section 5 Agreement and shall occur promptly pay to or distribute for the benefit of the Executive in the following order future such amounts as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are become due to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to him under this Section 5Agreement.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee the Covered Person (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employeethe Covered Person’s payments and severance benefits under this Agreement or otherwise payable to Employee Section 3(a)(i) shall be either (i) delivered in full (without the Company paying any portion of the Excise Tax)full, or (ii) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee the Covered Person on an after-after tax basis basis, of the greatest amount of severance payments and benefits, notwithstanding that all or some portion of such severance payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee the Covered Person otherwise agree in writing, any determination required under this Section 5 shall be made in writing in good faith by a nationally-recognized the accounting firm serving as the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to the Change of Control (the “Accountants”) in good faith consultation with the Covered Person. In the event of a reduction in benefits hereunder, unless the Covered Person provides direction otherwise (which alternative direction shall be subject to the Company’s consent, which shall not be unreasonably withheld), whose determination such benefits shall be conclusive reduced in the following order: (a) cash payments not subject to Section 409A of the Code; (b) cash payments subject to Section 409A of the Code; (c) equity compensation; and binding upon Employee and (d) non-cash forms of benefit. To the Company for all purposesextent any payment is to be made over time, then the payment shall be reduced in reverse chronological order. For purposes of making the calculations required by this Section 5, the Accountants Accountants, in consultation with the Covered Person, may make reasonable assumptions and approximations concerning the applicable taxes and may rely on reasonable, reasonable good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee the Covered Person shall furnish to the Accountants such information and documents as the Accountants may reasonably reasonable request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 56.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 8, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments and severance benefits under this Agreement or otherwise payable to Employee shall Section 7 will be either either: (i) delivered in full full, or (without the Company paying any portion of the Excise Tax), or ii) delivered as to such lesser extent which would result in no portion of such payments severance and other benefits being subject to excise tax under Section 4999 of the Excise TaxCode (a “Reduced Payment”), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and severance benefits, notwithstanding that all or some portion of such payments and severance benefits may subject be taxable under Section 4999 of the Code. If a Reduced Payment is made, (x) the severance and other benefits shall be paid only to the Excise Taxextent permitted under the Reduced Payment alternative, and Executive shall have no rights to any additional payments and/or benefits constituting a parachute payment, and (y) reduction in payments and/or benefits shall occur in the following order: (1) reduction of cash payments (if any); (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 (if any) paid 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 date of grant. Executive shall have no right to modify or otherwise influence the reduction of payments under the Reduced Payment alternative. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 8 will be made in writing by a nationally-recognized the Company’s independent public accounting firm designated by agreement between Employee and Company accountants immediately prior to Change of Control (the “Accountants”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposes. For purposes of making the calculations required by this Section 58, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 58. Any reduction The Company will bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 58.

Limitation on Payments. In Notwithstanding anything in this Agreement to the event that the payments and other benefits provided for in contrary, if any payment or distribution Executive would receive pursuant to this Agreement or otherwise payable to Employee (i“Payment”) would (a) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue 4 Code of 1986, as amended (the “Code”) and (iib) would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable to Employee such Payment shall either be either (i) delivered in full (without the Company paying any portion of the Excise Tax)full, or (ii) delivered as to such lesser extent which would result in no portion of such payments and benefits Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefitslargest payment, notwithstanding that all or some portion of such payments and benefits the Payment may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required be taxable under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish will select an adviser (which is not providing any services to the Accountants Company’s acquirer) with experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax, provided, that the adviser’s determination shall be made based upon “substantial authority” within the meaning of Section 6662 of the Code to perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such information adviser required to be made hereunder. The adviser shall provide its calculations to the Company and documents Executive within fifteen (15) 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 Accountants may reasonably request in order to make a determination under this Section 5Company. Any good faith determinations of the adviser made hereunder shall be final, binding and conclusive upon the Company and Executive. Any reduction in payments and/or or benefits required by pursuant to this Section 5 shall 8 will occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (2) cancellation of accelerated vesting of equity awards other than stock options; (3) reduction cancellation of non-cash/non-equity-based payments or benefits accelerated vesting of stock options; and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are payable to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5Executive.

