Common use of Parachute Payments Clause in Contracts

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" within the meaning of Section 280G(b)(2) of the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratio.

Parachute Payments. (a) Anything If any payment or benefit (including payments or benefits pursuant to this Agreement) that Executive would receive in any section connection with a Change in Control or otherwise (“Payment”) would (1) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (2) but for this Agreement other than this Section 11 sentence, be subject to the contrary notwithstandingexcise tax imposed by Section 4999 of the Code (the “Excise Tax”), in the event it then such Payment shall be determined equal to the Reduced Amount. The "Reduced Amount" shall be either (x) the largest portion of the Payment that any would result in no portion of the Payment being subject to the Excise Tax or (as hereinafter definedy) would the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive's receipt, on an after-tax basis, of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax (as hereinafter defined)Tax. If a reduction in payments or benefits constituting "parachute payments" is necessary so that the Payment equals the Reduced Amount, Executive shall have no rights to any additional payments and/or benefits, and reduction shall occur in the manner that results in the greatest economic benefit for Executive. If more than one method of reduction will result in the same economic benefit, the right to receive any Payment under this Agreement shall items so reduced will be reduced if but only if:pro rata. (ib) such right In the event it is subsequently determined by the Internal Revenue Service that some portion of the Reduced Amount as determined pursuant to such Payment, taking into account all other Payments to or for Participant, would cause any Payment clause (x) in the preceding paragraph is subject to the Participant under this Agreement Excise Tax, Executive agrees to be considered promptly return to the Company a "parachute payment" within sufficient amount of the meaning Payment so that no portion of the Reduced Amount is subject to the Excise Tax. For the avoidance of doubt, if the Reduced Amount is determined pursuant to clause (y) in the preceding paragraph, Executive will have no obligation to return any portion of the Payment pursuant to the preceding sentence. (c) The independent registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the event described in Section 280G(b)(2280G(b)(2)(A)(i) of the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, will perform the aggregate after-tax amounts received foregoing calculations. If the independent registered public accounting firm so engaged by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is serving as accountant or auditor for the individual, entity or group effecting such Change in Control or similar transaction, the Company will appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company will bear all expenses with respect to the determinations by such independent registered public accounting firm required to be reduced by this Section 11made hereunder. Any good faith determinations of the independent registered public accounting firm made hereunder will be final, such reduction shall be implemented by determining binding and conclusive upon the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment Company and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratioyou.

Parachute Payments. If Independent Tax Counsel (aas that term is defined below) Anything in any section of this Agreement other than this Section 11 determines that the aggregate payments and benefits provided or to be provided to the contrary notwithstandingExecutive pursuant to this Agreement, and any other payments and benefits provided or to be provided to the Executive from the Company or any of its subsidiaries or other affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the event it shall be determined Code (“Parachute Payments”) that any Payment (as hereinafter defined) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax (as hereinafter definedTax”), then, except as otherwise provided in the right to receive any Payment under this Agreement next sentence, such Parachute Payments shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" within extent the meaning of Section 280G(b)(2) of the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement Independent Tax Counsel shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company determine is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis necessary (but not below zero) prior so that no portion thereof shall be subject to reducing parachute the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(d), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(d) shall be final and binding on all parties hereto. For purposes of this Section 5(d), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a lower Parachute Payment Rationationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company.

Parachute Payments. (a) 7.2.1 Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event that a Change in Control occurs and it shall be determined that any Payment (as hereinafter defined) would be subject to payment or distribution by the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments Company or its Affiliates to or for Participantthe benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, would cause any Payment to the Participant under this Agreement to be considered a "constitute an “excess parachute payment" ” within the meaning of Section 280G(b)(2) section 280G of the Code (each such payment, a “Parachute Payment”) and would result in the imposition on the Employee of an excise tax under section 4999 of the Code, then, in addition to any other benefits to which the Employee is entitled under this Agreement or otherwise, the Employee shall be paid an amount in cash equal to the sum of the excise taxes payable by the Employee by reason of receiving Parachute Payments plus the amount necessary to place the Employee in the same after-tax position (taking into account any and all applicable federal, state and local excise, income or other taxes at the highest possible applicable rates on such Parachute Payments (including, without limitation, any payments under this Subparagraph 7.2(a)) as if no excise taxes had been imposed with respect to Parachute Payments (the “Parachute Gross-up”). In no event shall a Parachute Gross-up be payable under this subparagraph 7.2.1 in the absence of a Change in Control. Any Parachute Gross-up otherwise required by this Subparagraph 7.2(a) shall not be made later than the time of the corresponding payment or benefit hereunder giving rise to the underlying section 4999 of the Code excise tax (to the extent such determination has been made prior to such time), even if the payment of the excise tax is not required under the Code until a later time. Any Parachute Gross-up otherwise required under this Subparagraph 7.2(a) shall be made whether or not payments or benefits are payable under this Agreement, and whether or not the Employee’s employment with the Company shall have been terminated. 7.2.2 All determinations to be made under this Subparagraph 7.2 shall be made by an independent public accounting firm chosen by the Company (the “Accounting Firm”). 7.2.3 In the event the Internal Revenue Service notifies the Employee of an inquiry with respect to the applicability of section 280G of the Code or section 4999 of the Code to any payment by the Company or its Affiliates, or assessment of tax under section 4999 of the Code with respect to any payment by the Company or its Affiliates, the Employee shall provide notice to the Company of such inquiry or assessment within 10 days, and shall take no action with respect to such inquiry or assessment until the Company has responded thereto (provided such response is timely with respect to the inquiry or assessment). The Company shall have the right to appoint an attorney or accountant to represent the Employee with respect to such inquiry or assessment, and the Employee shall fully cooperate with such representative as a condition of receiving a Parachute Gross-up with respect to such inquiry or assessment. 7.2.4 All of the fees and expenses of the Accounting Firm in performing the determinations referred to in Subparagraphs (a) and (b) above, or of the representative appointed pursuant to Subparagraph (c) above, shall be borne solely by the Company. 7.2.5 Notwithstanding the foregoing, if the imposition of a Code section 4999 of the Code excise tax could be avoided by a reduction of the payments due to the Employee (determined before application of Subparagraph 7.2(a)) by an amount of 10% or less, then in effect; andthe total of all such payments shall be reduced to an amount one dollar ($1.00) below the amount that would cause a section 4999 of the Code excise tax to be imposed, and Subparagraph 7.2(a) shall not apply. (ii) 7.2.6 To the extent necessary to eliminate a Parachute Payment, the amounts payable or benefits to be provided to the Employee shall be reduced such that the economic loss to the Employee as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereonthe Parachute Payment elimination is minimized. In applying this principle, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments made in order beginning a manner consistent with the parachute payment with requirements of section 409A of the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment RatioCode and where two economically equivalent amounts are subject to reduction but payable at different times, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero. 7.2.7 Notwithstanding any provision of this Subparagraph 7.2 to the contrary, in accordance with the requirements of section 409A of the Code, any Parachute Gross-Up payable hereunder shall be paid not later than the end of the calendar year next following the calendar year in which the Employee or Company (as applicable) prior to reducing parachute payments with a lower remits the taxes for which the Parachute Payment RatioGross-Up is being paid.

Parachute Payments. If any payment or benefit (aincluding payments and benefits pursuant to this Agreement) Anything that Executive would receive in any section connection with a Change in Control from the Company or otherwise (“Transaction Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this Agreement other than this Section 11 sentence, be subject to the contrary notwithstandingexcise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Company shall cause to be determined, before any amounts of the Transaction Payment are paid to Service Provider, which of the following two alternative forms of payment would result in Service Provider’s receipt, on an after-tax basis, of the event it shall be determined greater amount of the Transaction Payment notwithstanding that any all or some portion of the Transaction Payment (as hereinafter defined) would may be subject to the Excise Tax: (1) payment in full of the entire amount of the Transaction Payment (a “Full Payment”), or (2) payment of only a part of the Transaction Payment so that Service Provider receives the largest payment possible without the imposition of the Excise Tax (as hereinafter defineda “Reduced Payment”). For purposes of determining whether to make a Full Payment or a Reduced Payment, the right Company shall cause to receive be taken into account all applicable federal, state and local income and employment taxes and the Excise Tax (all computed at the highest applicable marginal rate, net of the maximum reduction in federal income taxes which could be obtained from a deduction of such state and local taxes). If a Reduced Payment is made, (x) Executive shall have no rights to any additional payments and/or benefits constituting the Transaction Payment, and (y) reduction in payments and/or benefits shall occur in the manner that results in the greatest economic benefit to Executive as determined in this paragraph. If more than one method of reduction will result in the same economic benefit, the portions of the Transaction Payment under this Agreement shall be reduced if but only if: pro rata. Unless Executive and the Company otherwise agree in writing, any determination required under this section shall be made in writing by the Company’s independent public accountants (i) such right to such Paymentthe “Accountants”), taking into account whose determination shall be conclusive and binding upon Executive and the Company for all other Payments to or for Participantpurposes. For purposes of making the calculations required by this section, would cause any Payment the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. Executive and the Company shall furnish to the Participant Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Agreement to be considered a "parachute payment" within section. The Company shall bear all costs the meaning of Section 280G(b)(2) Accountants may reasonably incur in connection with any calculations contemplated by this section as well as any costs incurred by Executive with the Accountants for tax planning under Sections 280G and 4999 of the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioCode.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in In the event it that (i) any severance payment, insurance benefits, accelerated vesting, pro-rated bonus or other benefit payable to Executive shall be determined that any Payment constitute a “parachute payment” within the meaning of Code Section 280G (as hereinafter defined“Parachute Payment”) would and be subject to the excise tax imposed by Code Section 4999 (the “Excise Tax”), and (ii) if the payments to Executive were reduced to the minimum extent necessary so that such payments did not constitute Parachute Payments, the net benefits retained by Executive after the deduction of any federal, state or local income taxes would be greater than the net benefits retained by Executive if there was no such reduction after the deduction of Excise Tax and any federal, state or local income taxes, then such payments shall be so reduced. Such reduction shall be accomplished in any manner deemed appropriate by Playa Management after consultation with Executive. For purposes of making the foregoing determination: (1) Parachute Payments provided under arrangements with Executive other than this Agreement, if any, shall be taken into account in determining the total amount of Parachute Payments received by Executive so that the amount of Parachute Payments that are attributable to provisions of this Agreement is maximized; and (2) Executive shall be deemed to pay federal, state and local income taxes at the highest marginal rate of taxation for Executive’s taxable year in which the Parachute Payments are includable in Executive’s income for purposes of federal, state and local income taxation. The determination of whether the Excise Tax is payable, and the amount of any reduction necessary to make the Excise Tax not payable, as hereinafter definedwell as whether such a reduction would result in greater after-tax benefits to Executive, shall be made in writing in good faith by a nationally-recognized independent certified public accounting firm approved by Playa Management and Executive, such approval not to be unreasonably withheld (the “Accounting Firm”). For purposes of making the calculations required by this Section 11(a), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement extent not otherwise specified herein, reasonable assumptions and approximations may be made with respect to be considered a "parachute payment" within the meaning of Section 280G(b)(2) applicable taxes and reasonable, good faith interpretations of the Code may be relied upon. Playa Management and Executive shall furnish such information and documents as then may be reasonably requested in effect; and (ii) as a result connection with the performance of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company calculations under this Agreement and Section 11(a). Playa Management shall bear all Payments would be less than costs incurred in connection with the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) performance of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced calculations contemplated by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratio11(a).

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in In the event it that (i) any severance payment, insurance benefits, accelerated vesting, pro-rated bonus or other benefit payable to Executive shall be determined that any Payment constitute a “parachute payment” within the meaning of Code Section 280G (as hereinafter defined“Parachute Payment”) would and be subject to the excise tax imposed by Code Section 4999 (the “Excise Tax”), and (ii) if the payments to Executive were reduced to the minimum extent necessary so that such payments did not constitute Parachute Payments, the net benefits retained by Executive after the deduction of any federal, state or local income taxes would be greater than the net benefits retained by Executive if there was no such reduction after the deduction of Excise Tax and any federal, state or local income taxes, then such payments shall be so reduced. Such reduction shall be accomplished in any manner deemed appropriate by Flora Management after consultation with Executive. For purposes of making the foregoing determination: (1) Parachute Payments provided under arrangements with Executive other than this Agreement, if any, shall be taken into account in determining the total amount of Parachute Payments received by Executive so that the amount of Parachute Payments that are attributable to provisions of this Agreement is maximized; and (2) Executive shall be deemed to pay federal, state and local income taxes at the highest marginal rate of taxation for Executive’s taxable year in which the Parachute Payments are includable in Executive’s income for purposes of federal, state and local income taxation. The determination of whether the Excise Tax is payable, and the amount of any reduction necessary to make the Excise Tax not payable, as hereinafter definedwell as whether such a reduction would result in greater after-tax benefits to Executive, shall be made in writing in good faith by a nationally-recognized independent certified public accounting firm approved by Flora Management and Executive, such approval not to be unreasonably withheld (the “Accounting Firm”). For purposes of making the calculations required by this Section 11(a), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement extent not otherwise specified herein, reasonable assumptions and approximations may be made with respect to be considered a "parachute payment" within the meaning of Section 280G(b)(2) applicable taxes and reasonable, good faith interpretations of the Code may be relied upon. Flora Management and Executive shall furnish such information and documents as then may be reasonably requested in effect; and (ii) as a result connection with the performance of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company calculations under this Agreement and Section 11(a). Flora Management shall bear all Payments would be less than costs incurred in connection with the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) performance of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced calculations contemplated by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratio11(a).

Parachute Payments. (a) 6.7.1 Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event that a Change in Control occurs and it shall be determined that any Payment (as hereinafter defined) would be subject to payment or distribution by the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments Company or its Affiliates to or for Participantthe benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, would cause any Payment to the Participant under this Agreement to be considered a "constitute an “excess parachute payment" ” within the meaning of Section 280G(b)(2) section 280G of the Code (each such payment, a “Parachute Payment”) and would result in the imposition on the Employee of an excise tax under section 4999 of the Code, then, in addition to any other benefits to which the Employee is entitled under this Agreement or otherwise, the Employee shall be paid an amount in cash equal to the sum of the excise taxes payable by the Employee by reason of receiving Parachute Payments plus the amount necessary to place the Employee in the same after-tax position (taking into account any and all applicable federal, state and local excise, income or other taxes at the highest possible applicable rates on such Parachute Payments (including, without limitation, any payments under this Subparagraph 6.7.1) as if no excise taxes had been imposed with respect to Parachute Payments (the “Parachute Gross-up”). In no event shall a Parachute Gross-up be payable under this subparagraph 6.7.1 in the absence of a Change in Control. Any Parachute Gross-up otherwise required by this Subparagraph 6.7.1 shall not be made later than the time of the corresponding payment or benefit hereunder giving rise to the underlying section 4999 of the Code excise tax (to the extent such determination has been made prior to such time), even if the payment of the excise tax is not required under the Code until a later time. Any Parachute Gross-up otherwise required under this Subparagraph 6.7.1 shall be made, whether or not payments or benefits are payable under this Agreement, and whether or not the Employee’s employment with the Company shall have been terminated. 6.7.2 All determinations to be made under this Subparagraph 6.7 shall be made by an independent public accounting firm chosen by the Company (the “Accounting Firm”). 6.7.3 In the event the Internal Revenue Service notifies the Employee of an inquiry with respect to the applicability of sections 280G or 4999 of the Code to any payment by the Company or its Affiliates, or assessment of tax under section 4999 of the Code with respect to any payment by the Company or its Affiliates, the Employee shall provide notice to the Company of such inquiry or assessment within 10 days, and shall take no action with respect to such inquiry or assessment until the Company has responded thereto (provided such response is timely with respect to the inquiry or assessment). The Company shall have the right to appoint an attorney or accountant to represent the Employee with respect to such inquiry or assessment, and the Employee shall fully cooperate with such representative as a condition of receiving a Parachute Gross-up with respect to such inquiry or assessment. 6.7.4 All of the fees and expenses of the Accounting Firm in performing the determinations referred to in subparagraphs 6.7.1 and 6.7.2 above, or of the representative appointed pursuant to Subparagraph 6.7.3 above, shall be borne solely by the Company. 6.7.5 Notwithstanding the foregoing, if the imposition of a section 4999 of the Code excise tax could be avoided by a reduction of the payments due to the Employee (determined before application of Subparagraph 6.7.1) by an amount of 10% or less, then in effect; andthe total of all such payments shall be reduced to an amount one dollar ($1.00) below the amount that would cause a section 4999 of the Code excise tax to be imposed, and Subparagraph 6.7.1 shall not apply. (ii) 6.7.6 To the extent necessary to eliminate a Parachute Payment, the amounts payable or benefits to be provided to the Employee shall be reduced such that the economic loss to the Employee as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereonthe Parachute Payment elimination is minimized. In applying this principle, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments made in order beginning a manner consistent with the parachute payment with requirements of section 409A of the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment RatioCode and where two economically equivalent amounts are subject to reduction but payable at different times, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero. 6.7.7 Notwithstanding any provision of this Subparagraph 6.7 to the contrary, in accordance with the requirements of section 409A of the Code, any Parachute Gross-Up payable hereunder shall be paid not later than the end of the calendar year next following the calendar year in which the Employee or Company (as applicable) prior to reducing parachute payments with a lower remits the taxes for which the Parachute Payment RatioGross-Up is being paid.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event that it shall be determined that any Payment (as hereinafter defined) would be subject to payment or distribution by the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments Company or its Affiliates to or for Participantthe benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, would cause any Payment to the Participant under this Agreement to be considered a "constitute an “excess parachute payment" ” within the meaning of Section 280G(b)(2) §280G of the Internal Revenue Code of 1986, as then amended (the “Code”) (each such payment, a “Parachute Payment”) and would result in effect; and (ii) as a result the imposition on the Employee of an excise tax under Code §4999, then, in addition to any other benefits to which the Employee is entitled under this Agreement or otherwise, the Employee shall be paid an amount in cash equal to the sum of the excise taxes payable by the Employee by reason of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, Parachute Payments plus the aggregate amount necessary to place the Employee in the same after-tax amounts received by position (taking into account any and all applicable federal, state and local excise, income or other taxes at the Participant from the Company highest possible applicable rates on such Parachute Payments (including, without limitation, any payments under this Agreement and all subparagraph 11.2(a)) as if no excise taxes had been imposed with respect to Parachute Payments would (the “Parachute Gross-up”). Any Parachute Gross-up otherwise required by this subparagraph 11.2(a) shall not be less made later than the maximum aftertime of the corresponding payment or benefit hereunder giving rise to the underlying Code §4999 excise tax (to the extent such determination has been made prior to such time), even if the payment of the excise tax is not required under the Code until a later time. Any Parachute Gross-tax amount that could up otherwise required under this subparagraph 11.2(a) shall be received by Participant without causing any such Payment to be considered made whether or not there is a parachute payment. In the event that the receipt of any such right to Payment Change in Control, whether or not payments or benefits are payable under this Agreement, whether or not the payments or benefits giving rise to the Parachute Gross-up are made in conjunction respect of a Change in Control and whether or not the Employee’s employment with all other Payments, would cause the Participant Employer shall have been terminated. (b) All determinations to be considered to have received a parachute payment made under this Agreement that would subparagraph 11.2 shall be made by an independent public accounting firm chosen by the Company (the “Accounting Firm”). (c) In the event the Internal Revenue Service notifies the Employee of an inquiry with respect to the applicability of Code §280G or Code §4999 to any payment by the Company or its Affiliates, or assessment of tax under Code §4999 with respect to any payment by the Company or its Affiliates, the Employee shall provide notice to the Company of such inquiry or assessment within 10 days, and shall take no action with respect to such inquiry or assessment until the Company has responded thereto (provided such response is timely with respect to the inquiry or assessment). The Company shall have the effect right to appoint an attorney or accountant to represent the Employee with respect to such inquiry or assessment, and the Employee shall fully cooperate with such representative as a condition of decreasing receiving a Parachute Gross-up with respect to such inquiry or assessment. (d) All of the after-tax amount received fees and expenses of the Accounting Firm in performing the determinations referred to in subparagraphs (a) and (b) above, or of the representative appointed pursuant to subparagraph (c) above, shall be borne solely by the Participant as described in clause Company. (iie) Notwithstanding the foregoing, if the imposition of a Code §4999 excise tax could be avoided by a reduction of the preceding sentencepayments due to the Employee (determined before application of subparagraph 11.2(a)) by an amount of 10% or less, then the amounts payable under this Agreement shall total of all such payments will be reduced so to an amount one dollar ($1.00) below the amount that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required would cause a Code §4999 excise tax to be reduced by this Section 11imposed, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter definedand subparagraph 11.2(a) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but will not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratioapply.

Parachute Payments. If Independent Tax Counsel (aas that term is defined below) Anything in any section of this Agreement other than this Section 11 determines that the aggregate payments and benefits provided or to be provided to the contrary notwithstandingExecutive pursuant to this Agreement, and any other payments and benefits provided or to be provided to the Executive from the Company or any of its subsidiaries or other affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the event it shall be determined Code (“Parachute Payments”) that any Payment (as hereinafter defined) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax (as hereinafter definedTax”), then, except as otherwise provided in the right to receive any Payment under this Agreement next sentence, such Parachute Payments shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" within extent the meaning of Section 280G(b)(2) of the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement Independent Tax Counsel shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company determine is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis necessary (but not below zero) prior so that no portion thereof shall be subject to reducing parachute the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(f), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(f) shall be final and binding on all parties hereto. For purposes of this Section 5(f), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a lower Parachute Payment Rationationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company. The Executive shall have the right, at the Executive’s own expense, to retain Independent Tax Counsel to rebut any decision made by the Company’s Independent Tax Counsel, who may consider such rebuttal before making its final and binding determination.

