Common use of Modified Cutback Clause in Contracts

Modified Cutback. If any payment, benefit or distribution of any type to or for the benefit of Employee, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee to the Excise Tax, the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($1) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee after application of the above reduction would exceed the after-tax value of the amounts received without application of the reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, and excise taxes applicable to the amount. Subject to the next sentence, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A) to the extent such reduction or elimination would accelerate or defer the timing of the payment in manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. An initial determination as to whether (i) any of the Parachute Payments received by Employee in connection with the occurrence of a Change in Control shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this Section 8(i) shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “Accounting Firm”) prior to the consummation of the Change in Control. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employee’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the determinations and calculations have been received by the Company. For purposes of this Section 8(i):

Modified Cutback. If any payment, benefit or distribution of any type to or for the benefit of Employeethe Executive, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee the Executive to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($11.00) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided provided, that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee the Executive after application of the above reduction would exceed the after-tax value of the amounts received without application of the such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federalFederal, state, and local income, employment, employment and excise taxes applicable to the such amount. Subject to If a reduction in the next sentenceParachute Payments is required hereunder, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A) to the extent such reduction or elimination would accelerate or defer the timing of the such payment in manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. An initial determination as to whether (i) any of the Parachute Payments received by Employee in connection with the occurrence of a Change in Control shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this Section 8(i) shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “Accounting Firm”) prior to the consummation of the Change in Control. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employee’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the determinations and calculations have been received by the Company. For purposes of this Section 8(i):409A.

Modified Cutback. If any payment, benefit or distribution of any type to or for the benefit of EmployeeExecutive, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee Executive to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($11.00) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee Executive after application of the above reduction would exceed the after-tax value of the amounts received without application of the such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, employment and excise taxes applicable to the such amount. Subject Unless Executive shall have given prior written notice to the next sentenceCompany to effectuate a reduction in the Parachute Payments if such a reduction is required, any such notice consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A) to the extent such reduction or elimination would accelerate or defer the timing of the such payment in manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. 409A. (i) An initial determination as to whether (i) any of the Parachute Payments received by Employee Executive in connection with the occurrence of a Change change in Control the ownership or control of the Company or in the ownership of a substantial portion of the assets of the Company shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this pursuant to Section 8(i12(b) above, shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee Executive (the “Accounting Firm”) prior to the consummation of such change in the Change ownership or effective control of the Company or in Controlthe ownership of a substantial portion of the assets of the Company. The Employee Executive shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to EmployeeExecutive’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the such determinations and calculations have been received by the Company. . (ii) For purposes of this Section 8(i):12(b) — (A) no portion of the Parachute Payments, the receipt or enjoyment of which the Participant shall have effectively waived in writing prior to the date of payment of the Parachute Payments, shall be taken into account; (B) no portion of the Parachute Payments shall be taken into account which in the opinion of the Accounting Firm does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code; (C) the Parachute Payments shall be reduced only to the extent necessary so that the Parachute Payments (other than those referred to in the immediately preceding clause (A) or (B)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of the auditor or tax counsel referred to in such clause (B); and (D) the value of any non-cash benefit or any deferred payment or benefit included in the Parachute Payments shall be determined by the Accounting Firm based on Sections 280G and 4999 of the Code, or on substantial authority within the meaning of Section 6662 of the Code.

Modified Cutback. If any payment, benefit or distribution of any type to or for the benefit of Employeethe Holder, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement Grant Notice or otherwise (collectively, the “Parachute Payments”) would subject Employee the Holder to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($11.00) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee the Holder after application of the above reduction would exceed the after-tax value of the amounts received without application of the such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, employment and excise taxes applicable to the such amount. Subject Unless the Holder shall have given prior written notice to the next sentenceCompany to effectuate a reduction in the Parachute Payments if such a reduction is required, which notice shall be consistent with the requirements of Section 409A of the Code to avoid the imputation of any tax, penalty or interest thereunder, then the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating accelerated vesting of stock options or similar awards, then reducing or eliminating any cash severance benefits payments (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A409A of the Code) to the extent such reduction or elimination would accelerate or defer the timing of the such payment in manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. An initial determination as to whether (i) any of the Parachute Payments received by Employee in connection with the occurrence of a Change in Control shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this Section 8(i) shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “Accounting Firm”) prior to the consummation of the Change in Control. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employee’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the determinations and calculations have been received by the Company. For purposes of this Section 8(i):Code.