Limitation on Payments. In (a) Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined that any payment or distribution by the payments and other benefits provided Bank to or for in the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise payable to Employee (i) a "Payment"), would constitute “an "excess parachute payments” payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”"), the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") and shall be reduced (iibut not below zero) would to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be subject to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”)Code. For purposes of this Section 22, then Employee’s payments and benefits under this Agreement or otherwise payable to Employee present value shall be either delivered determined in full (without the Company paying any portion accordance with Section 280G(d)(4) of the Excise Tax), or delivered as Code. (b) All determinations to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required be made under this Section 5 22 shall be made in writing by a nationally-recognized an independent public national accounting firm designated by agreement between Employee and Company the Bank (the “Accountants”"Accounting Firm"), whose which firm shall provide its determinations and any supporting calculations both to the Bank and the Executive within 10 days after the date for payment of any Agreement Payment subject to reduction under this section. Any such determination by the Accounting Firm shall be conclusive and binding upon Employee the Bank and the Company for all purposesExecutive. For purposes The Executive shall then have the right to determine which of making the calculations required by Agreement Payments shall be eliminated or reduced in order to produce the Reduced Amount in accordance with the requirements of this Section 5section. Within five days after this determination, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning Bank shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of the Executive such amounts as are then due to the Executive under this Agreement. (c) As a result of the uncertainty in the application of Section 280G and 4999 of the Code, it is possible that Agreement Payments will have been made by the Bank which should not have been made ("Overpayment") or that additional Agreement Payments which have not been made by the Bank could have been made ("Underpayment"), in each case, consistent with the calculations required to be made hereunder. The Company From time to time as the Bank or the Executive shall deem appropriate, the Accounting Firm shall review the determinations made by it pursuant to subsection (b) of this section, and Employee the Bank and the Executive shall furnish cooperate and provide all information necessary for such review. In the event that the Accounting Firm determines that an Overpayment has been made, any such Overpayment shall be treated for all purposes as a loan to the Accountants such information and documents as Executive which the Accountants may reasonably request in order Executive shall repay to make a determination the Bank together with interest from the date of payment under this Agreement at the applicable Federal rate provided for in Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in 7872(f)(2) of the following order as reasonably determined by Code (the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights"Federal Rate"); provided, however, that any non-taxable payments or benefits no amount shall be reduced last in accordance with payable by the same categorical ordering rule. In Executive to the event items described in (2) or (3) are Bank if and to be reduced, reduction shall occur in reverse chronological order the extent such that payment would not reduce the payment or benefit owed on the latest date following the occurrence amount which is subject to tax under Section 4999 of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Code. In the event that acceleration the Accounting Firm determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Bank to or for the benefit of vesting the Executive together with interest from the date of equity-based awards payment under this Agreement at the Federal Rate. (d) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in subsections (b) and (c) above shall be borne solely by the Bank. The Bank agrees to indemnify and hold harmless the Accounting Firm of and from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to subsections (b) and (c) above, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm. (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 reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect Bank to the ordering of any reduction of payments or benefits Executive pursuant to this Agreement or otherwise, such payment will be subject to, and conditioned upon, its compliance with Section 5.18(k) of the FDIA and any regulations promulgated thereunder. 18 (10k page 154)

Limitation on Payments. In Notwithstanding anything to the contrary contained in this Agreement, in the event that a Change of Control shall occur, and a final determination is made by legislation, regulation, ruling directed to the payments and other benefits provided for in this Agreement Company or otherwise payable Employee, by court decision, or by independent tax counsel selected by the Company or Employee, that the aggregate amount of any payment made to Employee (i1) constitute “parachute payments” within the meaning of Section 280G hereunder, and (2) pursuant to any plan, program or policy of the Internal Revenue Code Company in connection with, on account of, or as a result of, such Change of 1986, as amended Control (the “Code”"Total Payments") and (ii) would will be subject to the excise tax imposed by provisions of Section 4999 of the Code ("Excise Tax"), or any successor section thereof, Employee shall be entitled to receive from the Company one dollar less than the Total Payments otherwise payable to Employee that would constitute “parachute payments” under Section 4999 of the Code (the “Excise Tax”"Reduced Amount"); provided, then Employee’s payments and benefits under this Agreement or otherwise payable to Employee shall be either delivered in full (without the Company paying any portion however that if, after payment of the Excise Tax)Tax and any other federal, or delivered as state, local, and other taxes imposed on the Total Payments, the amount to such lesser extent which be paid to Employee would result in no portion of such payments and benefits being exceed the Reduced Amount, Employee shall receive the Total Payments. The Total Payments, however, shall be subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable any federal, state and local income and employment taxes and the Excise Taxthereon. For this purpose, results Employee shall be deemed to be in the receipt by highest marginal rate of federal, state and local taxes. In the event that Employee on an after-tax basis is paid the Reduced Amount, the Total Payments will be reduced in the inverse order of when the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject Total Payments would have been made to Employee until the Excise TaxReduced Amount is achieved. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized the Company’s regular independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5Section.