Parachute Payments. (ai) Anything in any section It is the objective of this Agreement to maximize Key Colleague’s Net After-Tax Benefit (as defined herein) if payments or benefits provided under this Agreement are subject to excise tax under Code Section 4999. Notwithstanding any other than provisions of this Section 11 to the contrary notwithstandingAgreement, in the event it shall be determined that any Payment payment or benefit by the Company or otherwise to or for the benefit of Key Colleague, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (all such payments and benefits, including the payments and benefits under Section 3(a) or 3(b) above, being hereinafter referred to as hereinafter definedthe “Total Payments”), would be subject (in whole or in part) would to the excise tax imposed by Code Section 4999 (the “Excise Tax”), then the payments and benefits shall thereafter be reduced in accordance with Section 3(g)(ii) below, to the extent necessary so that no portion of the Total Payments shall be subject to the Excise Tax Tax, but only if (A) the net amount of such Total Payments, as hereinafter definedso reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (B) the right net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to receive any Payment which Key Colleague would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). (ii) To the extent required under this Agreement Section 3(g)(i) above, the Total Payments shall be reduced if by the Company in the following order: (A) reduction of any cash severance payments otherwise payable to Key Colleague that are exempt from Code Section 409A, (B) reduction of any other cash payments or benefits otherwise payable to Key Colleague that are exempt from Code Section 409A, but only if:excluding any payments attributable to the acceleration of vesting or payments with respect to any equity award with respect to the Company’s common stock that is exempt from Code Section 409A, (C) reduction of any other payments or benefits otherwise payable to Key Colleague on a pro-rata basis or such other manner that complies with Code Section 409A, but excluding any payments attributable to the acceleration of vesting and payments with respect to any equity award with respect to the Company’s common stock that are exempt from Code Section 409A and (D) reduction of any payments attributable to the acceleration of vesting or payments with respect to any other equity award with respect to the Company’s common stock that are exempt from Code Section 409A. (iiii) such right All determinations regarding the application of this Section 3(g) shall be made by an accounting firm with experience in performing calculations regarding the applicability of Code Section 280G and the Excise Tax selected by the Company (“Independent Advisors”). For purposes of determining whether and the extent to such Payment, taking into account all other which the Total Payments to or for Participant, would cause any Payment will be subject to the Participant under this Agreement Excise Tax, (A) no portion of the Total Payments the receipt or enjoyment of which Key Colleague shall have waived at such time and in such manner as not to be considered constitute a "parachute “payment" ” within the meaning of Code Section 280G(b) shall be taken into account, (B) no portion of the Total Payments shall be taken into account which, in the opinion of the Independent Advisors, does not constitute a “parachute payment” within the meaning of Code Section 280G(b)(2) of the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including by reason of Code Section 280G(b)(4)(A)) and in calculating the Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all no portion of such Total Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Paymentstaken into account which, in the aggregateopinion of Independent Advisors, equals constitutes reasonable compensation for services actually rendered, within the Safe Harbor Amount. To the extent that the payment meaning of any compensation or benefits to Executive from the Company is required to be reduced by this Code Section 11280G(b)(4)(B), such reduction shall be implemented by determining in excess of the “Parachute Payment Ratiobase amount” (as hereinafter defineddefined in Section Code 280G(b)(3)) for each parachute allocable to such reasonable compensation and (C) the value of any non-cash benefit or any deferred payment and then reducing or benefit included in the parachute payments Total Payments shall be determined by the Independent Advisors in order beginning accordance with the parachute payment with the highest Parachute Payment Ratioprinciples of Code Sections 280G(d)(3) and (4). For parachute payments with the same Parachute Payment Ratio, The costs of obtaining such parachute payments determination and all related fees and expenses (including related fees and expenses incurred in any later audit) shall be reduced based on borne by the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioCompany.

Parachute Payments. (a) Anything Notwithstanding anything contained in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to the contrary, the Company, based on the advice of its legal or tax counsel, shall compute whether there would be considered a "any “excess parachute payment" payments” payable to Executive, within the meaning of Section 280G(b)(2) 280G of the Code as then in effect; and (ii) as a result Code, taking into account the total ‘‘parachute payments,” within the meaning of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereonSection 280G of the Code, the aggregate after-tax amounts received payable to Executive by the Participant from the Company under this Agreement and all Payments any other plan, agreement or otherwise. If there would be any excess parachute payments, the Company, based on the advice of its legal or tax counsel, shall compute the net after-tax proceeds related to such parachute payments, taking into account the excise tax imposed by Section 4999 of the Code, as if: (i) such parachute payments were reduced, but not below zero, such that the total parachute payments payable to Executive would not exceed three (3) times the “base amount” as defined in Section 280G of the Code, less than One Dollar ($1.00); or (ii) the maximum full amount of such parachute payments were not reduced. If reducing the amount of such parachute payments otherwise payable would result in a greater after-tax amount that could to Executive, such reduced amount shall be received by Participant without causing any paid to Executive and the remainder shall be forfeited. If not reducing such Payment to be considered parachute payments otherwise payable would result in a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the greater after-tax amount received to Executive, then such parachute payments shall not be reduced. If such parachute payments are reduced pursuant to the foregoing, they will be reduced in the following order: first, by reducing any cash severance payments, then by reducing any fringe or other severance benefits, and finally by reducing any payments or benefits otherwise payable with respect to, or measured by, the Participant as described Company’s common stock (including without limitation by eliminating accelerated vesting, in clause (ii) each case starting with the installment or tranche last eligible to become vested absent the occurrence of a change in control). Notwithstanding the foregoing, to the extent the Parties agree that any of the preceding sentenceforegoing amounts are not parachute payments, then the such amounts payable under this Agreement shall not be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amountreduced. To the extent that the payment Parties cannot agree as to whether any of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments are in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such fact parachute payments, the Parties will designate, by mutual agreement, an unrelated third-party with amounts having later payment dates being reduced firsttax expertise to make the determination. For parachute payments with Notwithstanding any provision of this Section 3.2(d) to the same Parachute Payment Ratio and the same time of paymentcontrary, such parachute payments no amount shall be reduced on subject to reduction pursuant to this Section 3.2(d) to the extent the reduction would result in a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratioviolation of any applicable law.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 10 to the contrary notwithstandingnot- withstanding, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" within the meaning of Code Section 280G(b)(2) of the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) Tax thereon), the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 1110, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratio.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to In the event of the consummation of a change in ownership or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" control (within the meaning of Section 280G(b)(2280G of the Code and the regulations thereunder (“Section 280G”)) (a “280G Change in Control”) of the Company occurring on or prior to the second anniversary of the Amendment Date, payments and benefits under this Agreement, together with other payments and benefits provided to you by the Company (including, without limitation, any accelerated vesting of stock options, shares of restricted stock or other equity-based awards) (the “Total Payments”), shall be made without regard to whether the deductibility of the Total Payments would be limited or precluded by Section 280G and without regard to whether the Total Payments would subject you to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the Total Payments constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments (or portions thereof) being hereinafter referred to as then the “Excess Parachute Payments”), the Company shall promptly pay to you an additional amount (the “Gross-up Payment”) that after imposition of all taxes (including but not limited to the Excise Tax) with respect to such Gross-up Payment equals the Excise Tax with respect to the Excess Parachute Payments. Notwithstanding any provision to the contrary herein, any tax gross-up payment described herein shall be paid no later than the time specified in effect; and§1.409A-3(i)(1)(v). (ii) as In the event of the consummation of a result 280G Change in Control of receiving the Company occurring after the second anniversary of the Amendment Date, the provisions of this Section 5(d)(ii) shall apply in lieu of the provisions of Section 5(d)(i) above. If all or a parachute payment and paying any portion of the Total Payments would constitute Excess Parachute Payments, you will be entitled to receive (A) an amount limited so that no portion thereof shall fail to be tax deductible under Section 280G of the Code (the “Limited Amount”), or (B) if the amount otherwise payable hereunder or otherwise (without regard to clause (A)) reduced by all taxes applicable tax thereto (including including, for the avoidance of doubt, the Excise Tax) thereonwould be greater than the Limited Amount reduced by all taxes applicable thereto, the aggregate afteramount otherwise payable hereunder. (iii) The determination as to whether the Total Payments include Excess Parachute Payments and, if so, the amount of such Excess Parachute Payments, the amount of any Excise Tax with respect thereto, the amount of any Gross-tax amounts received up Payment, if applicable, and the amount of any reduction in Total Payments shall be made at the Company’s expense by the Participant from independent public accounting firm most recently serving as the Company’s outside auditors or such other accounting or benefits consulting group or firm as the Company under this Agreement and all Payments would be less than may designate (the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment“Accountants”). In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment payments under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is otherwise are required to be reduced as described in Section 5(d)(ii), the adjustment will be made, first, by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with amount of base salary payable pursuant to Section 5(a)(i)(A) or the parachute payment with amount of base salary and bonus payable pursuant to Section 5(c)(ii)(A), as applicable; second, if additional reductions are necessary, by reducing the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of or reimbursement for COBRA premiums due to you pursuant to Section 5(a)(i)(C) or Section 5(c)(ii)(C), as applicable; and third, if additional reductions are still necessary, by eliminating the accelerated vesting of time-based equity-based awards or the vesting of performance-based equity-based awards, if any, starting with those awards for which the amount required to be taken into account under Section 280G is the greatest. (iv) In the event that there has been an underpayment or overpayment under this Agreement or otherwise as determined by the Accountants, the amount of such parachute paymentsunderpayment or overpayment shall forthwith be paid to you or refunded to the Company, as the case may be, with amounts having later payment dates being reduced first. For parachute payments with interest at the same Parachute Payment Ratio and applicable federal rate provided for in Section 7872(f)(2) of the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioCode.

Parachute Payments. (a) Anything in Notwithstanding any section other provision of this Agreement other than this Section 11 3, if it is determined that part or all of the compensation or benefits to be paid to the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment Employee under this Agreement shall be reduced if but only if: (i) such right to such Paymentin connection with the Employee's Severance Termination, taking into account all or under any other Payments to plan, arrangement or for Participantagreement, would cause any Payment to the Participant under this Agreement to be considered constitutes a "parachute payment" within under IRC §280G(b)(2), then the meaning of Section 280G(b)(2) of the Code as then in effect; and (ii) as a result of receiving amount constituting a parachute payment and paying any that would otherwise be payable to or for the benefit of the Employee shall be reduced (if required under such applicable tax (including Excise Tax) thereonlaw), but only to the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments extent necessary, so that such amount would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered not constitute a parachute payment. In the event that the receipt of any such right to Payment under this Agreementa reduction is required, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute cash payments shall be reduced based on the time of payment of such parachute paymentsfirst, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments then compensation and benefits not payable in cash shall be reduced on reduced, in each case in reverse order beginning with payments or benefits that are to be paid the farthest in time from the date of the reduction and in each case after giving effect to any payments and benefits that may have been received prior to termination. Any determination that a pro rata basis payment constitutes a parachute payment shall be made as promptly as practicable following the Employee's termination of employment (but not below zerolater than the date payment is required under subsection (b) of this Section) by the Tax Adviser (at the expense of the Corporation), whose determination shall be final and binding in all cases. Unless the Employee is given notice that a payment (or payments) will constitute a parachute payment prior to reducing the earlier of (1) receipt of such payments or (2) the [tenth] business day following his or her Severance Termination, no payment (or payments) shall be deemed to constitute a parachute payment. If the determination made pursuant to this subsection would result in a reduction, the Tax Adviser also shall determine which and how much of any particular entitlement shall be so reduced (to the extent required under such applicable law), in each case after giving effect to any payments with a lower Parachute Payment Ratioand benefits that may have been received prior to such termination, and shall advise the Employee and Corporation in writing within ___ days of the determination of the reduction in payments.

Parachute Payments. If Independent Tax Counsel (aas that term is defined below) Anything in any section of this Agreement other than this Section 11 determines that the aggregate payments and benefits provided or to be provided to the contrary notwithstandingExecutive pursuant to this Agreement, and any other payments and benefits provided or to be provided to the Executive from the Company or any of its subsidiaries or other affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the event it shall be determined Code (“Parachute Payments”) that any Payment (as hereinafter defined) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax (as hereinafter definedTax”), then, except as otherwise provided in the right to receive any Payment under this Agreement next sentence, such Parachute Payments shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" within extent the meaning of Section 280G(b)(2) of the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement Independent Tax Counsel shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company determine is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis necessary (but not below zero) prior so that no portion thereof shall be subject to reducing parachute the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 5(f), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the following order (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. The determination of the Independent Tax Counsel under this Section 5(f) shall be final and binding on all parties hereto. For purposes of this Section 5(f), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a lower Parachute Payment Rationationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Board, and whose fees and disbursements shall be paid by the Company.

Parachute Payments. (a) Anything Notwithstanding anything contained in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to the contrary, the Company, based on the advice of its legal or tax counsel, shall compute whether there would be considered a "any “excess parachute payment" payments” payable to Executive, within the meaning of Section 280G(b)(2) 280G of the Code as then in effect; and (ii) as a result Code, taking into account the total ‘‘parachute payments,” within the meaning of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereonSection 280G of the Code, the aggregate after-tax amounts received payable to Executive by the Participant from the Company under this Agreement and all Payments any other plan, agreement or otherwise. If there would be any excess parachute payments, the Company, based on the advice of its legal or tax counsel, shall compute the net after-tax proceeds related to such parachute payments, taking into account the excise tax imposed by Section 4999 of the Code, as if (i) such parachute payments were reduced, but not below zero, such that the total parachute payments payable to Executive would not exceed three (3) times the “base amount” as defined in Section 280G of the Code, less than One Dollar ($1.00), or (ii) the maximum full amount of such parachute payments were not reduced. If reducing the amount of such parachute payments otherwise payable would result in a greater after-tax amount that could to Executive, such reduced amount shall be received by Participant without causing any paid to Executive and the remainder shall be forfeited. If not reducing such Payment to be considered parachute payments otherwise payable would result in a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the greater after-tax amount received to Executive, then such parachute payments shall not be reduced. If such parachute payments are reduced pursuant to the foregoing, they will be reduced in the following order: first, by reducing any cash severance payments, then by reducing any fringe or other severance benefits, and finally by reducing any payments or benefits otherwise payable with respect to, or measured by, the Participant as described Company’s common stock (including without limitation by eliminating accelerated vesting, in clause (ii) each case starting with the installment or tranche last eligible to become vested absent the occurrence of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, Change in Control (as defined in the aggregateCompany’s 2014 Incentive Plan)). Notwithstanding the foregoing, equals to the Safe Harbor Amountextent the parties agree that any of the foregoing amounts are not parachute payments, such amounts shall not be reduced. To the extent that the payment parties cannot agree as to whether any of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments are in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such fact parachute payments, the parties will designate, by mutual agreement, an unrelated third-party with amounts having later payment dates being reduced firsttax expertise to make the determination. For parachute payments with Notwithstanding any provision of this Section 3.2(d) to the same Parachute Payment Ratio and the same time of paymentcontrary, such parachute payments no amount shall be reduced on subject to reduction pursuant to this Section 3.2(d) to the extent the reduction would result in a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratioviolation of any applicable law.

Parachute Payments. (a) Anything in Notwithstanding any section other provision of this Agreement or of any other than agreement, contract, or understanding heretofore or hereafter entered into by the Executive and the Company or its Affiliates, except an agreement, contract, or understanding hereafter entered into that expressly modifies or excludes application of this Section 11 to (the contrary notwithstanding“Other Agreements”), and notwithstanding any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company or any of its Affiliates for the direct or indirect compensation of the Executive (including groups or classes of participants or beneficiaries of which the Executive is a member), whether or not such compensation is deferred, is in cash, or is in the event it shall be determined that any Payment form of a benefit to or for the Executive (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defineda “Benefit Arrangement”), if the Executive is a “disqualified individual,” as defined in Section 280G(c) of the Code, any right to receive any Payment payment or other benefit under this Agreement shall be reduced if but only if: not become payable, exercisable or vested (i) to the extent that such right to such Paymentpayment, exercise, vesting, or benefit, taking into account all other Payments rights, payments, or benefits to or for ParticipantExecutive under the Agreement, all Other Agreements, and all Benefit Arrangements, would cause any Payment payment or benefit to the Participant Executive under this Agreement to be considered a "“parachute payment" ” within the meaning of Section 280G(b)(2) of the Code as then in effect; and effect (a “Parachute Payment”) and (ii) if, as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereonParachute Payment, the aggregate after-tax amounts received by the Participant Executive from the Company or any of its Affiliates under this Agreement Agreement, all Other Agreements, and all Payments Benefit Arrangements would be less than the maximum after-tax amount that could be received by Participant Executive without causing any such Payment payment or benefit to be considered a parachute paymentParachute Payment. In the event that the receipt of any such right to Payment exercise, vesting, payment, or benefit under this Agreement, in conjunction with all other Paymentsrights, payments, or benefits to or for the Executive under the Agreement, any Other Agreement or any Benefit Arrangement would cause the Participant Executive to be considered to have received a parachute payment Parachute Payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant Executive as described in clause (ii) of the preceding sentence, then the amounts payable Executive shall have the right, in the Executive’s sole discretion, to designate those rights, payments, or benefits under this Agreement, any Other Agreements, and any Benefit Arrangements that should be reduced or eliminated so as to avoid having the payment or benefit to the Executive under this Agreement be deemed to be a Parachute Payment; provided, however, that, to the extent any payment or benefit constitutes deferred compensation under Code Section 409A, to the extent necessary to comply with Code Section 409A, the reduction or elimination will be performed in the following order: (A) reduction of cash payments; (B) reduction of COBRA benefits; (C) cancellation of acceleration of vesting on any equity awards for which the exercise price exceeds the then fair market value of the underlying equity; and (D) cancellation of acceleration of vesting of equity awards not covered under (C) above; provided, however that in the event that acceleration of vesting of equity awards is to be cancelled, such acceleration of vesting shall be reduced so that the Parachute Value of all Payments, cancelled in the aggregatereverse order of the date of grant of such equity awards, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11is, such reduction later granted equity awards shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratiocanceled before earlier granted equity awards.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in In the event that it shall be determined that any Payment payment or distribution in the nature of compensation (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would constitute a “parachute payment” as defined in 280G(b)(2) of the Code as (a “Parachute Payment”), then the Payments will be reduced in effect; andaccordance with this Section 7 if, and only to the extent that, a reduction will allow the Executive to receive a greater Net After Tax Amount than the Executive would receive absent a reduction. (iib) as An independent registered public accounting firm selected by the Company immediately prior to the Change of Control (the “Accounting Firm”) will first determine the total amount of any Parachute Payments that are payable to the Executive. The Accounting Firm also will determine the Net After Tax Amount attributable to the Executive’s total Parachute Payments. (c) The Accounting Firm will next determine the largest amount of Payments that may be made to or on behalf of the Executive without subjecting the Executive to tax under Section 4999 of the Code (the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. (d) The Executive will receive the total Parachute Payments or the Capped Parachute Payments, whichever provides the Executive with the higher Net After Tax Amount. If the Executive will received the Capped Payments, the total Parachute Payments will be adjusted by first reducing any Payments that do not constitute “deferred compensation” under Section 409A of the Code (by first reducing any such Payments that are not payable in cash and then by reducing the amount of any such Payments that are payable in cash) and next, if necessary, by reducing any Payments that do constitute “deferred compensation” under Section 409A of the Code (by first reducing any such Payments that are not payable in cash and then by reducing the amount of any such Payments that are payable in cash). The Accounting Firm will notify the Executive and the Company if it determines that the Parachute Payments must be reduced to the Capped Payments and will send the Executive and the Company a copy of its detailed calculations supporting that determination and showing the Payments that will be reduced. (e) As a result of receiving the uncertainty in the application of Sections 280G and 4999 of the Code at the time the Accounting Firm makes its determinations under this Section 7, it is possible that amounts will have been paid or distributed to the Executive that should not have been paid or distributed under this Section 7 (“Overpayments”) or that additional amounts should be paid or distributed to the Executive under this Section 7 (“Underpayments”). If the Accounting Firm determines, based on either the assertion of a parachute payment and paying any applicable tax (including Excise Tax) thereondeficiency by the Internal Revenue Service against the Company or the Executive, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, the aggregate after-tax amounts received Accounting Firm will notify the Executive and the Company of that determination and the Executive must repay the Overpayment to the Company, without interest; provided, however, that no amount will be payable by the Participant from Executive unless, and then only to the extent that, the repayment would either reduce the amount on which the Executive is subject to tax under Section 4999 of the Code or generate a refund of tax imposed under Section 4999 of the Code. If the Accounting Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the Accounting Firm will notify the Executive and the Company of that determination and the amount of the Underpayment will be paid to the Executive, without interest, promptly by the Company. (f) For purposes of this Section 7, the term “Net After Tax Amount” means that amount of any Parachute Payments or Capped Payments, as applicable, net of taxes imposed under this Agreement Sections 1, 3101(b) and all Payments would be less than 4999 and any State or local income taxes applicable to the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute Executive on the date of payment. In The determination of the event that Net After Tax Amount shall be made using the receipt highest combined effective rate imposed by the foregoing taxes on income of any such right to Payment under this Agreementthe same character as the Parachute Payments or Capped Payments, as applicable, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time date of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratio.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to In the event of the consummation of a change in ownership or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" control within the meaning of Section 280G(b)(2280G (a “280G Change in Control”) of the Company following the time that the Company has stock readily tradeable on an established securities market (within the meaning of Section 280G and the regulations thereunder), if all or a portion of the payments and benefits under this Letter Agreement, together with any other payments and benefits provided to you by the Company or its Affiliates (including, without limitation, any accelerated vesting of stock options and other equity awards) (the “Total Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments (or portions thereof) being hereinafter referred to as the “Excess Parachute Payments”), you will be entitled to receive (A) an amount limited so that no portion thereof shall fail to be tax deductible under Section 280G (the “Limited Amount”), or (B) if the amount otherwise payable hereunder or otherwise (without regard to clause (A)) reduced by all taxes applicable thereto (including, for the avoidance of doubt, the excise tax levied under Section 4999 of the Code as then in effect; and(the “Excise Tax”)) would be greater than the Limited Amount reduced by all taxes applicable thereto, the amount otherwise payable hereunder or otherwise. (ii) The determination as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereonto whether the Total Payments include Excess Parachute Payments and, if so, the aggregate after-tax amounts received amount of such Excess Parachute Payments, the amount of any Excise Tax with respect thereto, and the amount of any reduction in Total Payments shall be made at the Company’s expense by the Participant from independent public accounting firm most recently serving as the Company’s outside auditors or such other accounting, law or benefits consulting group or firm as the Company under this Agreement and all Payments would be less than may designate (the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment“Accountants”). In the event that the receipt of any such right to Payment payments under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Letter Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is otherwise are required to be reduced as described in Section 10(e)(i) of this Letter Agreement, the adjustment will be made, first, by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with amount of base salary payable pursuant to Section 10(a)(i) or 10(b)(i), as applicable; second, if additional reductions are necessary, by reducing the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of the amounts due to you pursuant to Section 10(a)(ii) as applicable; and third, if additional reductions are still necessary, by eliminating the accelerated vesting of stock option awards and other equity awards, if any, starting with those awards for which the amount required to be taken into account under Section 280G is the greatest. (iii) In the event that there has been an underpayment or overpayment under this Letter Agreement or otherwise as determined by the Accountants, the amount of such parachute paymentsunderpayment or overpayment shall forthwith be paid to you or refunded to the Company, as the case may be, with amounts having later payment dates being reduced first. For parachute payments with interest at the same Parachute Payment Ratio and applicable federal rate provided for in Section 7872(f)(2) of the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioCode.