Modified Cutback. If any payment, benefit or distribution of any type to or for the benefit of EmployeeExecutive, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee Executive to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($11.00) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee Executive after application of the above reduction would exceed the after-tax value of the amounts received without application of the such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, employment and excise taxes applicable to the such amount. Subject Unless Executive shall have given prior written notice to the next sentenceCompany to effectuate a reduction in the Parachute Payments if such a reduction is required, any such notice consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, provided that no such reduction or elimination shall apply to any non-qualified nonqualified deferred compensation amounts (within the meaning of Section 409A) to the extent such reduction or elimination would accelerate or defer the timing of the such payment in a manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. 409A. (i) An initial determination as to whether (i) any of the Parachute Payments received by Employee Executive in connection with the occurrence of a Change change in Control the ownership or control of the Company or in the ownership of a substantial portion of the assets of the Company shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this pursuant to Section 8(i12(b) above, shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee Executive (the “Accounting Firm”) prior to the consummation of such change in the Change ownership or effective control of the Company or in Controlthe ownership of a substantial portion of the assets of the Company. The Employee Executive shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to EmployeeExecutive’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the such determinations and calculations have been received by the Company. . (ii) For purposes of this Section 8(i):12(b) - (A) no portion of the Parachute Payments, the receipt or enjoyment of which the Participant shall have effectively waived in writing prior to the date of payment of the Parachute Payments, shall be taken into account; (B) no portion of the Parachute Payments shall be taken into account which in the opinion of the Accounting Firm does not constitute a “parachute payment within the meaning of Section 280G(b)(2) of the Code; (C) the Parachute Payments shall be reduced only to the extent necessary so that the Parachute Payments (other than those referred to in the immediately preceding clause (A) or (B)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of the auditor or tax counsel referred to in such clause (B); and (D) the value of any non-cash benefit or any deferred payment or benefit included in the Parachute Payments shall be determined by the Accounting Firm based on Sections 280G and 4999 of the Code, or on substantial authority within the meaning of Section 6662 of the Code.

Modified Cutback. If (a) Notwithstanding any paymentother provision of this letter agreement, benefit or distribution of any type to or for the benefit of Employee, whether paid or payable, provided or to be providedOffer Letter, or distributed or distributable pursuant to any other agreements between you and us, except as set forth in Section 3(b) hereof, in the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee to the Excise Tax, the Parachute Payments shall be reduced so event that the maximum amount of the Parachute Payments Company undergoes a “Change in Ownership or Control” (after reduction) shall be one dollar ($1) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee after application of the above reduction would exceed the after-tax value of the amounts received without application of the reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, and excise taxes applicable to the amount. Subject to the next sentenceas defined below), the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating not be obligated to provide you a portion of any cash severance benefits “Contingent Compensation Payments” (with the payments as defined below) that you would otherwise be entitled to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A) receive to the extent such reduction or elimination would accelerate or defer the timing necessary to eliminate any “excess parachute payments” (as defined in Section 280G(b)(1) of the payment in manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. An initial determination as to whether (iCode) any of the Parachute Payments received by Employee in connection with the occurrence of a Change in Control shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this Section 8(i) shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “Accounting Firm”) prior to the consummation of the Change in Control. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employee’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the determinations and calculations have been received by the Companyfor you. For purposes of this Section 8(i):3(a), the Contingent Compensation Payments so eliminated shall be referred to as the “Eliminated Payments” and the aggregate amount (determined in accordance with Treasury Regulation Section 1.280G-1, Q/A-30 or any successor provision) of the Contingent Compensation Payments so eliminated shall be referred to as the “Eliminated Amount.” (b) Notwithstanding the provisions of Section 3(a), no such reduction in Contingent Compensation Payments shall be made if (1) the Eliminated Amount (computed without regard to this sentence) exceeds (2) 100% of the aggregate present value (determined in accordance with Treasury Regulation Section 1.280G-1, Q/A-31 and Q/A-32 or any successor provisions) of the amount of any additional taxes that would be incurred by you if the Eliminated Payments (determined without regard to this sentence) were paid to you (including, state and federal income taxes on the Eliminated Payments, the excise tax imposed by Section 4999 of the Code payable with respect to all of the Contingent Compensation Payments in excess of your “base amount” (as defined in Section 280G(b) (3) of the Code), and any withholding taxes). The override of such reduction in Contingent Compensation Payments pursuant to this Section 3(b) shall be referred to as a “Section 3(b) Override.” For purpose of this paragraph, if any federal or state income taxes would be attributable to the receipt of any Eliminated Payment, the amount of such taxes shall be computed by multiplying the amount of the Eliminated Payment by the maximum combined federal and state income tax rate provided by law. (c) For purposes of this Section 3 the following terms shall have the following respective meanings:

Modified Cutback. If any payment, benefit or distribution of any type to or for the benefit of EmployeeExecutive, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee Executive to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($11.00) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee Executive after application of the above reduction would exceed the after-tax value of the amounts received without application of the such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, employment and excise taxes applicable to the such amount. Subject Unless Executive shall have given prior written notice to the next sentenceCompany to effectuate a reduction in the Parachute Payments if such a reduction is required, any such notice consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, provided that no such reduction or elimination shall apply to any non-qualified nonqualified deferred compensation amounts (within the meaning of Section 409A) to the extent such reduction or elimination would accelerate or defer the timing of the such payment in a manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. 409A. (i) An initial determination as to whether (i) any of the Parachute Payments received by Employee Executive in connection with the occurrence of a Change change in Control the ownership or control of the Company or in the ownership of a substantial portion of the assets of the Company shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this pursuant to Section 8(i12(b) above, shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee Executive (the “Accounting Firm”) prior to the consummation of such change in the Change ownership or effective control of the Company or in Controlthe ownership of a substantial portion of the assets of the Company. The Employee Executive shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to EmployeeExecutive’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the such determinations and calculations have been received by the Company. . (ii) For purposes of this Section 8(i):12(b) — (A) no portion of the Parachute Payments, the receipt or enjoyment of which the Participant shall have effectively waived in writing prior to the date of payment of the Parachute Payments, shall be taken into account; (B) no portion of the Parachute Payments shall be taken into account which in the opinion of the Accounting Firm does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code; (C) the Parachute Payments shall be reduced only to the extent necessary so that the Parachute Payments (other than those referred to in the immediately preceding clause (A) or (B)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of the auditor or tax counsel referred to in such clause (B); and (D) the value of any non-cash benefit or any deferred payment or benefit included in the Parachute Payments shall be determined by the Accounting Firm based on Sections 280G and 4999 of the Code, or on substantial authority within the meaning of Section 6662 of the Code.

Modified Cutback. If any payment, benefit benefit, or distribution of any type to or for the benefit of Employeethe Holder, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement Grant Notice or otherwise (collectively, the “Parachute Payments”) would subject Employee the Holder to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($11.00) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee the Holder after application of the above reduction would exceed the after-tax value of the amounts received without application of the such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, employment and excise taxes applicable to the such amount. Subject Unless the Holder shall have given prior written notice to the next sentenceCompany to effectuate a reduction in the Parachute Payments if such a reduction is required, which notice shall be consistent with the requirements of Section 409A of the Code to avoid the imputation of any tax, penalty or interest thereunder, then the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating accelerated vesting of stock options or similar awards, then reducing or eliminating any cash severance benefits payments (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A409A of the Code) to the extent such reduction or elimination would accelerate or defer the timing of the such payment in a manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. An initial determination as to whether (i) any of the Parachute Payments received by Employee in connection with the occurrence of a Change in Control shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this Section 8(i) shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “Accounting Firm”) prior to the consummation of the Change in Control. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employee’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the determinations and calculations have been received by the Company. For purposes of this Section 8(i):Code.

Modified Cutback. If any payment, benefit or distribution of any type to or for the benefit of Employee, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee to the Excise Tax, the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($1) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee after application of the above reduction would exceed the after-tax value of the amounts received without application of the reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, and excise taxes applicable to the amount. Subject to the next sentence, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A) to the extent such reduction or elimination would accelerate or defer the timing of the payment in manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. An initial determination as to whether (i) any of the Parachute Payments received by Employee in connection with the occurrence of a Change in Control shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this Section 8(i) shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “"Accounting Firm”) prior to the consummation of the Change in Control. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employee’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the determinations and calculations have been received by the Company. For purposes of this Section 8(i):