Limitation on Payments. In (a) Anything in the Plan or this Agreement to the contrary notwithstanding, in the event that it shall be determined that any payment or distribution by the payments and other benefits provided Bank to or for in the benefit of the Executive pursuant to the terms of the Plan or this Agreement or otherwise payable to Employee (i) a "Payment"), would constitute “an "excess parachute payments” payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”"), the aggregate present value of amounts payable or distributable to or for the benefit of the Executive pursuant to the Plan or this Agreement (such payments or distributions pursuant to the Plan or this Agreement are hereinafter 2 (10k page 113) and referred to as "Agreement Payments") shall be reduced (iibut not below zero) would to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be subject to the excise tax imposed by under Section 4999 of the Code (the “Excise Tax”)Code. For purposes of this Section 4, then Employee’s payments and benefits under this Agreement or otherwise payable to Employee present value shall be either delivered determined in full (without the Company paying any portion accordance with Section 280G(d)(4) of the Excise Tax), or delivered as Code. (b) All determinations to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required be made under this Section 5 4 shall be made in writing by a nationally-recognized an independent public national accounting firm designated by agreement between Employee and Company the Bank (the “Accountants”"Accounting Firm"), whose which firm shall provide its determinations and any supporting calculations both to the Bank and the Executive within 10 days after the date for payment of any Agreement Payment subject to reduction under this section. Any such determination by the Accounting Firm shall be conclusive and binding upon Employee the Bank and the Company for all purposesExecutive. For purposes The Executive shall then have the right to determine which of making the calculations required by Agreement Payments shall be eliminated or reduced in order to produce the Reduced Amount in accordance with the requirements of this Section 5section. Within five days after this determination, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning Bank shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of the Executive such amounts as are then due to the Executive under the Plan or this Agreement. (c) As a result of the uncertainty in the application of Section 280G and 4999 of the Code, it is possible that Agreement Payments will have been made by the Bank which should not have been made ("Overpayment") or that additional Agreement Payments which have not been made by the Bank could have been made ("Underpayment"), in each case, consistent with the calculations required to be made hereunder. The Company From time to time as the Bank or the Executive shall deem appropriate, the Accounting Firm shall review the determinations made by it pursuant to subsection (b) of this section, and Employee the Bank and the Executive shall furnish cooperate and provide all information necessary for such review. In the event that the Accounting Firm determines that an Overpayment has been made, any such Overpayment shall be treated for all purposes as a loan to the Accountants such information and documents as Executive which the Accountants may reasonably request Executive shall repay to the Bank together with interest from the date of payment under the Plan or this Agreement at the applicable Federal rate provided for in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in 7872(f)(2) of the following order as reasonably determined by Code (the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights"Federal Rate"); provided, however, that any non-taxable payments or benefits no amount shall be reduced last in accordance with 3 (10k page 114) payable by the same categorical ordering rule. In Executive to the event items described in (2) or (3) are Bank if and to be reduced, reduction shall occur in reverse chronological order the extent such that payment would not reduce the payment or benefit owed on the latest date following the occurrence amount which is subject to tax under Section 4999 of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Code. In the event that acceleration the Accounting Firm determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Bank to or for the benefit of vesting the Executive together with interest from the date of equity-based awards payment under the Plan or this Agreement at the Federal Rate. (d) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in subsections (b) and (c) above shall be borne solely by the Bank. The Bank agrees to indemnify and hold harmless the Accounting Firm of and from any and all claims, damages and expenses resulting from or relating to its determinations pursuant to subsections (b) and (c) above, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm. (e) In the event the Plan or this Agreement is subject to Section 18(k) of the Federal Deposit Insurance Act (the "FDIA") at the time any payment is to be reducedmade by the Bank to the Executive pursuant to the Plan or this Agreement or otherwise, such acceleration payment will be subject to, and conditioned upon, its compliance with Section 18(k) of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise FDIA and any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5regulations promulgated thereunder.

Limitation on Payments. In the event that the payments and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”) "), and (ii) but for this Section 5, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”or any corresponding provisions of state income tax law), then the Employee’s payments and 's severance benefits under this Agreement or otherwise payable to Employee Section 3(a) shall be either either (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis tax-basis, of the greatest greater amount of payments and severance benefits, notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized the Company's independent public accounting firm designated by agreement between Employee and Company accounts (the “"Accountants”"), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time)5. In the event that acceleration of vesting of equity-based awards is to be reducedsubsection (a) above applies, such acceleration of vesting then Employee shall be cancelled in a manner such as to obtain the best economic benefit responsible for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion excise taxes imposed with respect to such severance and other benefits. In the ordering event that subsection (b) above applies, then each benefit provided hereunder shall be proportionately reduced to the extent necessary to avoid imposition of any reduction of payments or benefits pursuant to this Section 5such excise taxes.

Limitation on Payments. In the event that the payments and other benefits provided for (i) Anything in this Agreement to the contrary notwithstanding, in the event it will be determined that any payments or otherwise payable distributions by the Company to or for the benefit of the Employee (iwhether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) constitute “parachute payments” within (collectively, the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii"Payments") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or 1986 (the “Excise Tax”"Code"), then Employee’s payments and benefits under this Agreement or otherwise payable such Payments to the Employee shall will be either delivered in full (without reduced to the Company paying any portion of the Excise Tax), or delivered largest amount as to such lesser extent which would will result in no portion of such payments and benefits Payments being subject to the Excise Tax, whichever excise tax being imposed by Section 4999 of the foregoing amountsCode; provided, taking into account the applicable federalhowever, state and local income taxes and the Excise Tax, results that such Payments shall only be reduced if such reduction would result in the receipt by Employee receiving a greater net benefit, on an after-tax basis (including after payment of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this excise tax imposed by Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and ), than the Employee shall furnish would have received had such reduction not occurred. (ii) Subject to the Accountants such information and documents as provisions of Section 7(d)(iv), the Accountants may reasonably request in order calculation required to make a determination be made under this Section 5. Any reduction 7, and the assumptions to be used in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined arriving at such calculation, must be made by the Accountants: Company's external auditors (1the "Accounting Firm"), which must provide detailed supporting calculations both to the Company and the Employee within fifteen (15) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following the occurrence business days of the event triggering receipt of notice from the Excise Tax will be Employee that there has been a Payment, or such earlier time as is requested by the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Company. In the event that acceleration the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of vesting Control, the Employee must appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will then be referred to as the "Accounting Firm" hereunder). All fees and expenses of equity-based awards is to the Accounting Firm will be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined borne solely by the AccountantsCompany. In no event Any determination by the Accounting Firm will Employee exercise any discretion with respect to be binding upon the ordering of any reduction of payments or benefits pursuant to this Section 5Company and the Employee.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee the Executive (i) constitute “parachute payments” within the meaning of Section 280G of the United States Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and Executive's benefits under this Agreement or otherwise payable to Employee shall be either either (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee otherwise agree in writing, any Any determination required under this Section 5 section shall be made in writing by a nationally-recognized the Company's independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants”), whose determination shall be conclusive and binding upon Employee the Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this section. All payments made under this Agreement shall be subject to reduction for all applicable federal, state, and local tax withholdings and any other required withholdings. Any reduction in payments and/or benefits required by this Section 5 Agreement shall occur in the following order as reasonably determined by the Accountantsorder: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (42) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights)equity awards; provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or and (3) are reduction of other benefits paid or provided to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Executive. In the event that acceleration of vesting of equity-based equity awards is to be reduced, such acceleration of vesting shall be cancelled canceled in the reverse order of the date of grant for Executive's equity awards. If two or more equity awards are granted on the same date, each award will be reduced on a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5basis.