Parachute Payments. (a) Anything in Best Pay Provision. In the event that any section of this Agreement other than this Section 11 payment or benefit received or to be received by you pursuant to the contrary notwithstandingterms of any plan, arrangement or agreement (including any payment or benefit received in connection with a change in ownership or control or the event it shall be determined that any Payment termination of your employment) (all such payments and benefits being hereinafter referred to as hereinafter definedthe “Total Payments”) would be subject (in whole or part) to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, then the Total Payments shall be reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as hereinafter definedso reduced (after subtracting the amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which you would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). Except to the extent that an alternative reduction order would result in a greater economic benefit to you on an after-tax basis, the right to receive any Payment under this Agreement Parties intend that the Total Payments shall be reduced if in the following order: (w) reduction of any cash severance payments otherwise payable to you that are exempt from Section 409A of the Code, (x) reduction of any other cash payments or benefits otherwise payable to you that are exempt from Section 409A of the Code, but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause excluding any Payment payment attributable to the Participant under this Agreement acceleration of vesting or payment with respect to be considered a "parachute payment" within the meaning of any equity award that is exempt from Section 280G(b)(2) 409A of the Code as then in effect; and Code, (iiy) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt reduction of any other payments or benefits otherwise payable to you on a pro-rata basis or such right other manner that complies with Section 409A of the Code, but excluding any payment attributable to Payment under this Agreementthe acceleration of vesting and payment with respect to any equity award that is exempt from Section 409A of the Code, and (z) reduction of any payments attributable to the acceleration of vesting or payment with respect to any equity award that is exempt from Section 409A of the Code; provided, in conjunction with all other Paymentscase of clauses (x), would cause (y) and (z), that reduction of any payments or benefits attributable to the Participant to be considered to have received a parachute payment under this Agreement that would have the effect acceleration of decreasing the after-tax amount received by the Participant as described in clause (ii) vesting of the preceding sentence, then the amounts payable under this Agreement Company equity awards shall be reduced so that first applied to equity awards with later vesting dates; provided, further, that, notwithstanding the Parachute Value of all Paymentsforegoing, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining undertaken in a manner that complies with and does not result in the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing imposition of additional taxes on you under Section 409A of the parachute payments in order beginning with the parachute payment with the highest Parachute Payment RatioCode. For parachute payments with the same Parachute Payment Ratio, such parachute payments The foregoing reductions shall be reduced based made in a manner that results in the maximum economic benefit to you on an after-tax basis and, to the time of payment of such parachute paymentsextent economically equivalent payments or benefits are subject to reduction, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on in a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratiomanner.

Parachute Payments. (ai) Anything in Notwithstanding any section other provision of this Agreement other than this Section 11 to the contrary notwithstandingAgreement, in the event it shall be determined that any Payment payment or benefit received or to be received by Executive (including any payment or benefit received in connection with a termination of Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits set forth herein, being hereinafter referred to as hereinafter definedthe “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Code Section 4999 (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G in such other plan, arrangement or agreement, the cash Severance benefits under this Agreement shall first be reduced, and any noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (A) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (B) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). (ii) For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax Tax, (as hereinafter defined)A) no portion of the Total Payments, the right receipt or retention of which Executive has waived at such time and in such manner so as not to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered constitute a "parachute “payment" ” within the meaning of Code Section 280G(b), will be taken into account; (B) no portion of the Total Payments will be taken into account which, in the written opinion of an independent, nationally recognized accounting firm (the “Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Code Section 280G(b)(2) of the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including by reason of Code Section 280G(b)(4)(A)) and, in calculating the Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all no portion of such Total Payments would will be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Paymentstaken into account which, in the aggregateopinion of Independent Advisors, equals constitutes reasonable compensation for services actually rendered, within the Safe Harbor Amount. To the extent that the payment meaning of any compensation or benefits to Executive from the Company is required to be reduced by this Code Section 11280G(b)(4)(B), such reduction shall be implemented by determining in excess of the “Parachute Payment Ratiobase amount” (as hereinafter defineddefined in Code Section 280G(b)(3)) for each parachute allocable to such reasonable compensation; and (C) the value of any non-cash benefit or any deferred payment and then reducing or benefit included in the parachute payments Total Payments shall be determined by the Independent Advisors in order beginning accordance with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time principles of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio Code Sections 280G(d)(3) and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratio4).

Parachute Payments. (a) Anything in Notwithstanding any section other provision of this Agreement or of any other than agreement, contract, or understanding heretofore or hereafter entered into by the Executive and the Company or its Affiliates, except an agreement, contract, or understanding hereafter entered into that expressly modifies or excludes application of this Section 11 to (the contrary notwithstanding“Other Agreements”), and notwithstanding any formal or informal plan or other arrangement heretofore or hereafter adopted by the Company or any of its Affiliates for the direct or indirect compensation of the Executive (including groups or classes of participants or beneficiaries of which the Executive is a member), whether or not such compensation is deferred, is in cash, or is in the event it shall be determined that any Payment form of a benefit to or for the Executive (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defineda “Benefit Arrangement”), if the Executive is a “disqualified individual,” as defined in Section 280G(c) of the Code, any right to receive any Payment payment or other benefit under this Agreement shall be reduced if but only if: not become payable, exercisable or vested (i) to the extent that such right to such Paymentpayment, exercise, vesting, or benefit, taking into account all other Payments rights, payments, or benefits to or for ParticipantExecutive under the Agreement, all Other Agreements, and all Benefit Arrangements, would cause any Payment payment or benefit to the Participant Executive under this Agreement to be considered a "“parachute payment" ” within the meaning of Section 280G(b)(2) of the Code as then in effect; and effect (a “Parachute Payment”) and (ii) if, as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereonParachute Payment, the aggregate after-tax amounts received by the Participant Executive from the Company or any of its Affiliates under this Agreement Agreement, all Other Agreements, and all Payments Benefit Arrangements would be less than the maximum after-tax amount that could be received by Participant Executive without causing any such Payment payment or benefit to be considered a parachute paymentParachute Payment. In the event that the receipt of any such right to Payment exercise, vesting, payment, or benefit under this Agreement, in conjunction with all other Paymentsrights, payments, or benefits to or for the Executive under the Agreement, any Other Agreement or any Benefit Arrangement would cause the Participant Executive to be considered to have received a parachute payment Parachute Payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant Executive as described in clause (ii) of the preceding sentence, then the amounts payable Executive shall have the right, in the Executive’s sole discretion, to designate those rights, payments, or benefits under this Agreement, any Other Agreements, and any Benefit Arrangements that should be reduced or eliminated so as to avoid having the payment or benefit to the Executive under this Agreement be deemed to be a Parachute Payment; provided, however, that, to the extent any payment or benefit constitutes deferred compensation under Code Section 409A, to the extent necessary to comply with Code Section 409A, the reduction or elimination will be performed in the following order: (A) reduction of cash payments; (B) reduction of COBRA benefits; (C) cancellation of acceleration of vesting on any equity awards for which the exercise price exceeds the then fair market value of the underlying equity; and (D) cancellation of acceleration of vesting of equity awards not covered under (C) above; provided, however that in the event that acceleration of vesting of equity awards is to be cancelled, such acceleration of vesting shall be reduced so that the Parachute Value of all Payments, cancelled in the aggregatereverse order of the date of grant of such equity awards, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11is, such reduction later granted equity awards shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratiocanceled before earlier granted equity awards.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in In the event that it shall be determined that any Payment payment or distribution in the nature of compensation (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would constitute a “parachute payment” as defined in 280G(b)(2) of the Code as (a “Parachute Payment”), then the Payments will be reduced in effect; andaccordance with this Section 7 if, and only to the extent that, a reduction will allow the Executive to receive a greater Net After Tax Amount than the Executive would receive absent a reduction. (iib) as An independent registered public accounting firm selected by the Company immediately prior to the Change of Control (the “Accounting Firm”) will first determine the total amount of any Parachute Payments that are payable to the Executive. The Accounting Firm also will determine the Net After Tax Amount attributable to the Executive's total Parachute Payments. (c) The Accounting Firm will next determine the largest amount of Payments that may be made to or on behalf of the Executive without subjecting the Executive to tax under Section 4999 of the Code (the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. (d) The Executive will receive the total Parachute Payments or the Capped Parachute Payments, whichever provides the Executive with the higher Net After Tax Amount. If the Executive will received the Capped Payments, the total Parachute Payments will be adjusted by first reducing any Payments that do not constitute “deferred compensation” under Section 409A of the Code (by first reducing any such Payments that are not payable in cash and then by reducing the amount of any such Payments that are payable in cash) and next, if necessary, by reducing any Payments that do constitute “deferred compensation” under Section 409A of the Code (by first reducing any such Payments that are not payable in cash and then by reducing the amount of any such Payments that are payable in cash). The Accounting Firm will notify the Executive and the Company if it determines that the Parachute Payments must be reduced to the Capped Payments and will send the Executive and the Company a copy of its detailed calculations supporting that determination and showing the Payments that will be reduced. (e) As a result of receiving the uncertainty in the application of Sections 280G and 4999 of the Code at the time the Accounting Firm makes its determinations under this Section 7, it is possible that amounts will have been paid or distributed to the Executive that should not have been paid or distributed under this Section 7 (“Overpayments”) or that additional amounts should be paid or distributed to the Executive under this Section 7 (“Underpayments”). If the Accounting Firm determines, based on either the assertion of a parachute payment and paying any applicable tax (including Excise Tax) thereondeficiency by the Internal Revenue Service against the Company or the Executive, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, the aggregate after-tax amounts received Accounting Firm will notify the Executive and the Company of that determination and the Executive must repay the Overpayment to the Company, without interest; provided, however, that no amount will be payable by the Participant from Executive unless, and then only to the extent that, the repayment would either reduce the amount on which the Executive is subject to tax under Section 4999 of the Code or generate a refund of tax imposed under Section 4999 of the Code. If the Accounting Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the Accounting Firm will notify the Executive and the Company of that determination and the amount of the Underpayment will be paid to the Executive, without interest, promptly by the Company. (f) For purposes of this Section 7, the term “Net After Tax Amount” means that amount of any Parachute Payments or Capped Payments, as applicable, net of taxes imposed under this Agreement Sections 1, 3101(b) and all Payments would be less than 4999 and any State or local income taxes applicable to the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute Executive on the date of payment. In The determination of the event that Net After Tax Amount shall be made using the receipt highest combined effective rate imposed by the foregoing taxes on income of any such right to Payment under this Agreementthe same character as the Parachute Payments or Capped Payments, as applicable, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time date of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratio.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in In the event it shall be determined that any Payment portion of the Total Payments payable to Employee under Section 3(g) (as hereinafter defined"Change in Control") would constitute an "excess parachute payment" within the meaning of Code Section 280G(b) that, but for this section, would be subject to the excise tax imposed on so-called excess parachute payments pursuant to Code Section 4999 (an "Excise Tax (as hereinafter definedTax"), then the right to receive any Payment payments otherwise payable under this Agreement shall will be reduced if but only ifto the largest amount payable to Employee which would result in no portion of the Total Payments being subject to the Excise Tax. (b) For purposes of this section: (i) such right No portion of the Total Payments, the receipt or enjoyment of which Employee has effectively waived in writing prior to such Paymentthe date of payment, taking will be taken into account; (ii) No portion of the Total Payments will be taken into account all other Payments which, in the opinion of tax counsel selected by Company and reasonably acceptable to or for ParticipantEmployee ("Tax Counsel"), would cause any Payment to the Participant under this Agreement to be considered does not constitute a "parachute payment" within the meaning of Code Section 280G(b)(2280G; (iii) If Employee and Company disagree whether any payment will result in an Excise Tax, the matter will be conclusively resolved by an opinion of Tax Counsel; (iv) The value of any noncash benefit or any deferred payment or benefit included in the Total Payments, and whether or not all or a portion of any payment or benefit is a "parachute payment" for purposes of this Section, will be determined by Company's independent accountants in accordance with the principles of Sections 280G(d)(3) and (4) of the Code as then Internal Revenue Code. (c) In the event that any other agreement, plan, or arrangement provides for Other Payments (an "Other Agreement"), Company and Employee agree that the Other Payment governed by such Other Agreement will be subject to the reduction in effectpayments under Section 4(a). To the extent possible, Company and Employee agree that reductions in benefits under any plan, program, or arrangement of Company will be reduced (only to the extent described in Section 4(a)) in the following order of priority: (i) Cash payments under this Agreement; (ii) Any cash payments under any Other Agreement; and (iiiii) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, The acceleration in the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt exercisability or vesting of any such right to Payment under this Agreement, in conjunction with all stock option or other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received stock related award granted by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioCompany.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to If the contrary notwithstanding, in the event it shall be determined Company determines that any Payment (as hereinafter defined) amounts payable under this Agreement, either alone or together with other compensation, would be subject to the Excise Tax (as hereinafter defined)excise tax imposed on “excess parachute payments” under Section 4999 of the Code, the right Company shall compute the amount that would be payable to receive any Payment Executive if the total amounts that are payable to Executive by the Company and are considered “parachute payments” for purposes of Code Section 280G (“Parachute Payments”) were limited to the maximum amount that may be paid to Executive under Code Sections 280G and 4999 without imposition of the excise tax (this amount is referred to as the “Capped Amount”). The Company will also compute the amount that would be payable under the Agreement without regard to the Code Sections 280G and 4999 limit (this amount is referred to as the “Uncapped Amount”). Notwithstanding anything in this Agreement to the contrary, if the Uncapped Amount is less than 110% of the Capped Amount, then the total benefits and other amounts that are considered Parachute Payments and are payable to Executive under this Agreement shall will be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement Capped Amount. If the Capped Amount is to be considered a "parachute payment" within the meaning of Section 280G(b)(2) of the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereonpaid, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced in the following order: (i) any cash severance based on a multiple of Base Salary or Annual Bonus, (ii) any other cash amounts payable to Executive, (iii) any benefits valued as Parachute Payments, (iv) acceleration of vesting on any stock awards for which the time exercise price exceeds the then fair market value and (v) acceleration of payment vesting of such parachute any equity not covered by section (iv) above, unless Executive elects another method of reduction of written notice to the Company prior to a Change in Control. If, after application of the preceding paragraph, any payments, distributions or benefits Executive would receive from the Company or otherwise, but determined without regard to any additional payment required under this Section 3.2, pursuant to the terms of this Agreement (“Payments”), would (i) constitute Parachute Payments, and (ii) be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable with amounts having later payment dates being reduced first. For parachute payments respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the same Parachute Payment Ratio and the same time of payment“Excise Tax”), such parachute payments then Executive shall be reduced entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount that shall fund the payment by Executive of any Excise Tax on a pro rata basis (but not below zero) the Payments as well as all income and employment taxes imposed on the Gross-Up Payment, any Excise Tax imposed on the Gross-Up Payment and any interest or penalties imposed with respect to income and employment taxes imposed on the Gross-Up Payment. The accounting firm engaged by the Company for general audit purposes as of the day prior to reducing parachute payments the effective date of the Change in Control, or a nationally recognized accounting firm of the Company’s choosing, shall perform the foregoing calculations. The Company shall bear all expenses with a lower Parachute respect to the 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 the Payments 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 the Payments, 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 Payments. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive. Any Gross-Up Payment Ratioto which Executive becomes entitled under this Section 3.2 shall be made to Executive no later than the calendar year next following the calendar year in which Executive remits the taxes to which such Gross-Up Payment relates.

Parachute Payments. (a) Anything in If it is determined (as hereafter provided) that by reason of any section payment or Option vesting occurring pursuant to the terms of this Agreement (or otherwise under any other than this Section 11 to agreement, plan or program) upon a Change in Control (collectively a "Payment") the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) Executive would be subject to the Excise Tax excise tax imposed by Code Section 4999 or successor provision (as hereinafter definedthe "Parachute Tax"), then the right Executive shall be entitled to receive an additional payment or payments (a "Gross-Up Payment") in an amount such that, after payment by the Executive of all taxes (including any Parachute Tax) imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Parachute Tax imposed upon the Payment. (b) Subject to the provisions of Section 8(a) hereof, all determinations required to be made under this Section 8, including whether a Parachute Tax is payable by the Executive and the amount of such Parachute Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by the nationally recognized firm of certified public accountants (the "Accounting Firm") used by the Company prior to the Change in Control (or, if such Accounting Firm declines to serve, the Accounting Firm shall be a nationally recognized firm of certified public accountants selected by the Executive). The Accounting Firm shall be directed by the Company or the Executive to submit its preliminary determination and detailed supporting calculations to both the Company and the Executive within 15 calendar days after the determination date, if applicable, and any other such time or times as may be requested by the Company or the Executive. If the Accounting Firm determines that any Parachute Tax is payable by the Executive, the Company shall pay the required Gross-Up Payment to, or for the benefit of, the Executive within five business days after receipt of such determination and calculations. If the Accounting Firm determines that no Parachute Tax is payable by the Executive, it shall, at the same time as it makes such determination, furnish the Executive with an opinion that he has substantial authority not to report any Parachute Tax on his federal tax return. Any good faith determination by the Accounting Firm as to the amount of the Gross-Up Payment shall be binding upon the Company and the Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce the Company's obligation to provide any Gross-Up Payments that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Code Section 4999 at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Company should have been made (an "Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts or fails to pursue its remedies pursuant to Section 8(f) hereof and the Executive thereafter is required to make a payment of any Parachute Tax, the Executive shall direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Company and the Executive as promptly as possible. Any such Underpayment shall be promptly paid by the Company to, or for the benefit of, the Executive within five business days after receipt of such determination and calculations. (c) The Company and the Executive shall each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or the Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by Section 8(b) hereof. (d) The federal tax returns filed by the Executive (or any filing made by a consolidated tax group which includes the Company) shall be prepared and filed on a basis consistent with the determination of the Accounting Firm with respect to the Parachute Tax payable by the Executive. The Executive shall make proper payment of the amount of any Parachute Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of his federal income tax return as filed with the Internal Revenue Service, and such other documents reasonably requested by the Company, evidencing such payment. If prior to the filing of the Executive's federal income tax return, the Accounting Firm determines in good faith that the amount of the Gross-Up Payment should be reduced, the Executive shall within five business days pay to the Company the amount of such reduction. (e) The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by Sections 8(b) and (d) hereof shall be borne by the Company. If such fees and expenses are initially advanced by the Executive, the Company shall reimburse the Executive the full amount of such fees and expenses within five business days after receipt from the Executive of a statement therefor and reasonable evidence of his payment thereof. (f) In the event that the Internal Revenue Service claims that any payment or benefit received under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a constitutes an "excess parachute payment" within the meaning of Code Section 280G(b)(2) 280G(b)(1), or successor provision, the Executive shall notify the Company in writing of such claim. Such notification shall be given as soon as practicable but not later than 10 business days after the Executive is informed in writing of such claim and shall apprise the Company of the Code as then nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30 day period following the date on which the Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in effectwriting prior to the expiration of such period that it desires to contest such claim, the Executive shall (i) give the Company any information reasonably requested by the Company relating to such claim; and (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company and reasonably satisfactory to the Executive; (iii) cooperate with the Company in good faith in order to effectively contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including, but not limited to, additional interest and penalties and related legal, consulting or other similar fees) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for and against for any Parachute Tax or income tax or other tax (including interest and penalties with respect thereto) imposed as a result of receiving such representation and payment of costs and expenses. (g) The Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue xxx a parachute payment refund or contest the claim in any permissible manner and paying the Executive agrees to prosecute such contest to a determination before any applicable tax (including Excise Tax) thereonadministrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue xxx a refund, the aggregate afterCompany shall advance the amount of such payment to the Executive on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after tax amounts received by basis, from any Parachute Tax (or other tax including interest and penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided, further, that if the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by extend the statue of limitations to enable the Company to contest such claim, the Executive may limit this Section 11, extension solely to such reduction contested amount. The Company's control of the contest shall be implemented limited to issues with respect to which a corporate deduction would be disallowed pursuant to Code Section 280G or successor provision, and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by determining the “Parachute Payment Ratio” Internal Revenue Service or any other taxing authority. In addition, no position may be taken nor any final resolution be agreed to by the Company without the Executive's consent if such position or resolution could reasonably be expected to adversely affect the Executive unrelated to matters covered hereto. (as hereinafter definedh) for each parachute payment and then reducing If, after the parachute payments receipt by Executive of an amount advanced by the Company in order beginning connection with the parachute payment contest of the Parachute Tax claim, the Executive receives any refund with respect to such claim, the highest Executive shall promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto); provided, however, if the amount of that refund exceeds the amount advanced by the Company the Executive may retain such excess. If, after the receipt by the Executive of an amount advanced by the Company in connection with a Parachute Payment Ratio. For parachute payments Tax claim, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the same Parachute Payment Ratio, Company does not notify the Executive in writing of its intent to contest the denial of such parachute payments refund prior to the expiration of 30 days after such determination such advance shall be reduced based on deemed to be in consideration for services rendered after the time Date of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioTermination.