Modified Cutback. If any payment, benefit or distribution of any type to or for In the benefit of Employee, whether paid or payable, provided or to event that (i) the Total Payments would be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee to the Excise Tax, and (ii) the Parachute Executive elects not to waive his right to receive a portion of the Total Payments as provided subsection (a) above, except as provided below, the Total Payments shall be reduced so that the maximum amount of the Parachute Total Payments (after reduction) shall be one dollar ($11.00) less than the amount which would cause the Parachute Total Payments to be subject to the Excise Taxexcise tax imposed by Section 4999 of the Code; provided that the Parachute Payments Total Payment shall only be reduced to the extent the after-tax value of amounts received by Employee the Executive after application of the above reduction would exceed the after-tax value of the amounts received without application of the such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, employment and excise taxes applicable to the such amount. Subject Unless the Executive shall have given prior written notice to the next sentenceCompany to effectuate a reduction in the Total Payments if such a reduction is required, any such notice consistent with the requirements of Section 409A of the Code to avoid the imputation of any tax, penalty or interest thereunder, the Company shall reduce or eliminate the Parachute Total Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Total Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within . As a result of the meaning uncertainty in the application of Section 409A) 4999 of the Code at the time of the initial determination by the Board hereunder, it is possible that Total Payments to the extent such reduction or elimination would accelerate or defer Executive which will not have been made by the timing of the payment in manner that does not comply with Company pursuant to this Section 409A. 5.7(b) should have been made (“Underpayment”). If a reduction or elimination of any Parachute Payments is requiredan Underpayment has occurred, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. An initial determination as to whether (i) any of the Parachute Payments received by Employee in connection with the occurrence of a Change in Control shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this Section 8(i) such Underpayment shall be made by an independent accounting firm selected promptly paid by the Company and reasonably acceptable to Employee (or for the “Accounting Firm”) prior to the consummation benefit of the Change in Control. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employee’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the determinations and calculations have been received by the Company. For purposes of this Section 8(i):Executive.

Modified Cutback. If any payment, benefit or distribution of any type to or for the benefit of Employeethe Executive, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee the Executive to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($11.00) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided provided, that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee the Executive after application of the above reduction would exceed the after-tax value of the amounts received without application of the such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federalFederal, state, and local income, employment, employment and excise taxes applicable to the such amount. Subject to If a reduction in the next sentenceParachute Payments is required hereunder, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A) to the extent such reduction or elimination would accelerate or defer the timing of the such payment in a manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. An initial determination as to whether (i) any of the Parachute Payments received by Employee in connection with the occurrence of a Change in Control shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this Section 8(i) shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “Accounting Firm”) prior to the consummation of the Change in Control. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employee’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the determinations and calculations have been received by the Company. For purposes of this Section 8(i):409A.

Modified Cutback. If any payment, benefit or distribution of any type to or for the benefit of Employee, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee to the Excise Tax, the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($1) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee after application of the above reduction would exceed the after-tax value of the amounts received without application of the reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, and excise taxes applicable to the amount. Subject to the next sentence, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-service- based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A) to the extent such reduction or elimination would accelerate or defer the timing of the payment in manner maimer that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. An initial determination as to whether (i) any of the Parachute Payments received by Employee in connection with the occurrence of a Change in Control shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this Section 8(i) shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “Accounting Firm”) prior to the consummation of the Change in Control. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employee’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the determinations and calculations have been received by the Company. For purposes of this Section 8(i):

Modified Cutback. If any payment, benefit or distribution of any type to or for the benefit of EmployeeExecutive, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee Executive to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($11.00) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee Executive after application of the above reduction would exceed the after-tax value of the amounts received without application of the such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, employment and excise taxes applicable to the such amount. Subject Unless Executive shall have given prior written notice to the next sentenceCompany to effectuate a reduction in the Parachute Payments if such a reduction is required, any such notice consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, provided that no such reduction or elimination shall apply to any non-qualified nonqualified deferred compensation amounts (within the meaning of Section 409A) to the extent such reduction or elimination would accelerate or defer the timing of the such payment in a manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. 409A. (i) An initial determination as to whether (i) any of the Parachute Payments received by Employee Executive in connection with the occurrence of a Change change in Control the ownership or control of the Company or in the ownership of a substantial portion of the assets of the Company shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this pursuant to Section 8(i12(b) above, shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee Executive (the “Accounting Firm”) prior to the consummation of such change in the Change ownership or effective control of the Company or in Controlthe ownership of a substantial portion of the assets of the Company. The Employee Executive shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to EmployeeExecutive’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the such determinations and calculations have been received by the Company. . (ii) For purposes of this Section 8(i):12(b) — (A) no portion of the Parachute Payments, the receipt or enjoyment of which the Participant shall have effectively waived in writing prior to the date of payment of the Parachute Payments, shall be taken into account; (B) no portion of the Parachute Payments shall be taken into account which in the opinion of the Accounting Firm does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code; (C) the Parachute Payments shall be reduced only to the extent necessary so that the Parachute Payments (other than those referred to in the immediately preceding clause (A) or (B)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of the auditor or tax counsel referred to in such clause (B); (D) the value of any non-cash benefit or any deferred payment or benefit included in the Parachute Payments shall be determined by the Accounting Firm based on Sections 280G and 4999 of the Code, or on substantial authority within the meaning of Section 6662 of the Code; and (E) to the extent that Executive has a reasonable basis to contest the determination by the Accounting Firm under this Section 12(b) and has provided reasonably satisfactory documentation setting forth in detail the basis of any such dispute, the Company shall reimburse Executive for his reasonable legal and accounting fees incurred in setting forth Executive’s position and negotiating with the Accounting Firm regarding the possible resolution of such matter.