Limitation on Payments. In the event that the payments and other benefits provided for in If any payment or benefit Executive would receive pursuant to this Agreement or otherwise payable to Employee (“Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) ), and (ii) would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable such Payment shall be reduced to Employee the Reduced Amount. The “Reduced Amount” shall be either delivered in full (without x) the Company paying any largest portion of the Excise Tax), or delivered as to such lesser extent which Payment that would result in no portion of such payments and benefits the Payment being subject to the Excise TaxTax or (y) the largest portion, up to and including the total, of the Payment, whichever of the foregoing amountsamount, after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the Excise TaxTax (all computed at the highest applicable marginal rate), results in the receipt by Employee Executive’s receipt, on an after-tax basis basis, of the greatest greater amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise TaxPayment. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by If a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or or benefits required by this Section 5 constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order as reasonably determined by unless Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) date on which the event that triggers the Payment occurs): reduction of cash payments; (3) cancellation of accelerated vesting of stock options; reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time)employee benefits. In the event that acceleration of vesting of equity-based awards stock option compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of Executive’s stock options unless Executive elects in writing a manner such as to obtain the best economic benefit different order for Employee (with reductions made pro-rata if economically equivalent), as determined cancellation The accounting firm engaged by the AccountantsCompany for general audit purposes as of the day prior to the Separation Date shall perform the foregoing calculations. In no event will Employee exercise any discretion The Company shall bear all expenses with respect to the ordering determinations by such accounting firm required to be made hereunder. The accounting 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 Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of any reduction 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 payments or benefits pursuant to this Section 5the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive.

Limitation on Payments. In If any Severance Benefits or any other of the event that the payments and other benefits provided for Total Severance Benefits (as defined in this Agreement or otherwise payable to Employee (iSection) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the ““ Excise TaxTax ”), then EmployeeExecutive’s payments and benefits under Section 7.2 of this Agreement or otherwise payable to Employee shall be either delivered (i) paid in full (without the Company paying any portion of the Excise Tax)full, or delivered (ii) paid as to such lesser extent which would result in no portion of such payments and or benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and payroll taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefitsTotal Severance Benefits, notwithstanding that all or some portion of such payments and benefits may be subject to the Excise TaxTax under Section 4999 of the Code, and further notwithstanding the fact that the Severance Benefits may be reduced to zero after the application of this Section. Unless For purposes of this Agreement, “ Total Severance Benefits ” means the Company severance payments and Employee benefits under Section 7.2 of this Agreement and all other payments and benefits received or to be received by Executive under this Agreement and all payments and benefits (if any) to which Executive may be entitled under any plan, agreement or otherwise agree upon or as the result of a Change of Control or the termination of his employment with Company, or both. This Section is not intended to prevent and shall not result in writingthe prevention of the acceleration and full vesting of any outstanding stock option, restricted stock or stock appreciation right held by Executive if any such acceleration is provided for under the terms of the award or grant agreement related to such stock option, restricted stock or stock appreciation right. Any determination required under this Section 5 shall be made in writing by a nationally-recognized Company’s independent public accounting firm designated by agreement between Employee and Company accountants (the “Accountants“ Accountants ”), whose determination shall be conclusive and binding upon Employee Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5Section.