Parachute Payments. i) If before the end of the Term the Company terminates your employment without Cause (a) Anything in any section of this Agreement other than this Section 11 to as a result of your death or disability) or you resign for Good Reason, and such termination occurs within the contrary notwithstanding12 full calendar month period following the effective date of a Change in Control, then, in the event it shall be determined that any Payment payment or benefit paid or to be paid to you by the Company (as hereinafter definedthe “Payments”) would be subject to the excise tax (the “Excise Tax Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (as hereinafter definedthe “Code”), the right Company shall pay to receive any Payment under this Agreement you an additional amount (the “Gross-Up Payment”) such that the net amount of Payments retained by you shall be reduced equal to the amount you would have retained if but only if:none of such Payments were subject to the Excise Tax. In particular, the Company will timely pay to you an amount equal to the Excise Tax on the Payments, any interest, penalties or additions to tax payable by you by reason of your filing income tax returns and making tax payments in a manner consistent with an opinion of tax counsel selected by the Company and reasonably acceptable to you (“Tax Counsel”), and any federal, state and local income tax and Excise Tax upon the payments by the Company to you provided for by this Section 8(g). Notwithstanding the foregoing provisions of this Section 8(g), in the event the amount of Payments subject to the Excise Tax exceeds the product (“Parachute Payment Limit”) of 2.99 and your applicable “base amount” (as such term is defined for purposes of Section 4999 of the Code) by less than ten percent (10%) of the Salary, you shall be treated as having waived such rights with respect to Payments designated by you to the extent required such that the aggregate amount of Payments subject to the Excise Tax is less than the Parachute Payment Limit. (iii) The Company shall obtain an opinion of Tax Counsel that initially determines whether any of the Payments will be subject to the Excise Tax and the amounts of such right Excise Tax, which shall serve as the basis for reporting Excise Taxes and federal, state and local income taxes on Payments hereunder. For purposes of determining the amount of the Gross-Up Payment, you shall be deemed to pay federal income tax at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of your residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such Paymentstate and local taxes, taking into account all other any limitations applicable to individuals subject to federal income tax at the highest marginal rates. iii) The Gross-Up Payments provided for in this Section 8(g) shall be made as to each Payment upon the earlier of (A) the payment you of any such Payment or for Participant(B) the imposition upon you or payment by you of any Excise Tax or any federal, would cause state or local income tax on any Payment payment pursuant to this Section 8(g). iv) If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding or the Participant under this Agreement to be considered a "parachute payment" within opinion of Tax Counsel that the meaning of Section 280G(b)(2) of the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be Tax is less than the maximum afteramount taken into account under Section 8(g) hereof, you shall repay to the Company within five days of your receipt of notice of such final determination or opinion the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax amount that could be imposed on the Gross-Up Payment being repaid by you if such repayment results in a reduction in Excise Tax or a federal, state and local income tax deduction) plus any interest received by Participant without causing any you on the amount of such Payment repayment. If it is established pursuant to be considered a parachute payment. In final determination of a court or an Internal Revenue Service proceeding or the event opinion of Tax Counsel that the receipt Excise Tax exceeds the amount taken into account hereunder (including by reason of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause payment the Participant to existence or amount of which cannot be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on determined at the time of payment the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with excess within five days of the same Parachute Payment Ratio and the same time Company’s receipt of payment, notice of such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratiofinal determination or opinion.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to In the event of the consummation of a change in ownership or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" control (within the meaning of Section 280G(b)(2280G of the Code and the regulations thereunder (“Section 280G”)) (a “280G Change in Control”) of the Company occurring on or prior to the second anniversary of the Amendment Date, payments and benefits under this Agreement, together with other payments and benefits provided to you by the Company (including, without limitation, any accelerated vesting of stock options, shares of restricted stock or other equity-based awards) (the “Total Payments”) shall be made without regard to whether the deductibility of the Total Payments would be limited or precluded by Section 280G and without regard to whether the Total Payments would subject you to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the Total Payments constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments (or portions thereof) being hereinafter referred to as then the “Excess Parachute Payments”), the Company shall promptly pay to you an additional amount (the “Gross-up Payment”) that after imposition of all taxes (including but not limited to the Excise Tax) with respect to such Gross-up Payment equals the Excise Tax with respect to the Excess Parachute Payments. Notwithstanding any provision to the contrary herein, any tax gross-up payment described herein shall be paid no later than the time specified in effect; and§1.409A-3(i)(1)(v). (ii) as In the event of the consummation of a result 280G Change in Control of receiving the Company occurring after the second anniversary of the Amendment Date, the provisions of this Section 5(d)(ii) shall apply in lieu of the provisions of Section 5(d)(i) above. If all or a parachute payment and paying any portion of the Total Payments would constitute Excess Parachute Payments, you will be entitled to receive (A) an amount limited so that no portion thereof shall fail to be tax deductible under Section 280G of the Code (the “Limited Amount”), or (B) if the amount otherwise payable hereunder or otherwise (without regard to clause (A)) reduced by all taxes applicable tax thereto (including including, for the avoidance of doubt, the Excise Tax) thereonwould be greater than the Limited Amount reduced by all taxes applicable thereto, the aggregate afteramount otherwise payable hereunder. (iii) The determination as to whether the Total Payments include Excess Parachute Payments and, if so, the amount of such Excess Parachute Payments, the amount of any Excise Tax with respect thereto, the amount of any Gross-tax amounts received up Payment, if applicable, and the amount of any reduction in Total Payments shall be made at the Company’s expense by the Participant from independent public accounting firm most recently serving as the Company’s outside auditors or such other accounting or benefits consulting group or firm as the Company under this Agreement and all Payments would be less than may designate (the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment“Accountants”). In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment payments under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is otherwise are required to be reduced as described in Section 5(d)(ii), the adjustment will be made, first, by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with amount of base salary payable pursuant to Section 5(a)(i)(A) or the parachute payment with amount of base salary and bonus payable pursuant to Section 5(c)(ii)(A), as applicable; second, if additional reductions are necessary, by reducing the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of or reimbursement for COBRA premiums due to you pursuant to Section 5(a)(i)(C) or Section 5(c)(ii)(C), as applicable; and third, if additional reductions are still necessary, by eliminating the accelerated vesting of time-based equity-based awards or the vesting of performance-based equity-based awards, if any, starting with those awards for which the amount required to be taken into account under Section 280G is the greatest. (iv) In the event that there has been an underpayment or overpayment under this Agreement or otherwise as determined by the Accountants, the amount of such parachute paymentsunderpayment or overpayment shall forthwith be paid to you or refunded to the Company, as the case may be, with amounts having later payment dates being reduced first. For parachute payments with interest at the same Parachute Payment Ratio and applicable federal rate provided for in Section 7872(f)(2) of the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioCode.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 If Independent Tax Counsel (as defined below) determines that the aggregate payments and benefits provided or to be provided to the contrary notwithstandingEmployee pursuant to this Agreement, and any other payments and benefits provided or to be provided to the Employee from the Company or any of its Affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the event it shall be determined Internal Revenue Code of 1986, as amended (the “Code”) (or any successor provision thereto) (“Parachute Payments”) that any Payment (as hereinafter defined) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax (as hereinafter definedTax”), then, except as otherwise provided in the right to receive any Payment under this Agreement next sentence, such Parachute Payments shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant extent necessary so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Employee would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 7(a), then no such reduction shall be made; provided, however, that in such case the provisions of Sections 7(b)(i) and 7(b)(ii) shall not be operative. The determination of the Independent Tax Counsel under this Agreement subsection (a) shall be final and binding on all parties hereto. The determination of which payments or benefits to reduce in order to avoid the Excise Tax shall be determined in the sole discretion of the Employee; provided, however, that unless the Employee gives written notice to the Company specifying the order to effectuate the limitations described above within ten (10) days of the Independent Tax Counsel’s determination to make such reduction, the Company shall first reduce those payments or benefits that will cause a dollar-for-dollar reduction in total Parachute Payments, and then by reducing other Parachute Payments, to the extent possible, in reverse order beginning with payments or benefits that are to be considered a "parachute payment" within paid the meaning of Section 280G(b)(2) of farthest in time from the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, date the aggregate after-tax amounts received reduction is to be made. Any notice given by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment Employee pursuant to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then unless prohibited by law, shall take precedence over the amounts payable under provisions of any other plan, arrangement or agreement governing the Employee’s rights and entitlement to any benefits or compensation. For purposes of this Agreement Section 7(a), “Independent Tax Counsel” shall mean an attorney, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of Employee compensation tax law, who shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from selected by the Company is required and shall be acceptable to the Employee (the Employee’s acceptance not to be reduced by this Section 11unreasonably withheld), such reduction and whose fees and disbursements shall be implemented paid by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioCompany.

Parachute Payments. (a) Anything in Notwithstanding any section other provision of this Agreement other than this Section 11 Section, if it is determined that part or all of the compensation or benefits to be paid to the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment Employee under this Agreement shall be reduced if but only if: (i) such right to such Paymentin connection with the Employee's Severance Termination, taking into account all or under any other Payments to plan, arrangement or for Participantagreement, would cause any Payment to the Participant under this Agreement to be considered constitutes a "parachute payment" within under IRC §280G(b)(2), then the meaning of Section 280G(b)(2) of the Code as then in effect; and (ii) as a result of receiving amount constituting a parachute payment and paying any that would otherwise be payable to or for the benefit of the Employee shall be reduced (if required under such applicable tax (including Excise Tax) thereonlaw), but only to the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments extent necessary, so that such amount would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered not constitute a parachute payment. In the event that the receipt of any such right to Payment under this Agreementa reduction is required, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute cash payments shall be reduced based on the time of payment of such parachute paymentsfirst, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments then compensation and benefits not payable in cash shall be reduced on reduced, in each case in reverse order beginning with payments or benefits that are to be paid the farthest in time from the date of the reduction and in each case after giving effect to any payments and benefits that may have been received prior to termination. Any determination that a pro rata basis payment constitutes a parachute payment shall be made as promptly as practicable following the Employee's termination of employment (but not below zerolater than the date payment is required under subsection (b) of this Section) by the Tax Adviser (at the expense of the Company), whose determination shall be final and binding in all cases. Unless the Employee is given notice that a payment (or payments) will constitute a parachute payment prior to reducing the earlier of (1) receipt of such payments or (2) the tenth (10th) business day following his or her Severance Termination, no payment (or payments) shall be deemed to constitute a parachute payment. If the determination made pursuant to this subsection would result in a reduction, the Tax Adviser also shall determine which and how much of any particular entitlement shall be so reduced (to the extent required under such applicable law), in each case after giving effect to any payments with a lower Parachute Payment Ratioand benefits that may have been received prior to such termination, and shall advise the Employee and Company in writing within ten (10) business days of the determination of the reduction in payments.

Parachute Payments. (a) Anything If there is a change in ownership or control of the Company that would cause any section payment, distribution or benefit provided by the Company, any person whose actions result in a change in ownership covered by Section 280G(b)(2) or any person affiliated with the Company or such person, to or for the benefit of the Executive (whether provided, to be provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement other than this Section 11 or otherwise) (a “Payment”) to the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest or penalties incurred by the Executive with respect to such excise tax, the “Excise Tax Tax”) (as hereinafter definedany such Payment, a “Parachute Payment”), then the right to receive any Payment under this Agreement following provisions shall be reduced if but only ifapply: (i) such right to such If the Parachute Payment, taking into account all other Payments to reduced by the sum of (A) the Excise Tax and (B) the total of the federal, state, and local income and employment taxes payable by the Executive on the amount of the Parachute Payment which are in excess of the Threshold Amount (as defined below), are greater than or for Participant, would cause any Payment equal to the Participant Threshold Amount, the Executive shall be entitled to the full benefits payable under this Agreement to be considered a "parachute payment" within the meaning of Section 280G(b)(2) of the Code as then in effect; andAgreement. (ii) as a result of receiving a parachute payment and paying any applicable tax If the Threshold Amount is less than (including Excise TaxA) thereonthe Parachute Payment, but greater than (B) the aggregate after-tax amounts received Parachute Payment reduced by the Participant from sum of (x) the Company under this Agreement Excise Tax and all Payments would be less than (y) the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In total of the event that the receipt of any such right to Payment under this Agreementfederal, in conjunction with all other Paymentsstate, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received and local income and employment taxes payable by the Participant as described in clause (ii) Executive on the amount of the preceding sentenceParachute Payment which are in excess of the Threshold Amount, then the amounts payable under this Agreement Parachute Payment shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower the extent necessary so that the sum of all Parachute Payments shall not exceed the Threshold Amount. In such event, the Parachute Payment Ratioshall be reduced in the following order: (1) cash payments not subject to Code Section 409A; (2) cash payments subject to Code Section 409A; (3) stock options (and other exercisable awards) that have exercise prices higher than the then fair market value price of the stock (based on the latest vesting tranches), (4) restricted stock and restricted stock units based on the last ones scheduled to be distributed, (5) other stock options based on the latest vesting tranches, and (6) other non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in In the event it shall be determined that (i) any Payment payment or distribution to or for the benefit of the Executive under this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control or other change in control or any person affiliated with the Company or such person (as hereinafter definedthe “Payment” and collectively, the “Payments”) would be subject to the excise tax imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed) or any interest or penalties with respect to such excise tax (collectively, such excise tax, together with any such interest or penalties, the “Excise Tax”) and (ii) the amount of all the Payments that Executive would retain after all federal, state and local income taxes, Executive’s share of employment taxes, and the Excise Tax on the Payments would be less than the amount Executive would retain after all such taxes if the total amount of the Payments were reduced to an amount equal to one dollar less than the minimum amount which would result in the Payments becoming subject to the Excise Tax (as hereinafter definedsuch reduced amount, the “Safe Harbor Amount”), then the right total amount of the Payments that shall be payable to receive any Payment under this Agreement Executive shall be reduced if to an amount equal to the Safe Harbor Amount. The Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A, (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A, but only if:excluding any payment attributable to the acceleration of vesting or payment with respect to any equity award that is exempt from Section 409A, (C) reduction of any other payments or benefits otherwise payable to the Executive on a pro-rata basis or such other manner that complies with Section 409A, but excluding any payment attributable to the acceleration of vesting and payment with respect to any equity award that is exempt from Section 409A, and (D) reduction of any payments attributable to the acceleration of vesting or payment with respect to any equity award that is exempt from Section 409A, in each case beginning with payments that would otherwise be made last in time. (b) All determinations required to be made under this Section 8 shall be made in writing by an accounting firm or consulting group with experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax (the “Tax Advisor”) and such determinations shall be final and binding on the Company and the Executive and detailed supporting calculations shall be provided to the Company and the Executive. The Tax Advisor shall be selected by the Company in its good faith discretion, following consultation with its independent auditors and the Executive. Any fees incurred as a result of work performed by the Tax Advisor pursuant to this Section 8 shall be paid by the Company. (c) For purposes of any analysis required by this Section 8, (i) the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the determination is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on the date of the determination is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such right to such Paymentstate and local taxes, taking (ii) no portion of the Payments shall be taken into account all other Payments to or for Participantwhich, would cause any Payment to in the Participant under this Agreement to be considered opinion of the Tax Advisor, does not constitute a "“parachute payment" ” within the meaning of Section 280G(b)(2) of the Code as then in effect; and (ii) as a result including, without limitation, by reason of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (iiSection 280G(b)(4)(A) of the preceding sentenceCode), then (iii) in calculating the amounts payable under this Agreement Excise Tax, no portion of the Payments shall be reduced so that the Parachute Value of all Paymentstaken into account which, in the aggregateopinion of the Tax Advisor, equals constitutes reasonable compensation for services actually rendered, within the Safe Harbor Amount. To meaning of Section 280G(b)(4)(B) of the extent that the payment Code, in excess of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratiobase amount” (as hereinafter defineddefined in Section 280G(b)(3) for each parachute of the Code) allocable to such reasonable compensation, and (iv) the value of any non-cash benefit or any deferred payment and then reducing or benefit included in the parachute payments Payments shall be determined by the Tax Advisor in order beginning accordance with the parachute payment with principles of Sections 280G(d)(3) and (4) of the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioCode.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 Notwithstanding anything to the contrary notwithstandingin this Agreement or otherwise, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to payment or for Participant, would cause any Payment to the Participant under this Agreement benefit received or to be considered a "parachute payment" within the meaning of Section 280G(b)(2) of the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant Executive in connection with a Change in Control or the Executive’s Separation from Service (whether pursuant to the terms of this Agreement or any other plan, policy, arrangement or agreement maintained or entered into by the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing (or any such Payment to be considered of its Affiliates or successors) or any Person whose actions result in a parachute payment. In the event that the receipt of Change in Control (or any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause Person (iib) The reduction of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, Payments contemplated in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction 5.03(a) above shall be implemented by determining the “Parachute Payment Ratio” Ratio (as hereinafter defined) defined below), as determined in good faith by the Company (or its successor), for each parachute payment Parachute Payment and then reducing the parachute payments Parachute Payments in order beginning with the parachute payment Parachute Payment with the highest Parachute Payment Ratio. For parachute payments Parachute Payments with the same Parachute Payment Ratio, such parachute payments Parachute Payments shall be reduced based on the time of payment of such parachute paymentsParachute Payments, with amounts having later payment dates being reduced first. For parachute payments Parachute Payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments Parachute Payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments Parachute Payments with a lower Parachute Payment Ratio.. For purposes hereof, the term “Parachute Payment Ratio” shall mean a fraction, (i) the numerator of which is the value of the applicable Parachute Payment (as calculated for purposes of Section 280G of the Code), and (ii) the denominator of which is the intrinsic (i.e., economic) value of such Parachute Payment. ARTICLE 6

Parachute Payments. (a) Anything In the event that (i) any payment or benefit received or to be received by Employee in any section connection with a Change of Control or the termination of Employee’s employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change of Control or any person affiliated with the Company or such person) (collectively “Parachute Payments”) would not be deductible (in whole or part) as a result of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code) by the Company, an affiliate or other person making such payment or providing such benefit; and (ii) it is determined in good faith by Employer that the net after-tax amount of the Parachute Payments retained by Employee after deduction for any excise tax imposed by Section 4999 of the Code and any federal, state, and local income and employment taxes would not exceed the net after-tax amount of the Parachute Payments retained by Employee after limiting the Parachute Payments to an amount that is 2.99 times the Employee’s “base amount” (as such term is defined by Section 280G of the Code), the Parachute Payments shall be reduced until no portion of the Parachute Payments is not deductible. For purposes of this provision, (1) no portion of the Parachute Payments the receipt or enjoyment of which Employee shall have effectively waived in writing prior to the date of payment of the Parachute Payments shall be taken into account; (2) no portion of the Parachute Payments shall be taken into account which in the opinion of tax counsel selected by Employer or its independent auditors serving as such immediately prior to the Change of Control does not constitute a “parachute payment” within the meaning of section 280G(b)(2) of the Code; (3) the Parachute Payments shall be reduced only to the extent necessary so that the Parachute Payments (other than this Section 11 those referred to in the contrary notwithstandingimmediately preceding clauses (1) or (2)) 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 event it opinion of the tax counsel referred to in such clause (2); and (4) the value of any non-cash benefit or any deferred payment or benefit included in the Parachute Payments shall be determined that any Payment (as hereinafter defined) would be subject to by the Excise Tax (as hereinafter defined)Company’s independent auditors based on Sections 280G and 4999 of the Code and the regulations for applying those Code Sections, the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" on substantial authority within the meaning of Section 280G(b)(26662 of the Code. In addition, if any portion of the Parachute Payments are determined not to be deductible by reason of section 280G of the Code, then to the extent reasonably practicable and permitted by applicable law, then, upon the written request of Employee, Employer shall: (i) use all commercially reasonable efforts to obtain stockholder approval in accordance with Section 280G of the Code as then in effectwith respect to any payments or benefits that Employee elects to waive and subject Employee’s right to receive the same to approval thereof by the stockholders of Employer; and and (ii) as a result of receiving a parachute payment and paying to the extent such approval is not obtained or is not requested, consult with Employee prior to reducing any particular Parachute Payments in order to afford Employee the opportunity to waive other Parachute Payments. Except to the extent prohibited by applicable tax (including Excise Tax) thereonlaw, Employer shall honor Employee’s preferences with respect to the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt order of any such right waiver of Parachute Payments to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment written notice of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) preferences is received by Employer prior to reducing parachute payments with a lower Parachute Payment Ratiothe Change of Control.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 Notwithstanding anything to the contrary notwithstandingherein, if the Company enters into an agreement the consummation of which would result in a Change in Control, an independent registered public accounting firm retained by the event it shall be determined that any Payment (as hereinafter defined) would be subject Company prior to the Excise Tax occurrence of such Change in Control (as hereinafter defined), the right to receive “Accounting Firm”) shall determine whether all or any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to portion of the compensatory payments that the Participant under this Agreement to be considered a "receives from the Company (including any compensation received in respect of the RSUs) will constitute “excess parachute paymentpayments" within the meaning of Section 280G(b)(2280G of the Code such that the Participant would be subject to the excise tax imposed by Section 4999 of the Code or any other similar state excise tax or any interest or penalty is incurred by the Participant with respect to such excise tax (the “Excise Tax”). If the Participant would be subject to an Excise Tax, the Accounting Firm shall also determine whether the Participant would receive a greater net after tax benefit, taking into account all otherwise applicable federal, state and local income, employment and excise taxes that would otherwise be imposed on or with respect to such compensatory payments, if the amount of such compensatory payments were to be reduced to three times the Participant’s “base amount”, as defined in Section 280G(b)(3) of the Code as then in effect; and Code, less one dollar (ii) as the “Safe Harbor Limit”). If the Participant would receive a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate greater net after-tax amounts received by benefit if the Participant from compensatory payments were reduced to the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentenceSafe Harbor Limit, then the amounts payable under this Agreement number of RSUs (or, if applicable, Restricted Shares) that could become vested in connection with such Change in Control shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) as and to the extent the Accounting Firm determines to be necessary so that the compensatory payments shall not exceed the Safe Harbor Limit. If, as a result of the vesting of any portion of the RSUs prior to reducing parachute the date of the Change in Control, there is not a sufficient number of unvested RSUs (or, if applicable Restricted Shares) to reduce or forfeit to result in the aggregate compensatory payments be less than or equal to the Safe Harbor Limit, the Participant agrees to forego receipt of other compensation having a value (as determined by the Accounting Firm) equal to the additional number of whole or partial RSUs that would have had to have been reduced or forfeited to reduce the compensatory payments to the Safe Harbor Limit. (b) In connection with making determinations under this Section 10, the Accounting Firm shall take into account, to the extent permitted under Section 280G, the value of any reasonable compensation for services rendered by the Participant before, and to be rendered after the date of such Change in Control, including the value of any noncompetition provisions that may apply to the Participant following such date. The Company shall cooperate with the Accounting Firm in any making such determinations. All fees and expenses of the Accounting Firm in implementing the provisions of this Section 10, including those expenses incurred to value any restrictive covenants, shall be borne by the Company. (c) If it shall be subsequently determined that the number of RSUs (or the value thereof) that the Accounting Firm determined had to be reduced in accordance with the provisions of Section 10(a) is less than the number of RSUs (or the value thereof) actually required to avoid the application of the Excise Tax on the Participant’s compensatory payments to the Participant, then the value attributable to the appropriate number of RSUs in excess of the number of RSUs determined to be reduced by the Accounting Firm pursuant to this Section 10 shall be deemed for all purposes to be a lower Parachute Payment Ratioloan to the Participant made on the date of receipt of such vested RSUs, which the Participant shall have an obligation to repay to the Company, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the date of the Participant’s receipt of payment for such vested RSUs to the date of repayment by the Participant. (d) Except as otherwise expressly provided in Section 10(c), all determinations made by the Accounting Firm under this Section 9 shall be binding upon the Company and the Participant.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 Notwithstanding anything to the contrary notwithstandingin this Agreement or otherwise, in the event it shall be determined that any Payment payment or benefit received or to be received by the Executive in connection with a Change in Control or the Executive’s Separation from Service (whether pursuant to the terms of this Agreement or any other plan, policy, arrangement or agreement maintained or entered into by the Company (or any of its Affiliates or successors) or any Person whose actions result in a Change in Control (or any Person affiliated with such Person)) (all such payments and benefits, the “Parachute Payments”) would be subject (in whole or in part) to an excise tax under Section 4999 of the Code (the “Excise Tax”), then the Parachute Payments shall either be (i) reduced (but not below zero) so that the present value of the Parachute Payments is one dollar less than three times the Executive’s “base amount” (as hereinafter defineddefined in Section 280G(b)(3) would of the Code) so that no portion of the Parachute Payments shall be subject to the Excise Tax or (as hereinafter defined)ii) paid in full, whichever produces the right better net after-tax position to receive any Payment under this Agreement shall be reduced if but only if: the Executive (i) such right to such Payment, taking into account all the Excise Tax and any other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" within the meaning of Section 280G(b)(2applicable taxes). (b) The reduction of the Code as then Parachute Payments contemplated in effect; and (iiSection 5.3(a) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction above shall be implemented by determining the “Parachute Payment Ratio” Ration (as hereinafter defined) defined below), as determined in good faith by the Company (or its successor), for each parachute payment Parachute Payment and then reducing the parachute payments Parachute Payments in order beginning with the parachute payment Parachute Payment with the highest Parachute Payment Ratio. For parachute payments Parachute Payments with the same Parachute Payment Ratio, such parachute payments Parachute Payments shall be reduced based on the time of payment of such parachute paymentsParachute Payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratio.For