Modified Cutback. If any payment, benefit or distribution of any type to or for the benefit of EmployeeExecutive, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee Executive to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($11.00) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee Executive after application of the above reduction would exceed the after-tax value of the amounts received without application of the such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, employment and excise taxes applicable to the such amount. Subject Unless Executive shall have given prior written notice to the next sentenceCompany to effectuate a reduction in the Parachute Payments if such a reduction is required, any such notice consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A) to the extent such reduction or elimination would accelerate or defer the timing of the such payment in manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. 409A. (i) An initial determination as to whether (i) any of the Parachute Payments received by Employee Executive in connection with the occurrence of a Change change in Control the ownership or control of the Company or in the ownership of a substantial portion of the assets of the Company shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this pursuant to Section 8(i12(b) above, shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee Executive (the “Accounting Firm”) prior to the consummation of such change in the Change ownership or effective control of the Company or in Controlthe ownership of a substantial portion of the assets of the Company. The Employee Executive shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to EmployeeExecutive’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the such determinations and calculations have been received by the Company. . (ii) For purposes of this Section 8(i):12(b) – (A) no portion of the Parachute Payments, the receipt or enjoyment of which the Participant shall have effectively waived in writing prior to the date of payment of the Parachute Payments, shall be taken into account; (B) no portion of the Parachute Payments shall be taken into account which in the opinion of the Accounting Firm does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code; (C) the Parachute Payments shall be reduced only to the extent necessary so that the Parachute Payments (other than those referred to in the immediately preceding clause (A) or (B)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of the auditor or tax counsel referred to in such clause (B); and (D) the value of any non-cash benefit or any deferred payment or benefit included in the Parachute Payments shall be determined by the Accounting Firm based on Sections 280G and 4999 of the Code, or on substantial authority within the meaning of Section 6662 of the Code.

Modified Cutback. If any payment, benefit or distribution of any type to or for the benefit of EmployeeExecutive, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee Executive to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($11.00) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee Executive after application of the above reduction would exceed the after-tax value of the amounts received without application of the such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, employment and excise taxes applicable to the such amount. Subject Unless Executive shall have given prior written notice to the next sentenceCompany to effectuate a reduction in the Parachute Payments if such a reduction is required, any such notice consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A) to the extent such reduction or elimination would accelerate or defer the timing of the payment in manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. An initial determination as to whether (i) any of the Parachute Payments received by Employee in connection with the occurrence of a Change in Control shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this Section 8(i) shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “Accounting Firm”) prior to the consummation of the Change in Control. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employee’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the determinations and calculations have been received by the Company. For purposes of this Section 8(i):qualified