Limitation on Payments. (a) In the event that Xxxxxxx Xxxxxxx, or any successor tax accountants to the payments and other benefits provided Company (the "Auditors") determine that any payment or distribution by the Company to or for in the benefit of the Executive, whether paid or payable (or distributed or distributable) pursuant to the terms of this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within a "Payment"), would be nondeductible by the meaning Company for federal income tax purposes because of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”) and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”"), then Employee’s payments and benefits under the aggregate present value of the amounts payable or distributable to or for the benefit of the Executive pursuant to this Agreement or otherwise payable to Employee (the "Agreement Payments") shall be either delivered in full reduced (without the Company paying any portion of the Excise Tax), or delivered as to such lesser extent which would result in no portion of such payments and benefits being subject but not below zero) to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposesReduced Amount. For purposes of making the calculations required by this Section 59, the Accountants "Reduced Amount shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. (b) If the Auditors determine that any Payment would be nondeductible by the Company because of section 280G of the Code, then the Company shall promptly give the Executive notice to that effect and a copy of the detailed calculation (hereof and of the Reduced Amount, and the Executive may make reasonable assumptions then elect, in his sole discretion, which and approximations concerning applicable taxes how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount) and shall advise the Company in writing of his election within 10 days of his receipt of notice. If no such election is made by the Executive within such 10-day period, then the Company may rely on reasonableelect which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 9, good faith interpretations concerning present value shall be determined in accordance with section 280G(d)(4) of the Code. All determinations made by the Auditors under this Section 9 shall be binding upon the Company and the Executive and shall be made within 60 days of the Executive's termination of employment. As promptly as practicable following such determination and the elections hereunder, the Company shall pay to or distribute to or for the benefit of the Executive such amounts as are then due to him under this Agreement and shall promptly pay to or distribute for the benefit of the Executive in the future such amounts as become due to him under this Agreement. (c) As a result of the uncertainty in the application of Section 280G and 4999 of the Code at the time of the initial determination by the Auditors hereunder, it is possible that Agreement Payments will have been made by the Company which should not have been made (an "Overpayment") or that additional Agreement Payments which will not have been made by the Company could have been made (an "Underpayment"), consistent in each case with the calculation of the Reduced Amount hereunder. In the event that the Auditors, based upon the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive which the Auditors believe has a high probability of success, determine that an Overpayment has been made, such Overpayment shall be treated for all purposes as a loan to the Executive which he shall repay to the Company, together with interest at the applicable federal rate provided for in section 7872 (f) (2) of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits no amount shall be reduced last in accordance with payable by the same categorical ordering rule. In Executive to the event items described in (2) or (3) are Company if and to be reduced, reduction shall occur in reverse chronological order the extent that such that payment would not reduce the payment or benefit owed on the latest date following the occurrence amount which is subject to taxation under Section 4999 of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Code. In the event that acceleration of vesting of equity-the Auditors, based awards is to be reducedupon controlling precedent, determine that an Underpayment has occurred, such acceleration of vesting Underpayment shall promptly be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined paid by the Accountants. In no event will Employee exercise any discretion Company to or for the benefit of the Executive, together with respect to interest at the ordering applicable federal rate provided for in section 7872 (f) (2) (A) of any reduction of payments or benefits pursuant to this Section 5the Code.

Limitation on Payments. a. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee the Executive (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then Employee’s payments and the Executive's severance benefits under this Agreement or otherwise payable to Employee Sections 3(a)(ii)(1)-(4) (the "Payments") shall be either delivered payable either: (i) in full full, or (without the Company paying any portion of the Excise Tax), or delivered ii) as to such lesser extent amount which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode (the "Limited Payment Amount"), whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee the Executive on an after-tax basis of the greatest amount of payments and benefitsseverance benefits under Sections 3(a)(ii)(1)-(4), notwithstanding that all or some portion of such payments and severance benefits may be taxable under Section 4999 of the Code. Unless Executive shall have given prior written notice specifying a different order to the Company to effectuate the Limited Payment Amount, the Company shall reduce or eliminate the Payments by (i) first reducing or eliminating those payments or benefits which are payable in cash and then (ii) by reducing or eliminating non-cash payments or benefits, in each case in reverse order beginning with payments or benefits which are to he paid the farthest in time from the Determination (as hereinafter defined). Any notice given by Executive pursuant to the preceding sentence shall take precedent over the provisions of any other plan, arrangement or agreement governing Executive's rights and entitlements to any benefits or compensation. b. An initial determination as to whether the Payments shall be reduced to the Limited Payment Amount and the amount of such Limited Payment Amount shall be made at the Company's expense, by the accounting firm that is the Company's independent accounting firm as of the date of the Change of Control (the "Accounting Firm"). Thc Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to the Company and Executive within ten (10) days of the Termination Date, if applicable, or such other time as requested by the Company or by Executive (provided Executive reasonably believes that any of the Payments may be subject to the Excise Tax) and, if the Accounting Firm determines that no Excise Tax is payable by Executive with respect to a Payment or Payments, it shall furnish Executive with an opinion reasonably acceptable to Executive that no Excise Tax will he imposed with respect to any such Payment or Payments. Unless Within ten (10) days of the delivery of the Determination to Executive, Executive shall have the right to dispute the Determination (the "Dispute"). If there is no Dispute, the Determination shall be binding, final and conclusive upon the Company and Employee otherwise agree in writingExecutive, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning subject to the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (15(c) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5below.