Parachute Payments. (a) Anything Notwithstanding anything contained in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to the contrary, the Company, based on the advice of its legal or tax counsel, shall compute whether there would be considered a "any “excess parachute payment" payments” payable to Executive, within the meaning of Section 280G(b)(2) 280G of the Code as then in effect; and (ii) as a result Code, taking into account the total ‘‘parachute payments,” within the meaning of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereonSection 280G of the Code, the aggregate after-tax amounts received payable to Executive by the Participant from the Company under this Agreement and all Payments any other plan, agreement or otherwise. If there would be any excess parachute payments, the Company, based on the advice of its legal or tax counsel, shall compute the net after-tax proceeds related to such parachute payments, taking into account the excise tax imposed by Section 4999 of the Code, as if (i) such parachute payments were reduced, but not below zero, such that the total parachute payments payable to Executive would not exceed three (3) times the “base amount” as defined in Section 280G of the Code, less than One Dollar ($1.00), or (ii) the maximum full amount of such parachute payments were not reduced. If reducing the amount of such parachute payments otherwise payable would result in a greater after-tax amount that could to Executive, such reduced amount shall be received by Participant without causing any paid to Executive and the remainder shall be forfeited. If not reducing such Payment to be considered parachute payments otherwise payable would result in a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the greater after-tax amount received to Executive, then such parachute payments shall not be reduced. If such parachute payments are reduced pursuant to the foregoing, they will be reduced in the following order: first, by reducing any cash severance payments, then by reducing any fringe or other severance benefits, and finally by reducing any payments or benefits otherwise payable with respect to, or measured by, the Participant as described Company’s common stock (including without limitation by eliminating accelerated vesting, in clause (ii) each case starting with the installment or tranche last eligible to become vested absent the occurrence of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, Change in Control (as defined in the aggregateCompany’s 2014 Equity Incentive Plan)). Notwithstanding the foregoing, equals to the Safe Harbor Amountextent the parties agree that any of the foregoing amounts are not parachute payments, such amounts shall not be reduced. To the extent that the payment parties cannot agree as to whether any of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments are in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such fact parachute payments, the parties will designate, by mutual agreement, an unrelated third-party with amounts having later payment dates being reduced firsttax expertise to make the determination. For parachute payments with Notwithstanding any provision of this Section 3.2(d) to the same Parachute Payment Ratio and the same time of paymentcontrary, such parachute payments no amount shall be reduced on subject to reduction pursuant to this Section 3.2(d) to the extent the reduction would result in a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratioviolation of any applicable law.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 Notwithstanding anything to the contrary notwithstandingin this Agreement or otherwise, in the event it shall be determined that any Payment payment or benefit received or to be received by the Executive in connection with a Change in Control or the Executive’s Separation from Service (whether pursuant to the terms of this Agreement or any other plan, policy, arrangement or agreement maintained or entered into by the Company (or any of its Affiliates or successors) or any Person whose actions result in a Change in Control (or any Person affiliated with such Person)) (all such payments and benefits, the “Parachute Payments”) would be subject (in whole or in part) to an excise tax under Section 4999 of the Code (the “Excise Tax”), then the Parachute Payments shall either be (i) reduced (but not below zero) so that the present value of the Parachute Payments is one dollar less than three times the Executive’s “base amount” (as hereinafter defineddefined in Section 280G(b)(3) would of the Code) so that no portion of the Parachute Payments shall be subject to the Excise Tax or (as hereinafter defined)ii) paid in full, whichever produces the right better net after-tax position to receive any Payment under this Agreement shall be reduced if but only if: the Executive (i) such right to such Payment, taking into account all the Excise Tax and any other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" within the meaning of Section 280G(b)(2applicable taxes). (b) The reduction of the Code as then Parachute Payments contemplated in effect; and (iiSection 5.03(a) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction above shall be implemented by determining the “Parachute Payment Ratio” Ratio (as hereinafter defined) defined below), as determined in good faith by the Company (or its successor), for each parachute payment Parachute Payment and then reducing the parachute payments Parachute Payments in order beginning with the parachute payment Parachute Payment with the highest Parachute Payment Ratio. For parachute payments Parachute Payments with the same Parachute Payment Ratio, such parachute payments Parachute Payments shall be reduced based on the time of payment of such parachute paymentsParachute Payments, with amounts having later payment dates being reduced first. For parachute payments Parachute Payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments Parachute Payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments Parachute Payments with a lower Parachute Payment Ratio.. For purposes hereof, the term “Parachute Payment Ratio” shall mean a fraction, (i) the numerator of which is the value of the applicable Parachute Payment (as calculated for purposes of Section 280G of the Code), and (ii) the denominator of which is the intrinsic (i.e., economic) value of such Parachute Payment. ARTICLE 6

Parachute Payments. (a) Anything in If it is determined (as hereafter provided) that any section payment, compensation or other benefit provided by the Company (or any successor entity) to or for the benefit of Executive under this Agreement or any other than this Section 11 to plan, agreement or arrangement (the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined“Payments”) would be subject to the Excise Tax excise tax imposed by Code Section 4999 (as hereinafter defineda “Parachute Tax”), or any tax, interest, penalty or other expense incurred by Executive pursuant to Code Section 409A (a “Deferred Compensation Tax”) to which Executive would not have been subject but for the right Company’s failure to pay any severance amounts pursuant to the provisions of Section 3 and Section 4 of this Agreement or other failure to make such payments in a manner that avoids such payments qualifying as deferred compensation under Section 409A of the Code, then Executive shall be entitled to receive an additional payment or payments (a “Gross-Up Payment”) in an amount such that, after payment by Executive of all taxes (including any Parachute Tax or Deferred Compensation Tax) imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Parachute Tax or Deferred Compensation Tax imposed upon the Payment. (b) Subject to the provisions of Section 5(a) hereof, all determinations required to be made under this Agreement Section 5, including whether a Parachute Tax or Deferred Compensation Tax is payable by Executive with regard to a Payment and the amount of such Parachute Tax or Deferred Compensation Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be reduced if but only if: made by the nationally recognized firm of certified public accountants (ithe “Accounting Firm”) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment used by the Company (prior to the Participant under Change in Control, if applicable), or, if such Accounting Firm declines to serve, the Accounting Firm shall be a nationally recognized firm of certified public accountants selected by the Company. For purposes of making the calculations required by this Agreement to Section, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G, 4999 and 409A of the Code, provided that the Accounting Firm’s determinations must be considered a "parachute payment" made with substantial authority (within the meaning of Section 280G(b)(2) 6662 of the Code Code). The Accounting Firm shall be directed by the Company or Executive to submit its preliminary determination and detailed supporting calculations to both the Company and Executive within 15 calendar days after the determination date, if applicable, and any other such time or times as then may be requested by the Company or Executive. If the Accounting Firm determines that any Parachute Tax or Deferred Compensation Tax is payable by Executive with regard to a Payment, the Company shall pay the required Gross-Up Payment to, or for the benefit of, Executive within five business days after receipt of such determination and calculations (and in effectany event, such Gross-Up Payment shall be paid to Executive by the end of the calendar year next following the calendar year in which Executive remits the Parachute Tax or Deferred Compensation Tax to appropriate tax authorities). If the Accounting Firm determines that no Parachute Tax or Deferred Compensation Tax is payable by Executive with regard to a Payment, it shall, at the same time as it makes such determination, furnish Executive with an opinion that he has substantial authority not to report any Parachute Tax or Deferred Compensation Tax on his federal tax return. Any good faith determination by the Accounting Firm as to whether a Gross-Up Payment is to be made with regard to a Payment and the amount of the Gross-Up Payment shall be binding upon the Company and Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; and (ii) provided, however, that no such determination shall eliminate or reduce the Company’s obligation to provide any Gross-Up Payments that shall be due as a result of receiving such contrary determination. As a parachute payment and paying result of the uncertainty in the application of Code Section 4999 or Code Section 409A at the time of any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received determination by the Participant from Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Company under this Agreement and all Payments would be less than should have been made (an “Underpayment”), consistent with the maximum after-tax amount that could be received by Participant without causing any such Payment calculations required to be considered a parachute paymentmade hereunder. In the event that the Company exhausts or fails to pursue its remedies pursuant to Section 5(f) hereof and Executive thereafter is required to make a payment of any Parachute Tax or Deferred Compensation Tax, Executive shall direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Company and Executive as promptly as possible. Any such Underpayment shall be promptly paid by the Company to, or for the benefit of, Executive within five business days after receipt of such determination and calculations (and in any event, such right Underpayment shall be paid to Executive by the end of the calendar year next following the calendar year in which Executive remits the related Parachute Tax or Deferred Compensation Tax to the appropriate tax authorities). (c) The Company and Executive shall each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by Section 5(b) hereof. (d) The federal tax returns filed by Executive (or any filing made by a consolidated tax group which includes the Company) shall be prepared and filed on a basis consistent with the determination of the Accounting Firm with respect to the Parachute Tax or Deferred Compensation Tax payable by Executive. Executive shall make proper payment of the amount of any Parachute Tax or Deferred Compensation Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of his federal income tax return as filed with the Internal Revenue Service, and such other documents reasonably requested by the Company, evidencing such payment. If prior to the filing of Executive’s federal income tax return, the Accounting Firm determines in good faith that the amount of the Gross-Up Payment under this Agreementshould be reduced, Executive shall within five business days pay to the Company the amount of such reduction. (e) The fees and expenses of the Accounting Firm for its services in conjunction connection with all other Paymentsthe determinations and calculations contemplated by Sections 5(b) and (d) hereof shall be borne by the Company. If such fees and expenses are initially advanced by Executive, would cause the Participant to be considered to have Company shall reimburse Executive the full amount of such fees and expenses within five business days after receipt from Executive of a statement therefor and reasonable evidence of his payment thereof. (f) In the event that the Internal Revenue Service claims that any payment or benefit received a parachute payment under this Agreement constitutes an “excess parachute payment” within the meaning of Code Section 280G(b)(1), Executive shall notify the Company in writing of such claim. Such notification shall be given as soon as practicable but not later than 10 business days after Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30 day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that would have any payment of taxes with respect to such claim is due). If the effect Company notifies Executive in writing prior to the expiration of decreasing such period that it desires to contest such claim, Executive shall (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company and reasonably satisfactory to Executive; (iii) cooperate with the Company in good faith in order to effectively contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including, but not limited to, additional interest and penalties and related legal, consulting or other similar fees) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax amount received by basis, for and against for any Parachute Tax or income tax or other tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (g) The Company shall direct Executive with regard to all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the Participant as described taxing authority in clause (ii) respect of such claim and may, at its sole option, either direct Executive to pay the preceding sentence, then tax claimed and xxx for a refund or contest the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Paymentsclaim in any permissible manner and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the aggregateCompany shall determine; provided, equals however, that if the Safe Harbor Amount. To Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive on an interest-free basis (to the extent permitted by applicable law), and shall indemnify and hold Executive harmless, on an after tax basis, from any Parachute Tax or Deferred Compensation Tax (or other tax including interest and penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided, further, that the payment of any compensation or benefits to if Executive from the Company is required to be reduced by extend the statue of limitations to enable the Company to contest such claim, Executive may limit this Section 11, extension solely to such reduction contested amount. The Company’s right to direct Executive with regard to the contest shall be implemented limited to issues with respect to whether and the extent to which a payment or benefit is an “excess parachute payment” pursuant to Code Section 280G(b)(1), the imposition of the Parachute Tax under Code Section 4999 and the imposition of the Deferred Compensation Tax under Code Section 409A, and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by determining the “Parachute Payment Ratio” Internal Revenue Service or any other taxing authority. In addition, the Company shall not direct Executive to take a position or agree to any final resolution if such position or resolution could reasonably be expected to adversely affect Executive unrelated to matters covered hereto, unless Executive consents in writing to such position or agreement. (as hereinafter definedh) for each parachute payment and then reducing If, after the parachute payments receipt by Executive of an amount advanced by the Company in order beginning connection with the parachute payment contest of the Parachute Tax or Deferred Compensation Tax claim, Executive receives any refund with respect to such claim, Executive shall promptly pay to the highest Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto); provided, however, if the amount of that refund exceeds the amount advanced by the Company Executive may retain such excess. If, after the receipt by Executive of an amount advanced by the Company in connection with a Parachute Payment Ratio. For parachute payments Tax or Deferred Compensation Tax claim, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the same Parachute Payment Ratio, Company does not notify Executive in writing of its intent to direct Executive to contest the denial of such parachute payments refund prior to the expiration of 30 days after such determination such advance shall be reduced based on deemed to be in consideration for services rendered after the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioTermination Date.

Parachute Payments. (a) Anything In the event that (i) any payment or benefit received or to be received by Employee in any section connection with a Change of Control or the termination of Employee’s employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change of Control or any person affiliated with the Company or such person) (collectively “Parachute Payments”) would not be deductible (in whole or part) as a result of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) by the Company, an affiliate or other person making such payment or providing such benefit; and (ii) it is determined in good faith by Employer that the net after-tax amount of the Parachute Payments retained by Employee after deduction for any excise tax imposed by Section 4999 of the Code and any federal, state, and local income and employment taxes would not exceed the net after-tax amount of the Parachute Payments retained by Employee after limiting the Parachute Payments to an amount that is 2.99 times the Employee’s “base amount” (as such term is defined by Section 280G of the Code), the Parachute Payments shall be reduced until no portion of the Parachute Payments is not deductible. For purposes of this provision, (1) no portion of the Parachute Payments the receipt or enjoyment of which Employee shall have effectively waived in writing prior to the date of payment of the Parachute Payments shall be taken into account; (2) no portion of the Parachute Payments shall be taken into account which in the opinion of tax counsel selected by Employer or its independent auditors serving as such immediately prior to the Change of Control does not constitute a “parachute payment” within the meaning of section 280G(b)(2) of the Code; (3) the Parachute Payments shall be reduced only to the extent necessary so that the Parachute Payments (other than this Section 11 those referred to in the contrary notwithstandingimmediately preceding clauses (1) or (2)) 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 event it opinion of the tax counsel referred to in such clause (2); and (4) the value of any non-cash benefit or any deferred payment or benefit included in the Parachute Payments shall be determined that any Payment (as hereinafter defined) would be subject to by the Excise Tax (as hereinafter defined)Company’s independent auditors based on Sections 280G and 4999 of the Code and the regulations for applying those Code Sections, the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" on substantial authority within the meaning of Section 280G(b)(2) 6662 of the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any Code. Except to the extent prohibited by applicable tax (including Excise Tax) thereonlaw, Employer shall honor Employee’s preferences with respect to the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt order of any such right waiver of Parachute Payments to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment written notice of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) preferences is received by Employer prior to reducing parachute payments with a lower Parachute Payment Ratiothe Change of Control.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event If it shall be is determined that any Payment (as hereinafter definedhereafter provided) that Executive would be subject to the Excise Tax excise tax imposed by Code Section 4999 (a “Parachute Tax”) to which Executive would not have been subject but for any payment or stock option or restricted stock vesting occurring pursuant to the terms of this Agreement or otherwise upon a Change in Control or any tax, interest, penalty or other expense incurred by Executive pursuant to Code Section 409A (a “Deferred Compensation Tax”) to which Executive would not have been subject but for the Company’s failure to pay any severance amounts pursuant to the provisions of Section 3 and Section 4 of this Agreement or other failure to make such payments in a manner that avoids such payments qualifying as hereinafter defineddeferred compensation under Section 409A of the Code (collectively, a “Payment”), the right then Executive shall be entitled to receive an additional payment or payments (a “Gross-Up Payment”) in an amount such that, after payment by Executive of all taxes (including any Parachute Tax or Deferred Compensation Tax) imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Parachute Tax or Deferred Compensation Tax imposed upon the Payment. (b) Subject to the provisions of Section 5(a) hereof, all determinations required to be made under this Agreement Section 5, including whether a Parachute Tax or Deferred Compensation Tax is payable by Executive with regard to a Payment and the amount of such Parachute Tax or Deferred Compensation Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be reduced if but only if: made by the nationally recognized firm of certified public accountants (ithe “Accounting Firm”) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment used by the Company prior to the Participant under Change in Control (or, if such Accounting Firm declines to serve, the Accounting Firm shall be a nationally recognized firm of certified public accountants selected by the Company). For purposes of making the calculationsrequired by this Agreement to Section, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G, 4999 and 409A of the Code, provided that the Accounting Firm’s determinations must be considered a "parachute payment" made with substantial authority (within the meaning of Section 280G(b)(2) 6662 of the Code Code). The Accounting Firm shall be directed by the Company or Executive to submit its preliminary determination and detailed supporting calculations to both the Company and Executive within 15 calendar days after the determination date, if applicable, and any other such time or times as then in effectmay be requested by the Company or Executive. If the Accounting Firm determines that any Parachute Tax or Deferred Compensation Tax is payable by Executive with regard to a Payment, the Company shall pay the required Gross-Up Payment to, or for the benefit of, Executive within five business days after receipt of such determination and calculations. If the Accounting Firm determines that no Parachute Tax or Deferred Compensation Tax is payable by Executive with regard to a Payment, it shall, at the same time as it makes such determination, furnish Executive with an opinion that he has substantial authority not to report any Parachute Tax or Deferred Compensation Tax on his federal tax return. Any good faith determination by the Accounting Firm as to whether a Gross-Up Payment is to be made with regard to a Payment and the amount of the Gross-Up Payment shall be binding upon the Company and Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; and (ii) provided, however, that no such determination shall eliminate or reduce the Company’s obligation to provide any Gross-Up Payments that shall be due as a result of receiving such contrary determination. As a parachute payment and paying result of the uncertainty in the application of Code Section 4999 or Code Section 409A at the time of any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received determination by the Participant from Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Company under this Agreement and all Payments would be less than should have been made (an “Underpayment”), consistent with the maximum after-tax amount that could be received by Participant without causing any such Payment calculations required to be considered a parachute paymentmade hereunder. In the event that the Company exhausts or fails to pursue its remedies pursuant to Section 5(f) hereof and Executive thereafter is required to make a payment of any Parachute Tax or Deferred Compensation Tax, Executive shall direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Company and Executive as promptly as possible. Any such Underpayment shall be promptly paid by the Company to, or for the benefit of, Executive within five business days after receipt of such determination and calculations. (c) The Company and Executive shall each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by Section 5(b) hereof. (d) The federal tax returns filed by Executive (or any filing made by a consolidated tax group which includes the Company) shall be prepared and filed on a basis consistent with the determination of the Accounting Firm with respect to the Parachute Tax or Deferred Compensation Tax payable by Executive. Executive shall make proper payment of the amount of any Parachute Tax or Deferred Compensation Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of his federal income tax return as filed with the Internal Revenue Service, and such right other documents reasonably requested by the Company, evidencing such payment. If prior to Payment under this Agreementthe filing of Executive’s federal income tax return, the Accounting Firm determines in conjunction good faith that the amount of the Gross-Up Paymentshould be reduced, Executive shall within five business days pay to the Company the amount of such reduction. (e) The fees and expenses of the Accounting Firm for its services in connection with all other Paymentsthe determinations and calculations contemplated by Sections 5(b) and (d) hereof shall be borne by the Company. If such fees and expenses are initially advanced by Executive, would cause the Participant to be considered to have Company shall reimburse Executive the full amount of such fees and expenses within five business days after receipt from Executive of a statement therefor and reasonable evidence of his payment thereof. (f) In the event that the Internal Revenue Service claims that any payment or benefit received a parachute payment under this Agreement constitutes an “excess parachute payment” within the meaning of Code Section 280G(b)(1), Executive shall notify the Company in writing of such claim. Such notification shall be given as soon as practicable but not later than 10 business days after Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30 day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that would have any payment of taxes with respect to such claim is due). If the effect Company notifies Executive in writing prior to the expiration of decreasing such period that it desires to contest such claim, Executive shall (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company and reasonably satisfactory to Executive; (iii) cooperate with the Company in good faith in order to effectively contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including, but not limited to, additional interest and penalties and related legal, consulting or other similar fees) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax amount received by basis, for and against for any Parachute Tax or income tax or other tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (g) The Company shall direct Executive with regard to all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the Participant as described taxing authority in clause (ii) respect of such claim and may, at its sole option, either direct Executive to pay the preceding sentence, then tax claimed and xxx for a refund or contest the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Paymentsclaim in any permissible manner and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the aggregateCompany shall determine; provided, equals however, that if the Safe Harbor Amount. To Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive on an interest-free basis (to the extent permitted by applicable law), and shall indemnify and hold Executive harmless, on an after tax basis, from any Parachute Tax or Deferred Compensation Tax (or other tax including interest and penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided, further, that the payment of any compensation or benefits to if Executive from the Company is required to be reduced by extend the statue of limitations to enable the Company to contest such claim, Executive may limit this Section 11, extension solely to such reduction contested amount. The Company’s right to direct Executivewith regard to the contest shall be implemented limited to issues with respect to whether and the extent to which a payment or benefit is an “excess parachute payment” pursuant to Code Section 280G(b)(1), the imposition of the Parachute Tax under Code Section 4999 and the imposition of the Deferred Compensation Tax under Code Section 409A, and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by determining the “Parachute Payment Ratio” Internal Revenue Service or any other taxing authority. In addition, the Company shall not direct Executive to take a position or agree to any final resolution if such position or resolution could reasonably be expected to adversely affect Executive unrelated to matters covered hereto, unless Executive consents in writing to such position or agreement. (as hereinafter definedh) for each parachute payment and then reducing If, after the parachute payments receipt by Executive of an amount advanced by the Company in order beginning connection with the parachute payment contest of the Parachute Tax or Deferred Compensation Tax claim, Executive receives any refund with respect to such claim, Executive shall promptly pay to the highest Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto); provided, however, if the amount of that refund exceeds the amount advanced by the Company Executive may retain such excess. If, after the receipt by Executive of an amount advanced by the Company in connection with a Parachute Payment Ratio. For parachute payments Tax or Deferred Compensation Tax claim, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the same Parachute Payment Ratio, Company does not notify Executive in writing of its intent to direct Executive to contest the denial of such parachute payments refund prior to the expiration of 30 days after such determination such advance shall be reduced based on deemed to be in consideration for services rendered after the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioTermination Date.