Modified Cutback. If (a) Notwithstanding any payment, benefit or distribution of any type to or for the benefit of Employee, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms other provision of this Agreement or otherwise (collectivelyAgreement, except as set forth in Section 6(b), in the “Parachute Payments”) would subject Employee to the Excise Tax, the Parachute Payments shall be reduced so event that the maximum amount of the Parachute Payments Company undergoes a “Change in Ownership or Control” (after reduction) shall be one dollar ($1) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee after application of the above reduction would exceed the after-tax value of the amounts received without application of the reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, and excise taxes applicable to the amount. Subject to the next sentenceas defined below), the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating not be obligated to provide Executive a portion of any cash severance benefits “Contingent Compensation Payments” (with the payments as defined below) that Executive would otherwise be entitled to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A) receive to the extent such reduction or elimination would accelerate or defer the timing necessary to eliminate any “excess parachute payments” (as defined in Section 280G(b)(1) of the payment in manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. An initial determination as to whether (iCode) any of the Parachute Payments received by Employee in connection with the occurrence of a Change in Control shall be subject to the Excise Tax, and (ii) the amount of any reduction, if any, that may be required under this Section 8(i) shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “Accounting Firm”) prior to the consummation of the Change in Control. The Employee shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employee’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the determinations and calculations have been received by the Companyfor Executive. For purposes of this Section 8(i):6(a), the Contingent Compensation Payments so eliminated shall be referred to as the “Eliminated Payments” and the aggregate amount (determined in accordance with Treasury Regulation Section 1.280G-1, Q/A-30 or any successor provision) of the Contingent Compensation Payments so eliminated shall be referred to as the “Eliminated Amount.” (b) Notwithstanding the provisions of Section 6(a), no such reduction in Contingent Compensation Payments shall be made if (1) the Eliminated Amount (computed without regard to this sentence) exceeds (2) 100% of the aggregate present value (determined in accordance with Treasury Regulation Section 1.280G-1, Q/A-31 and Q/A-32 or any successor provisions) of the amount of any additional taxes that would be incurred by Executive if the Eliminated Payments (determined without regard to this sentence) were paid to Executive (including, state and federal income taxes on the Eliminated Payments, the excise tax imposed by Section 4999 of the Code payable with respect to all of the Contingent Compensation Payments in excess of Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code), and any withholding taxes). The override of such reduction in Contingent Compensation Payments pursuant to this Section 6(b) shall be referred to as a “Section 6(b) Override.” For purposes of this paragraph, if any federal or state income taxes would be attributable to the receipt of any Eliminated Payment, the amount of such taxes shall be computed by multiplying the amount of the Eliminated Payment by the maximum combined federal and state income tax rate provided by law. (c) For purposes of this Section 6 the following terms shall have the following respective meanings:

Modified Cutback. (a) If any payment, benefit or distribution of any type to or for the benefit of Employeethe Executive, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee the Executive to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), the Parachute Payments shall be reduced so that the maximum amount of the Parachute Payments (after reduction) shall be one dollar ($11.00) less than the amount which would cause the Parachute Payments to be subject to the Excise Tax; provided that the Parachute Payments shall only be reduced to the extent the after-tax value of amounts received by Employee the Executive after application of the above reduction would exceed the after-tax value of the amounts received without application of the such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, employment and excise taxes applicable to the such amount. Subject Unless the Executive shall have given prior written notice to the next sentenceCompany to effectuate a reduction in the Parachute Payments if such a reduction is required, which notice shall be consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder, then the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating any cash severance benefits payments (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of performance-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of performance-based restricted stock awards or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based stock options or substantially similar awards, then by reducing or eliminating any accelerated vesting of service-based restricted stock awards or substantially similar awards, then by reducing or eliminating any other remaining Parachute Payments; provided, that no such reduction or elimination shall apply to any non-qualified deferred compensation amounts (within the meaning of Section 409A) to the extent such reduction or elimination would accelerate or defer the timing of the such payment in manner that does not comply with Section 409A. If a reduction or elimination of any Parachute Payments is required, Employee may change the order in which the Parachute Payments are reduced or eliminated by giving prior written notice to the Company, if such notice is consistent with the requirements of Section 409A to avoid the imputation of any tax, penalty or interest thereunder. 409A. (b) An initial determination as to whether (ix) any of the Parachute Payments received by Employee the Executive in connection with the occurrence of a Change change in Control the ownership or control of the Company or in the ownership of a substantial portion of the assets of the Company shall be subject to the Excise Tax, and (iiy) the amount of any reduction, if any, that may be required under this Section 8(i) pursuant to the previous paragraph, shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “Accounting Firm”) prior to the consummation of such change in the Change ownership or effective control of the Company or in Controlthe ownership of a substantial portion of the assets of the Company. The Employee Executive shall be furnished with notice of all determinations made as to the Excise Tax payable with respect to Employeethe Executive’s Parachute Payments, together with the related calculations of the Accounting Firm, promptly after the such determinations and calculations have been received by the Company. . (c) For purposes of this Section 8(i):5.18, (i) no portion of the Parachute Payments the receipt or enjoyment of which the Executive shall have effectively waived in writing prior to the date of payment of the Parachute Payments shall be taken into account; (ii) no portion of the Parachute Payments shall be taken into account which in the opinion of the Accounting Firm does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code; (iii) the Parachute Payments shall be reduced only to the extent necessary so that the Parachute Payments (other than those referred to in the immediately preceding clause (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of the auditor or tax counsel referred to in such clause (ii); and (iv) the value of any non-cash benefit or any deferred payment or benefit included in the Parachute Payments shall be determined by the Company’s independent auditors based on Sections 280G and 4999 of the Code and the regulations for applying those sections of the Code, or on substantial authority within the meaning of Section 6662 of the Code.