Limitation on Payments. In (a) Anything in this Agreement to the contrary notwithstanding, in the event that qualified independent certified public accountants retained by the payments and other benefits provided Company for in the purpose (the "Auditors") determine that any payment or distribution by the Company to or for the benefit of the Employee, whether paid or payable (or distributed or distributable) pursuant to the terms of this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within a "Payment"), would be nondeductible by the meaning Company for federal income tax purposes because of Section section 280G of the Internal Revenue Code of 19861954, as amended (the “"Code”) and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”"), then Employee’s payments and benefits under the aggregate present value of the amounts payable or distributable to or for the benefit of the Employee pursuant to this Agreement or otherwise payable to Employee (the "Agreement Payments") shall be either delivered reduced (but not below zero) to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in full (present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company paying any portion because of section 280G of the Excise Tax)Code. (b) If the Auditors determine that any Payment would be nondeductible by the Company because of section 280G of the Code, then the Company shall promptly give the Employee notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the Employee may then elect, in Employee's sole discretion, which and how much of the Agreement Payments shall be eliminated or delivered reduced (as to long as after such lesser extent election the aggregate present value of the Agreement Payments equals the Reduced Amount) and shall advise the Company in writing of his election within 10 days of his receipt of notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which would result in no portion and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount) and shall notify the Employee promptly of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may subject to the Excise Taxelection. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 Present values shall be made determined in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company accordance with section 280G(d) (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 4) of the Code. The All determinations made by the Auditors under this section shall be binding upon the Company and the Employee and shall be made within 60 days of the Employee's termination of employment with the Company. (c) As a result of the uncertainty in the application of section 280G of the Code at the time of the initial determination by the Auditors hereunder, it is possible that Agreement Payments will have been made by the Company which should not have been made (an "Overpayment") or that additional Agreement Payments which will not have been made by the Company could have been made (an "Underpayment"). In the event that the Auditors, based upon the assertion of a deficiency by the Internal Revenue Service against the Company or the Employee which the Auditors believe has a high probability of success, determine that an Overpayment has been made, such Overpayment shall be treated for all purposes as a loan to the Employee which Employee shall furnish repay to the Accountants such information and documents as Company, together with interest at the Accountants may reasonably request applicable federal rate provided for in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in section 7872(f)(2) of the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights)Code; provided, however, that any non-taxable payments or benefits no amount shall be reduced last in accordance with payable by the same categorical ordering rule. In Employee to the event items described in (2) or (3) are Company if and to be reduced, reduction shall occur in reverse chronological order the extent that such that payment would not reduce the payment or benefit owed on the latest date following the occurrence amount which is subject to taxation under section 4999 of the event triggering the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Code. In the event that acceleration of vesting of equity-based awards is to be reducedthe Auditors determine that an Underpayment has occurred, such acceleration of vesting Underpayment shall promptly be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined paid by the Accountants. In no event will Employee exercise any discretion Company to or for the benefit of the Employee, together with respect to interest at the ordering applicable federal rate provided for in Section 7872(f)(2)(A) of any reduction of payments or benefits pursuant to this Section 5the Code.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then the Employee’s payments and 's severance benefits under this Agreement or otherwise payable to Employee Sections 2 and 3(a)(ii) shall be either delivered payable either: (a) in full full, or (without the Company paying any portion of the Excise Tax), or delivered b) as to such lesser extent amount which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis basis, of the greatest amount of payments severance benefits under Sections 2 and benefits3(a)(ii), notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized the Company's independent public accounting firm designated by agreement between Employee and Company accountants (the “"Accountants”"), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”) "), and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “"Excise Tax”"), then Employee’s payments and Executive's benefits under this Agreement or otherwise payable to Employee shall be either (a) delivered in full (without the Company paying any portion of the Excise Tax)full, or (b) delivered as to such lesser extent which would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and benefits, notwithstanding that all or some portion of such benefits may be taxable under Section 4999 of the Code. The payments or benefits subject to any such reduction shall be reduced by Vitesse in its reasonable discretion in the following order: (i) reduction of any payments and benefits may subject otherwise payable to Executive that are exempt from Section 409A of the Excise TaxCode, and (ii) reduction of any other payments and benefits otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code, as determined by Vitesse. Unless the Company Vitesse and Employee Executive otherwise agree in writing, any determination required under this Section 5 section shall be made in writing by a nationally-recognized Vitesse's independent public accounting firm designated by agreement between Employee and Company accountants (the “"Accountants”"), whose determination shall be conclusive and binding upon Employee Executive and the Company Vitesse for all purposes. For purposes of making the calculations required by this Section 5section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company Vitesse and Employee Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5section. Any reduction Vitesse shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5section.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to the Employee (i) constitute “"parachute payments” " within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") and (ii) but for this Section, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then the Employee’s payments and 's severance benefits under this Agreement or otherwise payable to Employee Sections 2(a) and 2(b) shall be either delivered payable either: (a) in full full, or (without the Company paying any portion of the Excise Tax), or delivered b) as to such lesser extent amount which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by the Employee on an after-tax basis basis, of the greatest amount of payments severance benefits under Section 2(a) and benefits2(b), notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and the Employee otherwise agree in writing, 5 any determination required under this Section 5 4 shall be made in writing by a nationally-recognized independent public accounting firm designated accountants agreed to by agreement between the Company and the Employee and Company (the “"Accountants”"), whose determination shall be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 54, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5Section. Any reduction The Company shall bear all costs the Accountants may reasonably incur in payments and/or benefits required connection with any calculations contemplated by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountants. In no event will Employee exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5.