Parachute Payments. (a) Anything in Notwithstanding any section other provision of this Agreement other than this Section 11 Section, if it is determined that part or all of the compensation or benefits to be paid to the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment Employee under this Agreement shall be reduced if but only if: (i) such right to such Paymentin connection with the Employee's Severance Termination, taking into account all or under any other Payments to plan, arrangement or for Participantagreement, would cause any Payment to the Participant under this Agreement to be considered constitutes a "parachute payment" within under IRC §280G(b)(2), then the meaning of Section 280G(b)(2) of the Code as then in effect; and (ii) as a result of receiving amount constituting a parachute payment and paying any that would otherwise be payable to or for the benefit of the Employee shall be reduced (if required under such applicable tax (including Excise Tax) thereonlaw), but only to the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments extent necessary, so that such amount would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered not constitute a parachute payment. In the event that the receipt of any such right to Payment under this Agreementa reduction is required, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute cash payments shall be reduced based on the time of payment of such parachute paymentsfirst, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments then compensation and benefits not payable in cash shall be reduced on reduced, in each case in reverse order beginning with payments or benefits that are to be paid the farthest in time from the date of the reduction and in each case after giving effect to any payments and benefits that may have been received prior to termination. Any determination that a pro rata basis payment constitutes a parachute payment shall be made as promptly as practicable following the Employee's termination of employment (but not below zerolater than the date payment is required under subsection (b) of this Section) by the Tax Adviser (at the expense of the Corporation), whose determination shall be final and binding in all cases. Unless the Employee is given notice that a payment (or payments) will constitute a parachute payment prior to reducing the earlier of (1) receipt of such payments or (2) the tenth (10th) business day following his or her Severance Termination, no payment (or payments) shall be deemed to constitute a parachute payment. If the determination made pursuant to this subsection would result in a reduction, the Tax Adviser also shall determine which and how much of any particular entitlement shall be so reduced (to the extent required under such applicable law), in each case after giving effect to any payments with a lower Parachute Payment Ratioand benefits that may have been received prior to such termination, and shall advise the Employee and Corporation in writing within ten (10) business days of the determination of the reduction in payments.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 Notwithstanding anything to the contrary notwithstandingin this Agreement or otherwise, in the event it shall be determined that any Payment payment or benefit received or to be received by the Executive in connection with a Change in Control or the Executive's Separation from Service (whether pursuant to the terms of this Agreement or any other plan, policy, arrangement or agreement maintained or entered into by the Company (or any of its Affiliates or successors) or any Person whose actions result in a Change in Control (or any Person affiliated with such Person)) (all such payments and benefits, the "Parachute Payments") would be subject (in whole or in part) to an excise tax under Section 4999 of the Code (the "Excise Tax"), then the Parachute Payments shall either be (i) reduced (but not below zero) so that the present value of the Parachute Payments is one dollar less than three times the Executive's "base amount" (as hereinafter defineddefined in Section 280G(b)(3) would of the Code) so that no portion of the Parachute Payments shall be subject to the Excise Tax or (as hereinafter defined)ii) paid in full, whichever produces the right better net after-tax position to receive any Payment under this Agreement shall be reduced if but only if: the Executive (i) such right to such Payment, taking into account all the Excise Tax and any other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" within the meaning of Section 280G(b)(2applicable taxes). (b) The reduction of the Code as then Parachute Payments contemplated in effect; and (iiSection 5.03(a) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction above shall be implemented by determining the “Parachute Payment Ratio” Ratio (as hereinafter defined) defined below), as determined in good faith by the Company (or its successor), for each parachute payment Parachute Payment and then reducing the parachute payments Parachute Payments in order beginning with the parachute payment Parachute Payment with the highest Parachute Payment Ratio. For parachute payments Parachute Payments with the same Parachute Payment Ratio, such parachute payments Parachute Payments shall be reduced based on the time of payment of such parachute paymentsParachute Payments, with amounts having later payment dates being reduced first. For parachute payments Parachute Payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments Parachute Payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments Parachute Payments with a lower Parachute Payment Ratio.. For purposes hereof, the teini "Parachute Payment Ratio" shall mean a fraction, (i) the numerator of which is the value of the applicable 9 #91130319v6

Parachute Payments. (a) Anything Notwithstanding anything contained in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to the contrary, the Company, based on the advice of its legal or tax counsel, shall compute whether there would be considered a "any “excess parachute payment" payments” payable to Executive, within the meaning of Section 280G(b)(2) 280G of the Code as then in effect; and (ii) as a result Code, taking into account the total ‘‘parachute payments,” within the meaning of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereonSection 280G of the Code, the aggregate after-tax amounts received payable to Executive by the Participant from the Company under this Agreement and all Payments any other plan, agreement or otherwise. If there would be any excess parachute payments, the Company, based on the advice of its legal or tax counsel, shall compute the net after-tax proceeds related to such parachute payments, taking into account the excise tax imposed by Section 4999 of the Code, as if (i) such parachute payments were reduced, but not below zero, such that the total parachute payments payable to Executive would not exceed three (3) times the “base amount” as defined in Section 280G of the Code, less than One Dollar ($1.00), or (ii) the maximum full amount of such parachute payments were not reduced. If reducing the amount of such parachute payments otherwise payable would result in a greater after-tax amount that could to Executive, such reduced amount shall be received by Participant without causing any paid to Executive and the remainder shall be forfeited as of the date Executive’s employment terminates. If not reducing such Payment to be considered parachute payments otherwise payable would result in a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the greater after-tax amount received to Executive, then such parachute payments shall not be reduced. If such parachute payments are reduced pursuant to the foregoing, they will be reduced in the following order: first, by reducing any cash severance payments, then by reducing any fringe or other severance benefits, and finally by reducing any payments or benefits otherwise payable with respect to, or measured by, the Participant as described Company’s common stock (including without limitation by eliminating accelerated vesting, in clause (ii) each case starting with the installment or tranche last eligible to become vested absent the occurrence of the preceding sentenceChange in Control). Notwithstanding the foregoing, then to the extent the parties agree that any of the foregoing amounts payable under this Agreement are not parachute payments, such amounts shall not be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amountreduced. To the extent that the payment parties cannot agree as to whether any of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments are in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such fact parachute payments, the parties will designate, by mutual agreement, an unrelated third-party with amounts having later payment dates being reduced firsttax expertise to make the determination. For parachute payments with Notwithstanding any provision of this Section 3.2(d) to the same Parachute Payment Ratio and the same time of paymentcontrary, such parachute payments no amount shall be reduced on subject to reduction pursuant to this Section 3.2(d) to the extent the reduction would result in a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratioviolation of any applicable law.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 Notwithstanding anything to the contrary notwithstandingin this Agreement or otherwise, in the event it shall be determined that any Payment payment or benefit received or to be received by the Executive in connection with a Change in Control or the Executive's Separation from Service (whether pursuant to the terms of this Agreement or any other plan, policy, arrangement or agreement maintained or entered into by the Company (or any of its Affiliates or successors) or any Person whose actions result in a Change in Control (or any Person affiliated with such Person)) (all such payments and benefits, the "Parachute Payments") would be subject (in whole or in part) to an excise tax under Section 4999 of the Code (the "Excise Tax"), then the Parachute Payments shall either be (i) reduced (but not below zero) so that the present value of the Parachute Payments is one dollar less than three times the Executive's "base amount" (as hereinafter defineddefined in Section 280G(b)(3) would of the Code) so that no portion of the Parachute Payments shall be subject to the Excise Tax or (as hereinafter defined)ii) paid in full, whichever produces the right better net after-tax position to receive any Payment under this Agreement shall be reduced if but only if: the Executive (i) such right to such Payment, taking into account all the Excise Tax and any other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" within the meaning of Section 280G(b)(2applicable taxes). (b) The reduction of the Code as then Parachute Payments contemplated in effect; and (iiSection 5.03(a) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction above shall be implemented by determining detennining the “Parachute Payment Ratio” Ratio (as hereinafter defined) defined below), as determined in good faith by the Company (or its successor), for each parachute payment Parachute Payment and then reducing the parachute payments Parachute Payments in order beginning with the parachute payment Parachute Payment with the highest Parachute Payment Ratio. For parachute payments Parachute Payments with the same Parachute Payment Ratio, such parachute payments Parachute Payments shall be reduced based on the time of payment of such parachute paymentsParachute Payments, with amounts having later payment dates being reduced first. For parachute payments Parachute Payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments Parachute Payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments Parachute Payments with a lower Parachute Payment Ratio.. For purposes hereof, the term "Parachute Payment Ratio" shall mean a fraction, (i) the numerator of which is the value of the applicable 9 #91130319v6

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event that a Change in Control occurs and it shall be determined that any Payment (as hereinafter defined) would be subject to payment or distribution by the Excise Tax (as hereinafter defined)Company, the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments Bank or its Affiliates to or for Participantthe benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, would cause any Payment to the Participant under this Agreement to be considered a "constitute an “excess parachute payment" ” within the meaning of Section 280G(b)(2Code section 280G (each such payment, a “Parachute Payment”) and would result in the imposition on the Employee of an excise tax under Code section 4999, then, in addition to any other benefits to which the Employee is entitled under this Agreement or otherwise, the Employee shall be paid an amount in cash equal to the sum of the Code as then in effect; and (ii) as a result excise taxes payable by the Employee by reason of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, Parachute Payments plus the aggregate amount necessary to place the Employee in the same after-tax amounts received position (taking into account any and all applicable federal, state and local excise, income or other taxes at the highest possible applicable rates on such Parachute Payments (including, without limitation, any payments under this subparagraph 11.2(a)) as if no excise taxes had been imposed with respect to Parachute Payments (the “Parachute Gross-up”). In no event shall a Parachute Gross-up be payable under this subparagraph 11.2 in the absence of a Change in Control. Any Parachute Gross-up otherwise required by this subparagraph 11.2(a) shall not be made later than the Participant from time of the Company corresponding payment or benefit hereunder giving rise to the underlying Code section 4999 excise tax (to the extent such determination has been made prior to such time), even if the payment of the excise tax is not required under the Code until a later time. Any Parachute Gross-up otherwise required under this subparagraph 11.2(a) shall be made whether or not payments or benefits are payable under this Agreement and all Payments would be less than whether or not the maximum after-tax amount that could be received by Participant without causing any such Payment Employee’s employment with the Bank shall have been terminated. (b) All determinations to be considered a parachute payment. made under this subparagraph 11.2 shall be made by an independent public accounting firm chosen by the Company (the “Accounting Firm”). (c) In the event that the receipt Internal Revenue Service notifies the Employee of an inquiry with respect to the applicability of Code sections 280G or 4999 to any payment by the Bank or its Affiliates, or assessment of tax under Code section 4999 with respect to any payment by the Bank or its Affiliates, the Employee shall provide notice to the Bank of such inquiry or assessment within 10 days, and shall take no action with respect to such inquiry or assessment until the Bank has responded thereto (provided such response is timely with respect to the inquiry or assessment). The Bank shall have the right to Payment under this Agreementappoint an attorney or accountant to represent the Employee, with respect to such inquiry or assessment, and the Employee shall fully cooperate with such representative as a condition of receiving a Parachute Gross-up with respect to such inquiry or assessment. (d) All of the fees and expenses of the Accounting Firm in conjunction with all other Paymentsperforming the determinations referred to in subparagraphs (a) and (b) above, would cause or of the Participant representative appointed pursuant to subparagraph (c) above, shall be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received borne solely by the Participant as described in clause Bank. (iie) Notwithstanding the foregoing, if the imposition of a Code section 4999 excise tax could be avoided by a reduction of the preceding sentencepayments due to the Employee (determined before application of subparagraph 11.2(a)) by an amount of 10% or less, then the amounts payable under this Agreement shall be reduced so that the Parachute Value total of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on to an amount one dollar ($1 .00) below the time amount that would cause a Code section 4999 excise tax to be imposed, and subparagraph 11.2 (a) shall not apply. (f) Notwithstanding any provision of payment of such parachute paymentsthis subparagraph 11.2 to the contrary, with amounts having later payment dates being reduced first. For parachute payments in accordance with the same requirements of Code section 409A, any Parachute Payment Ratio and the same time of payment, such parachute payments Gross-Up payable hereunder shall be reduced on a pro rata basis paid not later than the end of the calendar year next following the calendar year in which the Employee or Company (but not below zeroas applicable) prior to reducing parachute payments with a lower remits the taxes for which the Parachute Payment RatioGross-Up is being paid.

Parachute Payments. [Xx. Xxxxxxxx] (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" within the meaning of Section 280G(b)(2) of the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratio.

Parachute Payments. 1. If Executive is liable for the payment of any excise tax (athe "Basic Excise Tax") Anything in pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any section of successor or like provision, with respect to any payment or property transfers received or to be received under this Agreement other than this or otherwise (the "Payments"), the Company shall pay Executive an amount (the "Reimbursement Payment") which, after payment to Executive (or on Executive's behalf) of any federal, state and local taxes, including, without limitation, any further excise tax under said Section 11 4999 with respect to or resulting from the contrary notwithstandingReimbursement Payment, in equals the event net amount of the Basic Excise Tax. Notwithstanding the foregoing, if it shall be determined that any Payment (as hereinafter defined) Executive is entitled to a Reimbursement Payment, but that the Payments would not be subject to the Excise Tax (if the Payments were reduced by an amount that is less than 10% of the portion of the Payments that would be treated as hereinafter defined)"parachute payments" under Section 280G of the Code, then the right amounts payable to receive any Payment Executive under this Agreement shall be reduced if (but only if: (inot below zero) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" within the meaning of Section 280G(b)(2) of the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received paid to Executive without giving rise to the Excise Tax (the "Safe Harbor Cap"), and no Reimbursement Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by Participant without causing any such Payment method of reduction elected by Executive. For purposes of reducing the Payments to be considered a parachute payment. In the event that the receipt of any such right to Payment under this AgreementSafe Harbor Cap, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment only amounts payable under this Agreement that would have (and no other Payments) shall be reduced. If the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) reduction of the preceding sentenceamounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, then the no amounts payable under this Agreement shall be reduced so pursuant to this provision. 2. Subject to the provisions of paragraph VII.I, all determinations required to be made under this Agreement, including whether and when a Reimbursement Payment is required, the amount of such Reimbursement Payment, the amount of any Option Redetermination (as defined below), the reduction of the Payments to the Safe Harbor Cap and the assumptions to be utilized in arriving at such determinations, shall be made by the public accounting firm that is retained by the Parachute Value Company as of all Paymentsthe date immediately prior to the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and Executive within ten (10) business days of the receipt of notice from the Company or Executive that there has been a Payment, or such earlier time as is requested by the Company (collectively, the "Determination"). Notwithstanding the foregoing, in the aggregateevent (i) the Board shall determine prior to the Change in Control that the Accounting Firm is precluded from performing such services under applicable auditor independence rules or (ii) the Audit Committee of the Board determines that it does not want the Accounting Firm to perform such services because of auditor independence concerns or (iii) the Accounting Firm is serving as accountant or auditor for the person(s) effecting the Change in Control, equals the Board shall appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company and the Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Reimbursement Payment under this Agreement with respect to any Payments shall be made no later than thirty (30) days following such Payment. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall furnish Executive with a written opinion to such effect, and to the effect that failure to report the Excise Tax, if any, on Executive's applicable federal income tax return will not result in the imposition of a negligence or similar penalty. In the event the Accounting Firm determines that the Payments shall be reduced to the Safe Harbor AmountCap, it shall furnish Executive with a written opinion to such effect. To The Determination by the extent that the payment of any compensation or benefits to Executive from Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the Determination, it is possible that Reimbursement Payments which will not have been made by the Company should have been made ("Underpayment") or Reimbursement Payments are made by the Company which should not have been made ("Overpayment"), consistent with the calculations required to be made hereunder. In the event the amount of the Reimbursement Payment is less than the amount necessary to reimburse Executive for the Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment (together with interest at the rate provided in Section 1274(b) (2) (B) of the Code) shall be promptly paid by the Company to or for the benefit of Executive. In the event the amount of the Reimbursement Payment exceeds the amount necessary to reimburse Executive for the Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive (to the extent Executive has received a refund if the applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Company. Executive shall cooperate; to the extent Executive's expenses are reimbursed by the Company, with any reasonable requests by the Company in connection with any contests or disputes with the Internal Revenue Service in connection with the Excise Tax. 3. In the event that the Company makes a Reimbursement Payment to Executive and subsequently the Company determines that the value of any accelerated vesting of stock options held by Executive shall be redetermined pursuant to Treasury Regulation §1.280G-1 Q/A 33 (the "Option Redetermination"), Executive shall (i) file with the Internal Revenue Service an amended federal income tax return that claims a refund of the overpayment of the Excise Tax attributable to such Option Redetermination and (ii) promptly pay to the Company any excise tax which is refunded to Executive; provided, that the Company shall pay all reasonable professional fees incurred in the preparation of Executive's amended federal income tax return. If the Option Redetermination occurs in the same year that the Reimbursement Payment is included in the Executive's taxable income, then in addition to returning the refund to the Company, Executive will also promptly return to the Company any tax benefit realized by the return of such refund and the return of the additional tax benefit payment. In the event that amounts payable to Executive under this Agreement were reduced by pursuant to the second sentence of subparagraph VII.I of this Section 1110(f) and subsequently Executive determines there has been an Option Redetermination that reduces the value of the Payments attributable to such options, the Company shall promptly pay to Executive any amounts payable under this Agreement that were not previously paid solely as a result of such reduction second sentence of subparagraph (i) of this Section 10(f) up to the Safe Harbor Cap. All determinations pursuant to this sub-paragraph (iii) shall be implemented made by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioAccounting Firm.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event that a Change in Control occurs and it shall be determined that any Payment (as hereinafter defined) would be subject to payment or distribution by the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments Company or its Affiliates to or for Participantthe benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, would cause any Payment to the Participant under this Agreement to be considered a "constitute an “excess parachute payment" ” within the meaning of Section 280G(b)(2Code section 280G (each such payment, a “Parachute Payment”) and would result in the imposition on the Employee of an excise tax under Code section 4999, then, in addition to any other benefits to which the Employee is entitled under this Agreement or otherwise, the Employee shall be paid an amount in cash equal to the sum of the Code as then in effect; and (ii) as a result excise taxes payable by the Employee by reason of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, Parachute Payments plus the aggregate amount necessary to place the Employee in the same after-tax amounts received position (taking into account any and all applicable federal, state and local excise, income or other taxes at the highest possible applicable rates on such Parachute Payments (including, without limitation, any payments under this subparagraph 11.2(a)) as if no excise taxes had been imposed with respect to Parachute Payments (the “Parachute Gross-up”). In no event shall a Parachute Gross-up be payable under this subparagraph 11.2 in the absence of a Change in Control. Any Parachute Gross-up otherwise required by this subparagraph 11.2(a) shall not be made later than the Participant from time of the Company corresponding payment or benefit hereunder giving rise to the underlying Code section 4999 excise tax (to the extent such determination has been made prior to such time), even if the payment of the excise tax is not required under the Code until a later time. Any Parachute Gross-up otherwise required under this subparagraph 11.2(a) shall be made whether or not payments or benefits are payable under this Agreement and all Payments would be less than whether or not the maximum after-tax amount that could be received by Participant without causing any such Payment Employee’s employment with the Company shall have been terminated. (b) All determinations to be considered a parachute payment. made under this subparagraph 11.2 shall be made by an independent public accounting firm chosen by the Company (the “Accounting Firm”). (c) In the event that the receipt Internal Revenue Service notifies the Employee of an inquiry with respect to the applicability of Code sections 280G or 4999 to any payment by the Company or its Affiliates, or assessment of tax under Code section 4999 with respect to any payment by the Company or its Affiliates, the Employee shall provide notice to the Company of such inquiry or assessment within 10 days, and shall take no action with respect to such inquiry or assessment until the Company has responded thereto (provided such response is timely with respect to the inquiry or assessment). The Company shall have the right to Payment under this Agreementappoint an attorney or accountant to represent the Employee with respect to such inquiry or assessment, and the Employee shall fully cooperate with such representative as a condition of receiving a Parachute Gross-up with respect to such inquiry or assessment. (d) All of the fees and expenses of the Accounting Firm in conjunction with all other Paymentsperforming the determinations referred to in subparagraphs (a) and (b) above, would cause or of the Participant representative appointed pursuant to subparagraph (c) above, shall be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received borne solely by the Participant as described in clause Company. (iie) Notwithstanding the foregoing, if the imposition of a Code section 4999 excise tax could be avoided by a reduction of the preceding sentencepayments due to the Employee (determined before application of subparagraph 11.2(a)) by an amount of 10% or less, then the amounts payable under this Agreement shall be reduced so that the Parachute Value total of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on to an amount one dollar ($1.00) below the time amount that would cause a Code section 4999 excise tax to be imposed, and subparagraph 11.2 (a) shall not apply. (f) Notwithstanding any provision of payment of such parachute paymentsthis subparagraph 11.2 to the contrary, with amounts having later payment dates being reduced first. For parachute payments in accordance with the same requirements of Code section 409A, any Parachute Payment Ratio and the same time of payment, such parachute payments Gross-Up payable hereunder shall be reduced on a pro rata basis paid not later than the end of the calendar year next following the calendar year in which the Employee or Company (but not below zeroas applicable) prior to reducing parachute payments with a lower remits the taxes for which the Parachute Payment RatioGross-Up is being paid.

Parachute Payments. (a) Anything Notwithstanding anything in any section of this Agreement other than this Section 11 to the contrary notwithstandingcontrary, in if the event it shall be Executive is a “disqualified individual” within the meaning set forth under Treasury Regulation Section 1.280G-1, Q/A-15, as determined that by the Company, then any Payment (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "that constitutes an “excess parachute payment" ” within the meaning of Section 280G(b)(2) 280G of the Code as then in effect; and (ii) as a result of receiving a parachute payment an “Excess Parachute Payment”), shall be expressly conditioned upon disclosure to and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received approval by the Participant from Company’s stockholders in compliance with Treasury Regulation Section 1.280G-1, Q/A-7 (the Company under this Agreement “Stockholder Approval Exemption Requirements”). The Board agrees to submit to the Company’s stockholders and all Payments would be less than to recommend their approval of, (i) the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered potential payments payable upon a parachute payment. In the event that the receipt termination of any such right to Payment employment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) the potential payments payable to Executive under the Company Transaction Management Incentive Plan, and (iii) any other payment that would, absent such stockholder approval, constitute an Excess Parachute Payment, in accordance with the Stockholder Approval Exemption Requirements. If such stockholder approval is not obtained, the amount of the preceding sentence, then the amounts payable under this Agreement payments shall be reduced as necessary so that the no Excess Parachute Value of all Payments, in the aggregate, equals the Safe Harbor AmountPayment shall be paid. To the extent that the Company has equity securities that are readily tradable on an established securities market or otherwise, so as to render the Stockholder Approval Exemption Requirements referenced above unavailable, then any payment of that the Executive is entitled to receive under this Agreement or any compensation other agreement, plan or arrangement that would (if paid), either alone or in the aggregate with other payments or benefits payable to Executive from the Executive, constitute an Excess Parachute Payment, will either (i) be delivered in full, or (ii) be limited to the minimum extent necessary to ensure that no portion thereof, along with any other payments or benefits payable to the Executive, will fail to be tax-deductible to the Company is by reason of Section 280G of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state or local income and employment taxes and the excise tax imposed under Section 4999 of the Code, results in the receipt by the Executive, on an after-tax basis, of the greatest amount of payments under this Agreement or any other agreement, plan or arrangement, notwithstanding that all or some portion of such payments may be subject to the excise tax imposed under Section 4999 of the Code. All determinations required to be reduced by this Section 11, such reduction made hereunder shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments made in order beginning consultation with the parachute payment with Company’s independent public accounting firm and at the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioCompany’s expense.

Parachute Payments. (a) Anything in any section In the event that prior to the application of the provisions of this Section 6 the Retention Bonus, Severance Benefits or other payments and benefits provided for in this Agreement other than this Section 11 or otherwise payable to the contrary notwithstandingEmployee (including without limitation any vesting or payment with respect to options) (collectively, in a “Payment”) (i) constitute “parachute payments” within the event it shall be determined that any Payment meaning of Section 280G of the Internal Revenue Code of 1986, as amended (as hereinafter definedthe “Code”) and (ii) would be subject to the Excise Tax excise tax imposed by Section 4999 of the Code (as hereinafter definedthe “Parachute Tax”), then the right to receive any Payment Employee’s Retention Bonus and Severance Benefits under this Agreement shall be reduced if but only ifpayable as follows: (i) such right If the amount of the Employee’s “excess parachute payments” is less than or equal to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to 110% of the Participant under this Agreement to be considered a "parachute payment" within the meaning of Employee’s “base amount” (each as determined in accordance with Section 280G(b)(2) 280G of the Code as and the regulations thereunder) the Retention Bonus and Severance Benefits shall be reduced (first by reducing the cash payments under this Agreement, then in effect; andby reducing any fringe or other benefits (including without limitation any accelerated vesting of equity based compensation awards) required to be provided under this Agreement, and then by reducing the payments and/or benefits under any other plan, arrangement or agreement) to an amount which is ten dollars (U.S.$10.00) less than the amount of the Payments that could be made to the Employee before any portion of the Payments would be subject to the Parachute Tax. (ii) If the amount of the Employee’s “excess parachute payments” is greater than 110% of the Employee’s “base amount” (each as determined in accordance with Section 280G of the Code and the regulations thereunder) then the Company shall pay to the Employee, prior to the time the Parachute Tax is payable with respect to such Payments, an additional payment (a result “Gross-Up Payment”) in an amount such that, after payment by the Employee of receiving a parachute payment and paying any applicable tax all taxes (including Excise any Parachute Tax) thereonimposed upon the Gross-Up Payment, the aggregate afterEmployee retains an amount of the Gross-tax amounts received Up Payment equal to the Parachute Tax imposed upon the Payment. (b) Unless the Company and the Employee otherwise agree in writing, any determination required under this Section shall be made in writing by the Participant from Company’s independent public 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, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make the determinations under this Agreement and Section. The Company shall bear all Payments would be less than costs the maximum after-tax amount that could be received by Participant without causing Accountants may reasonably incur in connection with any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced calculations contemplated by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioSection.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event If it shall be determined that any Payment payment, distribution or benefit received or to be received by Employee from Employer pursuant to this Agreement (as hereinafter defined"PAYMENTS") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "CODE") (such tax referred to as the "EXCISE TAX"), then Employee shall be entitled to receive an additional payment from Bally (the "EXCISE TAX GROSS-UP PAYMENT") in an amount such that the net amount retained by Employee, after the calculation and deduction of any Excise Tax on the Payments (as hereinafter defined)together with any penalties and interest that have been or will be imposed on Employee in connection therewith) and any federal, state and local income taxes, Excise Taxes and payroll taxes (including the right to receive any tax imposed by Section 3101(b) of the Code) on the Excise Tax Gross-Up Payment under provided for in this Agreement Section 10, shall be reduced if but only if: (i) such right equal to such Paymentthe Payments. In computing the amount of this payment, it shall be assumed that Employee is subject to tax by each taxing jurisdiction at the highest marginal tax rate in the respective taxing jurisdiction of Employee, taking into account all the city and state in which Employee resides, but giving effect to the tax benefit, if any, which Employee may enjoy to the extent that any such tax is deductible in determining the tax liability of any other taxing jurisdiction (provided that the highest marginal tax rate for federal income tax purposes shall be determined under Section 1 of the Code). (b) All determinations required to be made under this Section 10, including whether and when an Excise Tax Gross-Up Payment is required and the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, except as specified in Section 10(a), shall be made by Employer's independent auditors (the "ACCOUNTING FIRM"), which shall provide detailed supporting calculations both to Employer and Employee within 15 business days after Employer makes any Payments to Employee. The determination of tax liability and the assumptions made by the Accounting Firm shall be subject to review by Employee's tax advisor, and, if Employee's tax advisor does not agree with the determination reached by the Accounting Firm, then the Accounting Firm and Employee's tax advisor shall jointly designate a nationally-recognized public accounting firm within five (5) business days after notice has been given to Employer of Employee's disagreement with the Accounting Firm's calculation, which shall make the determination within 15 business days after its appointment. If the parties cannot agree on a nationally recognized public accounting firm, then both parties shall select a nationally recognized public accounting firm who shall then jointly select a third nationally recognized public accounting firm which shall make the determination within 15 business days after its appointment. All fees and expenses of the accountants and tax advisors retained by either Employee or for ParticipantEmployer shall be borne by Employer. Any Excise Tax Gross-Up Payment, would cause any Payment as determined pursuant to this Section 10, shall be paid by Employer to Employee within five (5) days after the Participant under this Agreement receipt of the determination, subject to applicable federal, state, local and Excise Tax withholding requirements. Any determination by a jointly designated public accounting firm shall be considered binding upon Employer and Employee, and shall not be subject to arbitration pursuant to Section 17. (c) As a "parachute payment" within result of the meaning uncertainty in the application of Section 280G(b)(2) 4999 of the Code as then in effect; and (ii) as a result at the time of receiving a parachute payment and paying any applicable tax (including the initial determination hereunder, it is possible that Excise Tax) thereon, Tax Gross-Up Payments will not have been made by Employer that should have been made consistent with the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment calculations required to be considered a parachute paymentmade hereunder ("UNDERPAYMENT"). In the event that the receipt IRS, on audit, asserts that Employee has made an underpayment and Employee is required (by reason of settlement or otherwise) to make a payment of any Excise Tax, or if Employee is required to make one or more payments of Excise Tax to the IRS (and/or interest or penalties thereon) upon the filing of his original or amended tax returns which exceed the amounts taken into account in determining the initial Excise Tax Gross-Up Payment made pursuant to Sections 10(a) and 10(b), then in either of such right events any such Underpayment calculated in accordance with and in the same manner as the Excise Tax Gross-Up Payment in Section 10(a) shall be promptly paid by Employer to Payment under this Agreementor for the benefit of Employee. In addition, in conjunction with all other PaymentsEmployer will pay Employee an amount equal to any penalties, would cause the Participant interest or additions to be considered assessed against him as a result of the underpayment, which amounts shall be grossed up for any federal, state, local or Excise Taxes payable with respect to have received such penalties, interest or additions to tax such that Employee receives a parachute payment under this Agreement that would have net amount equal to the effect of decreasing penalties, interest and additions to tax assessed against him (determined in the after-tax amount received by the Participant same manner as described in clause Section 10(a). Employee shall not be obligated to contest any proposed assessment of any Underpayment and may settle any such audit action or proceeding involving an Underpayment at his discretion; provided, however, that Employee shall, upon notice of examination by the Internal Revenue Service, give notice thereof to Employer and Employer, at its sole cost and in its sole discretion, may, on behalf of Employee, defend and contest against any proposed Internal Revenue Service deficiency. In the event that Employer assumes the defense of the proposed deficiency, the Employer shall immediately, upon written request of the Employee secure all of its possible obligations to the Employee as provided for in this Section 10(c) by either posting cash collateral in escrow or providing Employee with a "clean irrevocable letter of credit" in the amount of all of the Employer's possible obligations to the Employee pursuant to this Section 10(c). The terms of such escrow or clean irrevocable letter of credit shall be negotiated by Employer and Employee at such time and any dispute relating to such matters shall be settled in an arbitration pursuant to Section 17 of this Agreement. Employee agrees to execute any documents, including Powers of Attorney, that may be necessary to facilitate Employer's defense and/or contesting the Internal Revenue Service's assertions. In the event that the Excise Tax Gross-Up Payment exceeds the amount subsequently determined to be due, such excess shall constitute a loan from Employer to Employee payable on the fifth day after demand by Employer (iitogether with interest at the rate provided in Section 1274(b)(2)(B) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioCode).

Parachute Payments. If any payment or benefit you would receive pursuant to a Change of Control from the Company or otherwise (a“Payment”) Anything in any section would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) but for this Agreement other than this Section 11 sentence, be subject to the contrary notwithstandingexcise tax imposed by Section 4999 of the Code (the “Excise Tax”), in the event it then such Payment shall be determined reduced to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that any would result in no portion of the Payment being subject to the Excise Tax or (as hereinafter definedy) would the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in your receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax (as hereinafter defined)Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount and none of the parachute payments are non-qualified deferred compensation subject to Section 409A of the Code, then the right reduction shall occur in the manner you elect in writing prior to receive the date of payment. If any Payment under this Agreement parachute payment constitutes non-qualified deferred compensation subject to Section 409A or you fail to elect an order, then the reduction shall be reduced if but only if: occur in the following order: first a pro rata reduction of (i) such right cash payments subject to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" within the meaning of Section 280G(b)(2) 409A of the Code as then in effect; and non-qualified deferred compensation and (ii) cash payments not subject to Section 409A of the Code, and second a pro rata cancellation of accelerated vesting of (i) equity-based compensation subject to Section 409A of the Code as a result of receiving a parachute payment non-qualified deferred compensation and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) equity-based compensation not subject to Section 409A of the preceding sentenceCode, then with, in each case, the amounts payable under this Agreement cancellation of accelerated vesting being applied first to vesting that is not subject to Treasury Regulation section 1.280G-1 Q/A 24(c) and subsequently to vesting that is subject to such section. Reduction in either cash payments or equity compensation benefits shall be reduced so that made pro rata between and among benefits which are subject to Section 409A of the Parachute Value Code and benefits which are exempt from Section 409A of all Payments, in the aggregate, equals the Safe Harbor AmountCode. To the extent that the payment of any compensation or benefits to Executive from The accounting firm engaged by the Company is for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be reduced by this Section 11, such reduction made hereunder. Any good faith determination of the accounting firm made hereunder shall be implemented by determining final, binding and conclusive upon the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment Company and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratioyou.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 Notwithstanding anything to the contrary notwithstandingin this Agreement or otherwise, in the event it shall be determined that any Payment payment or benefit received or to be received by the Executive in connection with a Change in Control or the Executive’s Separation from Service (whether pursuant to the terms of this Agreement or any other plan, policy, arrangement or agreement maintained or entered into by the Company (or any of its Affiliates or successors) or any Person whose actions result in a Change in Control (or any Person affiliated with such Person)) (all such payments and benefits, the “Parachute Payments”) would be subject (in whole or in part) to an excise tax under Section 4999 of the Code (the “Excise Tax”), then the Parachute Payments shall either be (i) reduced (but not below zero) so that the present value of the Parachute Payments is one dollar less than three times the Executive’s “base amount” (as hereinafter defineddefined in Section 280G(b)(3) would of the Code) so that no portion of the Parachute Payments shall be subject to the Excise Tax or (as hereinafter defined)ii) paid in full, whichever produces the right better net after-tax position to receive any Payment under this Agreement shall be reduced if but only if: the Executive (i) such right to such Payment, taking into account all the Excise Tax and any other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" within the meaning of Section 280G(b)(2applicable taxes). (b) The reduction of the Code as then Parachute Payments contemplated in effect; and (iiSection 5.03(a) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction above shall be implemented by determining the “Parachute Payment Ratio” Ratio (as hereinafter defined) defined below), as determined in good faith by the Company (or its successor), for each parachute payment Parachute Payment and then reducing the parachute payments Parachute Payments in order beginning with the parachute payment Parachute Payment with the highest Parachute Payment Ratio. For parachute payments Parachute Payments with the same Parachute Payment Ratio, such parachute payments Parachute Payments shall be reduced based on the time of payment of such parachute paymentsParachute Payments, with amounts having later payment dates being reduced first. For parachute payments Parachute Payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments Parachute Payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments Parachute Payments with a lower Parachute Payment Ratio. For purposes hereof, the term “Parachute Payment Ratio” shall mean a fraction, (i) the numerator of which is the value of the applicable Parachute Payment (as calculated for purposes of Section 280G of the Code), and (ii) the denominator of which is the intrinsic (i.e., economic) value of such Parachute Payment.

Parachute Payments. (a) Anything in If it is determined (as hereafter provided) that by reason of any section payment or Option vesting occurring pursuant to the terms of this Agreement (or otherwise under any other than this Section 11 to agreement, plan or program) upon a Change in Control (collectively, a "Payment"), the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) Executive would be subject to the Excise Tax excise tax imposed by Code Section 4999 (as hereinafter definedthe "Parachute Tax"), then the right Executive shall be entitled to receive an additional payment or payments (a "Gross-Up Payment") in an amount such that, after payment by the Executive of all taxes (including any Parachute Tax) imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Parachute Tax imposed upon the Payment. (b) Subject to the provisions of Section 7(a) hereof, all determinations required to be made under this Section 7, including whether a Parachute Tax is payable by the Executive and the amount of such Parachute Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by the nationally recognized firm of certified public accountants (the "Accounting Firm") used by the Employer prior to the Change in Control (or, if such Accounting Firm declines to serve, the Accounting Firms hall be a nationally recognized firm of certified public accountants selected by the Executive). The Accounting Firm shall be directed by the Employer or the Executive to submit its preliminary determination and detailed supporting calculations to both the Employer and the Executive within 15 calendar days after the determination date, if applicable, and any other such time or times as may be requested by the Employer or the Executive. If the Accounting Firm determines that any Parachute Tax is payable by the Executive, the Employer shall pay the required Gross-Up Payment to, or for the benefit of, the Executive within five business days after receipt of such determination and calculations. If the Accounting Firm determines that no Parachute Tax is payable by the Executive, it shall, at the same time as it makes such determination, furnish the Executive with an opinion that he has substantial authority not to report any Parachute Tax on his federal tax return. Any good faith determination by the Accounting Firm as to the amount of the Gross-Up Payment shall be binding upon the Employer and the Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce the Employer's obligation to provide any Gross-Up Payments that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Code Section 4999 at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Employer should have been made (an "Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Employer exhausts or fails to pursue its remedies pursuant to Section 7(f) hereof and the Executive thereafter is required to make a payment of any Parachute Tax, the Executive shall direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Employer and the Executive as promptly as possible. Any such Underpayment shall be promptly paid by the Employer to, or for the benefit of, the Executive within five business days after receipt of such determination and calculations. (c) The Employer and the Executive shall provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Employer or the Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by Section 7(b) hereof. (d) The federal tax returns filed by the Executive (or any filing made by a consolidated tax group which includes the Employer) shall be prepared and filed on a basis consistent with the determination of the Accounting Firm with respect to the Parachute Tax payable by the Executive. The Executive shall make proper payment of the amount of any Parachute Tax, and at the request of the Employer, provide to the Employer true and correct copies (with any amendments) of his federal income tax return as filed with the Internal Revenue Service, and such other documents reasonably requested by the Employer, evidencing such payment. If prior to the filing of the Executive's federal income tax return, the Accounting Firm determines in good faith that the amount of the Gross-Up Payment should be reduced, the Executive shall within five business days pay to the Employer the amount of such reduction. (e) The fees and expenses of the Accounting Firm for its services in connection with the determination and calculations contemplated by Sections 7(b) and (d) hereof shall be borne by the Employer. If such fees and expenses are initially advanced by the Executive, the Employer shall reimburse the Executive the full amount of such fees and expenses within five business days after receipt from the Executive of a statement therefor and reasonable evidence of his payment thereof. (f) In the event that the Internal Revenue Service claims that any payment or benefit received under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a constitutes an "excess parachute payment" within the meaning of Code Section 280G(b)(2) 280G(b)(1), the Executive shall notify the Employer in writing of such claim. Such notification shall be given as soon as practicable but not later than 10 business days after the Executive is informed in writing of such claim and shall apprise the Employer of the Code as then nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30 day period following the date on which the Executive gives such notice to the Employer (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Employer notifies the Executive in effectwriting prior to the expiration of such period that it desires to contest such claim, the Executive shall (i) give the Employer any information reasonably requested by the Employer relating to such claim; and (ii) take such action in connection with contesting such claim as the Employer shall reasonably request in writing from time to time, including without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Employer and reasonably satisfactory to the Executive; (iii) cooperate with the Employer in good faith in order to effectively contest such claim; and (iv) permit the Employer to participate in any proceedings relating to such claim; PROVIDED, HOWEVER, that the Employer shall bear and pay directly all costs and expenses (including, but not limited to, additional interest and penalties and related legal, consulting or other similar fees) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for and against for any Parachute Tax or income tax or other tax (including interest and penalties with respect thereto) imposed as a result of receiving such representation and payment of costs and expenses. (g) The Employer shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue xxx a parachute payment refund or contest the claim in any permissible manner and paying the Executive agrees to prosecute such contest to a determination before any applicable tax (including Excise Tax) thereonadministrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Employer shall determine; PROVIDED, HOWEVER, that if the Employer directs the Executive to pay such claim and sue xxx a refund, the aggregate afterEmployer shall advance the amount of such payment to the Executive on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after tax amounts received by basis, from any Parachute Tax (or other tax, including interest and penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and PROVIDED, FURTHER, that if the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to extend the statute of limitations to enable the Employer to contest such claim, the Executive may limit this extension solely to such contested amount. The Employer's control of the contest shall be reduced limited to issues with respect to which a corporate deduction would be disallowed pursuant to Code Section 280G and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by this Section 11the Internal Revenue Service or any other taxing authority. In addition, no position may be taken nor any final resolution be agreed to by the Employer without the Executive's consent if such position or resolution could reasonably be expected to adversely affect the Executive unrelated to matters covered hereto. (h) If, after the receipt by Executive of an amount advanced by the Employer in connection with the contest of the Parachute Tax claim, the Executive receives any refund with respect to such claim, the Executive shall promptly pay to the Employer the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto); PROVIDED, HOWEVER, if the amount of that refund exceeds the amount advanced by the Employer, the Executive may retain such excess. If, after the receipt by the Executive of an amount advanced by the Employer in connection with a Parachute Tax claim, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Employer does not notify the Executive in writing of its intent to contest the denial of such refund prior to the expiration of 30 days after such determination, such reduction advance shall be implemented by determining deemed to be in consideration for services rendered after the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time Date of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioTermination.

Parachute Payments. (a) Anything in If any section of amount, entitlement, or benefit paid or payable to the Executive or provided for his benefit under this Agreement and under any other than this Section 11 agreement, plan or program of the Company or any of its affiliates (such payments, entitlements and benefits referred to as a “Payment”) is subject to the contrary notwithstandingexcise tax imposed under Code section 4999, or any similar federal or state law (an “Excise Tax”), then notwithstanding anything contained in this Agreement to the event it shall be determined contrary, to the extent that any Payment (as hereinafter defined) or all Payments would be subject to the imposition of an Excise Tax (as hereinafter defined)Tax, the right to receive any Payment under this Agreement Payments shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" within the meaning of Section 280G(b)(2) of the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) if and to the extent that such reduction would result in the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the imposition of the Excise Tax), than if the Executive received all of the Payments (such reduced amount is hereinafter referred to as the “Limited Payment Amount”). Unless the Executive shall have given prior written notice specifying a different order to the Company to effectuate the limitations described in the preceding sentence, the Company shall reduce or eliminate the Payments, by first reducing parachute or eliminating those payments or benefits which are not payable in cash and then by reducing or eliminating cash payments, 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 notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement, including, but not limited to, the other provisions of this Agreement, governing the Executive’s rights and entitlements to any compensation, entitlement or benefit. (b) All calculations under this Section 11 shall be made by a lower Parachute nationally recognized accounting firm designated by the Company and reasonably acceptable to the Executive (other than the accounting firm that is regularly engaged by any party who has effectuated a Change in Control) (the “Accounting Firm”). The Company shall pay all fees and expenses of such Accounting Firm. The Accounting Firm shall provide its calculations, together with detailed supporting documentation, both to the Company and the Executive within 45 days after the Change in Control or the date of termination, whichever is later (or such earlier time as is requested by the Company) and, with respect to the Limited Payment RatioAmount, shall deliver its opinion to the Executive that he is not required to report any Excise Tax on his federal income tax return with respect to the Limited Payment Amount (collectively, the “Determination”). Within 15 days of the Executive’s receipt of the Determination, the Executive shall have the right to dispute the Determination (the “Dispute”). The existence of the Dispute shall not in any way affect the right of the Executive to receive the Payments in accordance with the Determination. If there is no Dispute, the Determination by the Accounting Firm shall be final binding and conclusive upon the Company and the Executive (except as provided in subsection (c) below). (c) If, after the Payments have been made to the Executive, it is established that the Payments made to, or provided for the benefit of, the Executive exceed the limitations provided in subsection (a) above (an “Excess Payment”) or are less than such limitations (an “Underpayment”), as the case may be, then the provisions of this subsection (c) shall apply. If it is established pursuant to a final determination of a court or an Internal Revenue Service (the “IRS”) proceeding which has been finally and conclusively resolved, that an Excess Payment has been made, the Executive shall repay the Excess Payment to the Company on demand. In the event that it is determined by (i) the Accounting Firm, the Company (which shall include the position taken by the Company, or together with 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 the satisfaction of the Executive of the Dispute, that an Underpayment has occurred, the Company shall pay an amount equal to the Underpayment to the Executive within 10 days of such determination or resolution together with interest on such amount at the applicable federal short-term rate, as defined under Code section 1274(d) and as in effect on the first date that such amount should have been paid to the Executive under this Agreement, from such date until the date that such Underpayment is made to the Executive, provided, however that the foregoing payment shall be made no later than the end of the year following the year in which the Executive remits the applicable taxes..