Limitation on Payments. (a) In the event that Employee shall become entitled to the payments and other and/or benefits provided for in by Section 10(c) or any other amounts (whether pursuant to the terms of this Agreement or otherwise payable to Employee (iany other plan, arrangement or agreement with the Company, any person whose actions result in a change of ownership covered by Section 280G(b)(2) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”") or any person affiliated with the Company or such person) as a result of a Change of Control (collectively the "Company Payments"), and (ii) would such Company Payments will be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed) the “Company shall pay to Employee at the time specified in subsection (d) below an additional amount (the "Gross-up Payment") such that the net amount retained by Employee, after deduction of any Excise Tax”Tax on the Company Payments and any federal, state, and local income or payroll tax upon the Gross-up Payment provided for by this paragraph (a), but before deduction for any federal, state, and local income or payroll tax on the Company Payments, shall be equal to the Company Payments. Notwithstanding the foregoing provisions of this Section 11 to the contrary, if it shall be determined that Employee is entitled to a Gross-up Payment, but the Company Payments do not exceed one hundred five percent (105%) of the greatest amount that could be paid to Employee such that the receipt of Company Payments would not give rise to any Excise Tax (the "Reduced Amount"), then Employee’s payments and benefits under this Agreement or otherwise payable no Gross-up Payment shall be made to Employee and the Company Payments, in the aggregate, shall be either delivered in full reduced to the Reduced Amount. (without b) For purposes of determining whether any of the Company paying any portion Payments and Gross-up Payments (collectively the "Total Payments") will be subject to the Excise Tax and determining the amount of such Excise Tax: (i) the Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Excise Tax)Code, or delivered and all "parachute payments" in excess of the "base amount" (as to such lesser extent which would result in no portion defined under Code Section 280G(b)(3) of such payments and benefits being the Code) shall be treated as subject to the Excise Tax, whichever unless and except to the extent that, in the opinion of the foregoing amountsCompany'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), taking (A) do not constitute "parachute payments," (B) represent reasonable compensation 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 (ii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. (c) For purposes of determining the amount of the Gross-up Payment, Employee 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 applicable time the Gross-up Payment is made, Employee 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 (plus the portion of the Gross-up Payment attributable to the Excise Tax and federal, state and local income taxes tax imposed on the portion of the Gross-up Payment being repaid by Employee 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 Employee, and interest payable to the Company shall not exceed the interest received or credited to Employee by such tax authority for the period it held such portion. Employee and the Company shall mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if Employee's claim for refund or credit is denied. In the event that the Excise Tax, results in Tax is later determined by the receipt 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 Employee on an after-tax basis reason of any payment the existence or amount of which cannot be determined at the time of the greatest 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 payments and benefits, notwithstanding that all such excess is finally determined. (d) The Gross-up Payment or some portion of such payments and benefits may subject thereof provided for in subsection (c) above shall be paid not later than the thirtieth (30th) day following an event occurring which subjects Employee to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 5 shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountants: (1) reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any nonif the amount of such Gross-taxable up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Employee on such day an estimate, as determined in good faith by the Accountants, of the minimum amount of such payments or benefits 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 reduced last determined, but in accordance with no event later than the same categorical ordering rule. In the event items described in ninetieth (290th) or (3) are to be reduced, reduction shall occur in reverse chronological order such that the payment or benefit owed on the latest date following day after the occurrence of the event triggering subjecting Employee to the Excise Tax will be the first payment to be reduced (with reductions made pro-rata in the event payments are owed at the same time)Tax. In the event that acceleration the amount of vesting of equity-based awards is the estimated payments exceeds the amount subsequently determined to be reducedhave been due, such acceleration of vesting excess shall be cancelled in constitute a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined loan by the Accountants. Company to Employee, 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 no the event will Employee exercise any discretion with respect to the ordering of any reduction of payments controversy with the Internal Revenue Service (or benefits pursuant other taxing authority) under this Section 11, Employee shall permit the Company to control issues related to this Section 511 (at its expense), provided that such issues do not potentially materially adversely affect Employee, but Employee shall control any other issues. In the event the issues are interrelated, Employee and the Company shall in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree, Employee 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, Employee shall permit the representative of the Company to accompany him, and Employee 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. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 4, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments and severance benefits under this Agreement or otherwise payable to Employee shall Section 2 will be either either: (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and severance benefits, notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 4 will be made in writing by a nationally-recognized the Company’s independent public accountants immediately prior to a Change in Control or a “Big Four” national accounting firm designated selected by agreement between Employee and the Company (the “Accountants”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposespurposes in the absence of manifest error. The Accountants shall provide Executive with a written report of its determinations hereunder, including reasonably detailed supporting calculations.. For purposes of making the calculations required by this Section 54, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 54. Any reduction in payments and/or benefits required by this Section 5 4 shall occur in a manner necessary to provide Executive with the following order as reasonably determined by the Accountants: (1) greatest economic benefit. If more than one manner of reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits yields the greatest economic benefit, the payments and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountantspro rata. In no event will Employee Executive exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 4. sa-71146 5.

Limitation on Payments. In the event that the payments severance and other benefits provided for in this Agreement or otherwise payable to Employee Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 4, would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”)Code, then EmployeeExecutive’s payments and severance benefits under this Agreement or otherwise payable to Employee shall Section 2 will be either either: (a) delivered in full full, or (without the Company paying any portion of the Excise Tax), or b) delivered as to such lesser extent which would result in no portion of such payments and severance benefits being subject to excise tax under Section 4999 of the Excise TaxCode, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Taxexcise tax imposed by Section 4999, results in the receipt by Employee Executive on an after-tax basis basis, of the greatest amount of payments and severance benefits, notwithstanding that all or some portion of such payments and severance benefits may subject to be taxable under Section 4999 of the Excise TaxCode. Unless the Company and Employee Executive otherwise agree in writing, any determination required under this Section 5 shall 4 will be made in writing by a nationally-recognized the Company’s independent public accountants immediately prior to a Change in Control or a “Big Four” national accounting firm designated selected by agreement between Employee and the Company (the “Accountants”), whose determination shall will be conclusive and binding upon Employee Executive and the Company for all purposespurposes in the absence of manifest error. The Accountants shall provide Executive with a written report of its determinations hereunder, including reasonably detailed supporting calculations.. For purposes of making the calculations required by this Section 54, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section Sections 280G and 4999 of the Code. The Company and Employee shall Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 54. Any reduction in payments and/or benefits required by this Section 5 4 shall occur in a manner necessary to provide Executive with the following order as reasonably determined by the Accountants: (1) greatest economic benefit. If more than one manner of reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits yields the greatest economic benefit, the payments and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards is to be reduced, such acceleration of vesting shall be cancelled in a manner such as to obtain the best economic benefit for Employee (with reductions made pro-rata if economically equivalent), as determined by the Accountantspro rata. In no event will Employee Executive exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 4. sa-71145 5.

Limitation on Payments. In the event that the payments and other benefits provided for in this Agreement If any payment or benefit Employee would receive from Employer or otherwise payable to Employee (“Payment”) would (i) constitute a “parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) , and (ii) would but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Employee’s payments and benefits under this Agreement or otherwise payable such Payment shall be reduced to Employee the Reduced Amount. The “Reduced Amount” shall be either delivered in full (without x) the Company paying any largest portion of the Excise Tax), or delivered as to such lesser extent which Payment that would result in no portion of such payments and benefits the Payment being subject to the Excise TaxTax or (y) the largest portion, up to and including the total, of the Payment, whichever of the foregoing amountsamount, after taking into account the all applicable federal, state and local employment taxes, income taxes taxes, and the Excise TaxTax (all computed at the highest applicable marginal rate), results in the receipt by Employee Employee’s receipt, on an after-tax basis basis, of the greatest greater amount of payments and benefits, the Payment notwithstanding that all or some portion of such payments and benefits the Payment may be subject to the Excise Tax. Unless If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Company and Employee otherwise agree in writingPayment equals the Reduced Amount, any determination required under this Section 5 reduction shall be made in writing by a nationally-recognized independent public accounting firm designated by agreement between Employee manner consistent with the requirements of Code Section 409A and Company (the “Accountants”), whose determination shall be conclusive and binding upon Employee and the Company for all purposes. For purposes of making the calculations required by this Section 5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 5. Any reduction in payments and/or benefits required by this Section 5 shall occur in the following order as reasonably determined by the Accountantsorder: (1) cancellation of accelerated vesting of stock awards; reduction of vesting acceleration of “out-of-the-money” stock options or stock appreciation rights, (2) employee benefits; and reduction of cash payments; (3) reduction of non-cash/non-equity-based payments or benefits and (4) reduction of vesting acceleration of equity-based awards (other than “out-of-the-money” stock options or stock appreciation rights); provided, however, that any non-taxable payments or benefits shall be reduced last in accordance with the same categorical ordering rule. In the event items described in (2) or (3) are to be reduced, reduction shall occur 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 to be reduced (with reductions made pro-rata in the event payments are owed at the same time). In the event that acceleration of vesting of equity-based awards stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of Employee’s stock awards unless Employee elects in writing a manner such different order for cancellation. The accounting firm engaged by Employer for general audit purposes as of the day prior to obtain the best economic benefit effective date of the event that triggers the Payment shall perform the foregoing calculations. If the accounting firm so engaged by Employer is serving as accountant or auditor for Employee (with reductions made pro-rata if economically equivalent)the individual, entity or group effecting the “change in ownership” as determined by described in Section 280G(b)(2)(A)(i) of the AccountantsCode, Employer shall appoint a nationally recognized accounting firm to make the determinations required hereunder. In no event will Employee exercise any discretion Employer shall bear all expenses with respect to the ordering determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to Employer and Employee within fifteen (15) calendar days after the date on which Employee’s right to a Payment is triggered (if requested at that time by Employer or Employee) or such other time as requested by Employer or Employee. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of any reduction the Reduced Amount, it shall furnish Employer and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of payments or benefits pursuant to this Section 5the accounting firm made hereunder shall be final, binding and conclusive upon Employer and Employee.