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right In the event that any payments or benefits to such Paymentwhich Executive becomes entitled in accordance with the provisions of this Restated Agreement (or any other agreement with the Company or other member of the Employer Group, taking into account all other Payments to or for Participant, as defined below) would cause any Payment to the Participant otherwise constitute a parachute payment under this Agreement to be considered a "parachute payment" within the meaning of Section 280G(b)(2) of the Code, then such payments and/or benefits will be subject to reduction to the extent necessary to assure that the Executive receives only the greater of (i) the amount of those payments which would not constitute such a parachute payment or (ii) the amount which yields the Executive the greatest after-tax amount of benefits after taking into account any excise tax imposed under Section 4999 of the Code as then on the payments and benefits provided the Executive under this Restated Agreement (or on any other payments or benefits to which the Executive may become entitled in effect; andconnection with any change in control or ownership of the Company or the subsequent termination of his employment with the Company). (ii) as Should a result reduction in benefits be required to satisfy the benefit limit of receiving a Section 6(d)(i), then the portion of any parachute payment and paying any applicable tax (including Excise Tax) thereonotherwise payable in cash to the Executive shall be reduced to the extent necessary to comply with such benefit limit, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any with such Payment reduction to be considered a applied first to the lump sum Cash Severance Payment and then (if applicable) pro-rata to each Monthly Benefit Payment but without any change in the payment dates. Should such benefit limit still be exceeded following such reduction, then the number of shares which would otherwise vest on an accelerated basis under each of the Executive’s options or other equity awards (based on the amount of the parachute payment. payment attributable to each such option or equity award under Code Section 280G) shall be reduced to the extent necessary to eliminate such excess, with such reduction to be made in the same chronological order in which those awards were made. (iii) In the event that there is any disagreement between the receipt of any such right Executive and the Company as to Payment under this Agreement, in conjunction with all other Payments, would cause whether one or more payments or benefits to which the Participant to be considered to have received Executive becomes entitled constitute a parachute payment under this Agreement that would have Code Section 280G or as to the effect determination of decreasing the after-tax amount received present value thereof, such dispute will be resolved as follows: a. In the event the Treasury Regulations under Code Section 280G (or applicable judicial decisions) specifically address the status of any such payment or benefit or the method of valuation therefor, the characterization afforded to such payment or benefit by the Participant as described Regulations (or such decisions) will, together with the applicable valuation methodology, be controlling. b. In the event Treasury Regulations (or applicable judicial decisions) do not address the status of any payment in clause dispute, the matter will be submitted for resolution to the independent registered public accounting firm (the “Independent Auditors”) selected and paid for by the Company. The resolution reached by the Independent Auditors will be final and controlling; provided, however, that if in the judgment of the Independent Auditors, the status of the payment in dispute can be resolved through the obtainment of a private letter ruling from the Internal Revenue Service, a formal and proper request for such ruling will be prepared and submitted by the Independent Auditors, and the determination made by the Internal Revenue Service in the issued ruling will be controlling. All expenses incurred in connection with the preparation and submission of the ruling request shall be shared equally by the Executive and the Company. c. In the event Treasury Regulations (or applicable judicial decisions) do not address the appropriate valuation methodology for any payment in dispute, the present value thereof will, at the Independent Auditor’s election, be determined through an independent third-party appraisal, and the expenses incurred in obtaining such appraisal shall be shared equally by the Executive and the Company. d. All determinations required of the Independent Auditors or third-party appraiser shall be completed on or before the later of (i) the last day of the calendar year in which the transaction triggering the parachute payment is effected or (ii) the fifteenth day of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, third calendar month following such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratioeffective date.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in In the event it shall be determined that (i) any Payment payment or distribution to or for the benefit of the Executive under this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control or other change in control or any person affiliated with the Company or such person (as hereinafter definedthe “Payment” and collectively, the “Payments”) would be subject to the excise tax imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed) or any interest or penalties with respect to such excise tax (collectively, such excise tax, together with any such interest or penalties, the “Excise Tax”) and (ii) the amount of all the Payments that Executive would retain after all federal, state and local income taxes, Executive’s share of employment taxes, and the Excise Tax on the Payments would be less than the amount Executive would retain after all such taxes if the total amount of the Payments were reduced to an amount equal to one dollar less than the minimum amount which would result in the Payments becoming subject to the Excise Tax (as hereinafter definedsuch reduced amount, the “Safe Harbor Amount”), then the right total amount of the Payments that shall be payable to receive any Payment under this Agreement Executive shall be reduced if to an amount equal to the Safe Harbor Amount. The Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A, (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A, but only if:excluding any payment attributable to the acceleration of vesting or payment with respect to any equity award that is exempt from Section 409A, (C) reduction of any other payments or benefits otherwise payable to the Executive on a pro-rata basis or such other manner that complies with Section 409A, but excluding any payment attributable to the acceleration of vesting and payment with respect to any equity award that is exempt from Section 409A, and (D) reduction of any payments attributable to the acceleration of vesting or payment with respect to any equity award that is exempt from Section 409A, in each case beginning with payments that would otherwise be made last in time. (b) All determinations required to be made under this Section 8 shall be made in writing by an accounting firm or consulting group with experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax (the “Tax Advisor”) and such determinations shall be final and binding on the Company and the Executive and detailed supporting calculations shall be provided to the Company and the Executive. The Tax Advisor shall be selected by the Company in its good faith discretion, following consultation with its independent auditors and the Executive. Any fees incurred as a result of work performed by the Tax Advisor pursuant to this Section 8 shall be paid by the Company. (c) For purposes of any analysis required by this Section 8, (i) the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the determination is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on the date of the determination is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such right to such Paymentstate and local taxes, taking (ii) no portion of the Payments shall be taken into account all other Payments to or for Participantwhich, would cause any Payment to in the Participant under this Agreement to be considered opinion of the Tax Advisor, does not constitute a "“parachute payment" ” within the meaning of Section 280G(b)(2) of the Code as then in effect; and (ii) as a result including, without limitation, by reason of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (iiSection 280G(b)(4)(A) of the preceding sentenceCode), then (iii) in calculating the amounts payable under this Agreement Excise Tax, no portion of the Payments shall be reduced so that the Parachute Value of all Paymentstaken into account which, in the aggregateopinion of Tax Advisor, equals constitutes reasonable compensation for services actually rendered, within the Safe Harbor Amount. To meaning of Section 280G(b)(4)(B) of the extent that the payment Code, in excess of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratiobase amount” (as hereinafter defineddefined in Section 280G(b)(3) for each parachute of the Code) allocable to such reasonable compensation, and (iv) the value of any non-cash benefit or any deferred payment and then reducing or benefit included in the parachute payments Payments shall be determined by the Tax Advisor in order beginning accordance with the parachute payment with principles of Sections 280G(d)(3) and (4) of the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioCode.”

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to In the event of the consummation of a change in ownership or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" control (within the meaning of Section 280G(b)(2280G of the Code and the regulations thereunder (“Section 280G”)) (a “280G Change in Control”) of the Company, if all or a portion of the payments and benefits under this Agreement, together with other payments and benefits provided to you by the Company (including, without limitation, any accelerated vesting of stock options, shares of restricted stock or other equity-based awards) (the “Total Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments (or portions thereof) being hereinafter referred to as the “Excess Parachute Payments”), you will be entitled to receive (A) an amount limited so that no portion thereof shall Xxxxxx X. Xxxxxx, MD June 29, 2018 fail to be tax deductible under Section 280G of the Code as then in effect; and(the “Limited Amount”), or (B) if the amount otherwise payable hereunder or otherwise (without regard to clause (A)) reduced by all taxes applicable thereto (including, for the avoidance of doubt, the excise tax levied under Section 4999 of the Code (the “Excise Tax”)) would be greater than the Limited Amount reduced by all taxes applicable thereto, the amount otherwise payable hereunder. (ii) The determination as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereonto whether the Total Payments include Excess Parachute Payments and, if so, the aggregate after-tax amounts received amount of such Excess Parachute Payments, the amount of any Excise Tax with respect thereto, and the amount of any reduction in Total Payments shall be made at the Company’s expense by the Participant from independent public accounting firm most recently serving as the Company’s outside auditors or such other accounting or benefits consulting group or firm as the Company under this Agreement and all Payments would be less than may designate (the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment“Accountants”). In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment payments under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is otherwise are required to be reduced as described in Section 5(d)(i), the adjustment will be made, first, by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with amount of base salary payable pursuant to Section 5(a)(i)(A) or the parachute payment with amount of base salary and bonus payable pursuant to Section 5(c)(i), as applicable; second, if additional reductions are necessary, by reducing the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of or reimbursement for COBRA premiums due to you pursuant to Section 5(a)(i)(B) or Section 5(c)(iii), as applicable; and third, if additional reductions are still necessary, by eliminating the accelerated vesting of time-based equity-based awards or the vesting of performance-based equity-based awards, if any, starting with those awards for which the amount required to be taken into account under Section 280G is the greatest. (iii) In the event that there has been an underpayment or overpayment under this Agreement or otherwise as determined by the Accountants, the amount of such parachute paymentsunderpayment or overpayment shall forthwith be paid to you or refunded to the Company, as the case may be, with amounts having later payment dates being reduced first. For parachute payments with interest at the same Parachute Payment Ratio and applicable federal rate provided for in Section 7872(f)(2) of the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioCode.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event that a Change in Control occurs and it shall be determined that any Payment (as hereinafter defined) would be subject to payment or distribution by the Excise Tax (as hereinafter defined)Company, the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments Bank or its Affiliates to or for Participantthe benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, would cause any Payment to the Participant under this Agreement to be considered a "constitute an “excess parachute payment" ” within the meaning of Section 280G(b)(2Code section 280G (each such payment, a “Parachute Payment”) and would result in the imposition on the Employee of an excise tax under Code section 4999, then, in addition to any other benefits to which the Employee is entitled under this Agreement or otherwise, the Employee shall be paid an amount in cash equal to the sum of the Code as then in effect; and (ii) as a result excise taxes payable by the Employee by reason of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, Parachute Payments plus the aggregate amount necessary to place the Employee in the same after-tax amounts received position (taking into account any and all applicable federal, state and local excise, income or other taxes at the highest possible applicable rates on such Parachute Payments (including, without limitation, any payments under this subparagraph 11.2(a)) as if no excise taxes had been imposed with respect to Parachute Payments (the “Parachute Gross-up”). In no event shall a Parachute Gross-up be payable under this subparagraph 11.2 in the absence of a Change in Control. Any Parachute Gross-up otherwise required by this subparagraph 11.2(a) shall not be made later than the Participant from time of the Company corresponding payment or benefit hereunder giving rise to the underlying Code section 4999 excise tax (to the extent such determination has been made prior to such time), even if the payment of the excise tax is not required under the Code until a later time. Any Parachute Gross-up otherwise required under this subparagraph 11.2(a) shall be made whether or not payments or benefits are payable under this Agreement and all Payments would be less than whether or not the maximum after-tax amount that could be received by Participant without causing any such Payment Employee’s employment with the Bank shall have been terminated. (b) All determinations to be considered a parachute payment. made under this subparagraph 11.2 shall be made by an independent public accounting firm chosen by the Company (the “Accounting Firm”). (c) In the event that the receipt Internal Revenue Service notifies the Employee of an inquiry with respect to the applicability of Code sections 280G or 4999 to any payment by the Bank or its Affiliates, or assessment of tax under Code section 4999 with respect to any payment by the Bank or its Affiliates, the Employee shall provide notice to the Bank of such inquiry or assessment within 10 days, and shall take no action with respect to such inquiry or assessment until the Bank has responded thereto (provided such response is timely with respect to the inquiry or assessment). The Bank shall have the right to Payment under this Agreementappoint an attorney or accountant to represent the Employee with respect to such inquiry or assessment, and the Employee shall fully cooperate with such representative as a condition of receiving a Parachute Gross-up with respect to such inquiry or assessment. (d) All of the fees and expenses of the Accounting Firm in conjunction with all other Paymentsperforming the determinations referred to in subparagraphs (a) and (b) above, would cause or of the Participant representative appointed pursuant to subparagraph (c) above, shall be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received borne solely by the Participant as described in clause Bank. (iie) Notwithstanding the foregoing, if the imposition of a Code section 4999 excise tax could be avoided by a reduction of the preceding sentencepayments due to the Employee (determined before application of subparagraph 11.2(a)) by an amount of 10% or less, then the amounts payable under this Agreement shall be reduced so that the Parachute Value total of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on to an amount one dollar ($1.00) below the time amount that would cause a Code section 4999 excise tax to be imposed, and subparagraph 11.2 (a) shall not apply. (f) Notwithstanding any provision of payment of such parachute paymentsthis subparagraph 11.2 to the contrary, with amounts having later payment dates being reduced first. For parachute payments in accordance with the same requirements of Code section 409A, any Parachute Payment Ratio and the same time of payment, such parachute payments Gross-Up payable hereunder shall be reduced on a pro rata basis paid not later than the end of the calendar year next following the calendar year in which the Employee or Company (but not below zeroas applicable) prior to reducing parachute payments with a lower remits the taxes for which the Parachute Payment RatioGross-Up is being paid.

Parachute Payments. If there is a change in ownership or control of Ascena that causes any payment, distribution or benefit provided by Ascena, any person whose actions result in a change in ownership covered by Section 280G(b)(2) or any person affiliated with Ascena or such person, to or for the benefit of the Executive (a) Anything in any section whether provided, to be provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement other than this Section 11 or otherwise) (a “Payment”) to the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest or penalties incurred by the Executive with respect to such excise tax, the “Excise Tax Tax”) (as hereinafter definedany such Payment, a “Parachute Payment”), then the right to receive any Payment under this Agreement following provisions shall be reduced if but only ifapply: (i) such right to such If the Parachute Payment, taking into account all other Payments to reduced by the sum of (A) the Excise Tax and (B) the total of the federal, state, and local income and employment taxes payable by the Executive on the amount of the Parachute Payment which are in excess of the Threshold Amount (as defined below), are greater than or for Participant, would cause any Payment equal to the Participant Threshold Amount, the Executive shall be entitled to the full benefits payable under this Agreement to be considered a "parachute payment" within the meaning of Section 280G(b)(2) of the Code as then in effect; andAgreement. (ii) as a result of receiving a parachute payment and paying any applicable tax If the Threshold Amount is less than (including Excise TaxA) thereonthe Parachute Payment, but greater than (B) the aggregate after-tax amounts received Parachute Payment reduced by the Participant from sum of (x) the Company under this Agreement Excise Tax and all Payments would be less than (y) the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In total of the event that the receipt of any such right to Payment under this Agreementfederal, in conjunction with all other Paymentsstate, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received and local income and employment taxes payable by the Participant as described in clause (ii) Executive on the amount of the preceding sentenceParachute Payment which are in excess of the Threshold Amount, then the amounts payable under this Agreement Parachute Payment shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower the extent necessary so that the sum of all Parachute Payments shall not exceed the Threshold Amount. In such event, the Parachute Payment Ratioshall be reduced in the following order: (1) cash payments not subject to Code Section 409A; (2) cash payments subject to Code Section 409A; (3) stock options (and other exercisable awards) that have exercise prices higher than the then fair market value price of the stock (based on the latest vesting tranches), (4) restricted stock and restricted stock units based on the last ones scheduled to be distributed, (5) other stock options based on the latest vesting tranches, and (6) other non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order.

Parachute Payments. If Independent Tax Counsel (aas herein defined) Anything in any section of this Agreement other than this Section 11 determines that the aggregate payments and benefits provided or to be provided to the contrary notwithstandingEmployee pursuant to this Agreement, and any other payments and benefits provided or to be provided to the Employee from the Company or any of its Affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the event it shall be determined Internal Revenue Code of 1986, as amended (the “Code”) (or any successor provision thereto) (“Parachute Payments”) that any Payment (as hereinafter defined) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax (as hereinafter definedTax”), then, except as otherwise provided in the right to receive any Payment under this Agreement next sentence, such Parachute Payments shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant extent necessary so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Employee would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 7(a), then no such reduction shall be made. The determination of the Independent Tax Counsel under this Agreement Section 7 shall be final and binding on all parties hereto. The determination of which payments or benefits to reduce in order to avoid the Excise Tax shall be determined in the sole discretion of the Employee; provided, however, that unless the Employee gives written notice to the Company specifying the order to effectuate the limitations described above within ten (10) days of the Independent Tax Counsel’s determination to make such reduction, the Company shall first reduce those payments or benefits that will cause a dollar-for-dollar reduction in total Parachute Payments, and then by reducing other Parachute Payments, to the extent possible, in reverse order beginning with payments or benefits that are to be considered a "parachute payment" within paid the meaning of Section 280G(b)(2) of farthest in time from the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, date the aggregate after-tax amounts received reduction is to be made. Any notice given by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment Employee pursuant to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then unless prohibited by law, shall take precedence over the amounts payable under provisions of any other plan, arrangement or agreement governing the Employee’s rights and entitlement to any benefits or compensation. For purposes of this Agreement Section 7, “Independent Tax Counsel” shall mean an attorney, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of Employee compensation tax law, who shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from selected by the Company is required and shall be acceptable to the Employee (the Employee’s acceptance not to be reduced by this Section 11unreasonably withheld), such reduction and whose fees and disbursements shall be implemented paid by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioCompany.

Parachute Payments. 8.1. If it is determined (aas hereafter provided) Anything in that any section payment, compensation or other benefit provided by the Company (or any successor entity) to or for the benefit of Executive under this Agreement or any other than this Section 11 to plan, agreement or arrangement (the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined“Payments”) would be subject to the Excise Tax excise tax imposed by Code Section 4999 (as hereinafter defineda “Parachute Tax”), or any tax, interest, penalty or other expense incurred by Executive pursuant to Code Section 409A (a “Deferred Compensation Tax”) to which Executive would not have been subject but for the right Company’s failure to pay any severance amounts pursuant to the provisions of Section 6, 7 and 9 of this Agreement or other failure to make such payments in a manner that avoids such payments qualifying as deferred compensation under Section 409A of the Code, then Executive shall be entitled to receive an additional payment or payments (a “Gross-Up Payment”) in an amount such that, after payment by Executive of all taxes (including any Parachute Tax or Deferred Compensation Tax) imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Parachute Tax and/or Deferred Compensation Tax imposed upon the Payment. 8.2. Subject to the provisions of Section 8.1 hereof, all determinations required to be made under this Agreement Section 8, including whether a Parachute Tax or Deferred Compensation Tax is payable by Executive with regard to a Payment and the amount of such Parachute Tax or Deferred Compensation Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be reduced if but only if: made by the nationally recognized firm of certified public accountants (ithe “Accounting Firm”) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment used by the Company (prior to the Participant under Change in Control, if applicable), or, if such Accounting Firm declines to serve, the Accounting Firm shall be a nationally recognized firm of certified public accountants selected by the Company. For purposes of making the calculations required by this Agreement to Section, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G, 4999 and 409A of the Code, provided that the Accounting Firm’s determinations must be considered a "parachute payment" made with substantial authority (within the meaning of Section 280G(b)(2) 6662 of the Code Code). The Accounting Firm shall be directed by the Company or Executive to submit its preliminary determination and detailed supporting calculations to both the Company and Executive within 15 calendar days after the determination date, if applicable, and any other such time or times as then may be requested by the Company or Executive. If the Accounting Firm determines that any Parachute Tax or Deferred Compensation Tax is payable by Executive with regard to a Payment, the Company shall pay the required Gross-Up Payment to, or for the benefit of, Executive within five business days after receipt of such determination and calculations (and in effectany event, such Gross-Up Payment shall be paid to Executive by the end of the calendar year next following the calendar year in which Executive remits the Parachute Tax or Deferred Compensation Tax to the appropriate tax authorities). If the Accounting Firm determines that no Parachute Tax or Deferred Compensation Tax is payable by Executive with regard to a Payment, it shall, at the same time as it makes such determination, furnish Executive with an opinion that he has substantial authority not to report any Parachute Tax or Deferred Compensation Tax on his federal tax return. Any good faith determination by the Accounting Firm as to whether a Gross-Up Payment is to be made with regard to a Payment and the amount of the Gross-Up Payment shall be binding upon the Company and Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; and (ii) provided, however, that no such determination shall eliminate or reduce the Company’s obligation to provide any Gross-Up Payments that shall be due as a result of receiving such contrary determination. As a parachute payment and paying result of the uncertainty in the application of Code Section 4999 or Code Section 409A at the time of any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received determination by the Participant from Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Company under this Agreement and all Payments would be less than should have been made (an “Underpayment”), consistent with the maximum after-tax amount that could be received by Participant without causing any such Payment calculations required to be considered a parachute paymentmade hereunder. In the event that the Company exhausts or fails to pursue its remedies pursuant to Section 8.6 hereof and Executive thereafter is required to make a payment of any Parachute Tax or Deferred Compensation Tax, Executive shall direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Company and Executive as promptly as possible. Any such Underpayment shall be promptly paid by the Company to, or for the benefit of, Executive within five business days after receipt of such determination and calculations (and in any event, such right Underpayment shall be paid to Executive by the end of the calendar year next following the calendar year in which Executive remits the related Parachute Tax or Deferred Compensation Tax to the appropriate tax authorities). 8.3. The Company and Executive shall each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by Section 8.2 hereof. 8.4. The federal tax returns filed by Executive (or any filing made by a consolidated tax group which includes the Company) shall be prepared and filed on a basis consistent with the determination of the Accounting Firm with respect to the Parachute Tax or Deferred Compensation Tax payable by Executive. Executive shall make proper payment of the amount of any Parachute Tax or Deferred Compensation Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of his federal income tax return as filed with the Internal Revenue Service, and such other documents reasonably requested by the Company, evidencing such payment. If prior to the filing of Executive’s federal income tax return, the Accounting Firm determines in good faith that the amount of the Gross-Up Payment under this Agreementshould be reduced, Executive shall within five business days pay to the Company the amount of such reduction. 8.5. The fees and expenses of the Accounting Firm for its services in conjunction connection with all other Paymentsthe determinations and calculations contemplated by Sections 8.2 and 8.4 hereof shall be borne by the Company. If such fees and expenses are initially advanced by Executive, would cause the Participant to be considered to have Company shall reimburse Executive the full amount of such fees and expenses within five business days after receipt from Executive of a statement therefor and reasonable evidence of his payment thereof. 8.6. In the event that the Internal Revenue Service claims that any payment or benefit received a parachute payment under this Agreement constitutes an “excess parachute payment” within the meaning of Code Section 280G(b)(1), Executive shall notify the Company in writing of such claim. Such notification shall be given as soon as practicable but not later than 10 business days after Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30 day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that would have any payment of taxes with respect to such claim is due). If the effect Company notifies Executive in writing prior to the expiration of decreasing such period that it desires to contest such claim, Executive shall (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company and reasonably satisfactory to Executive; (iii) cooperate with the Company in good faith in order to effectively contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including, but not limited to, additional interest and penalties and related legal, consulting or other similar fees) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax amount received by basis, for and against for any Parachute Tax or income tax or other tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. 8.7. The Company shall direct Executive with regard to all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the Participant as described taxing authority in clause (ii) respect of such claim and may, at its sole option, either direct Executive to pay the preceding sentence, then tax claimed and xxx for a refund or contest the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Paymentsclaim in any permissible manner and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the aggregateCompany shall determine; provided, equals however, that if the Safe Harbor Amount. To Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive on an interest-free basis (to the extent permitted by applicable law), and shall indemnify and hold Executive harmless, on an after tax basis, from any Parachute Tax or Deferred Compensation Tax (or other tax including interest and penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided, further, that the payment of any compensation or benefits to if Executive from the Company is required to be reduced by extend the statue of limitations to enable the Company to contest such claim, Executive may limit this Section 11, extension solely to such reduction contested amount. The Company’s right to direct Executive with regard to the contest shall be implemented limited to issues with respect to whether and the extent to which a payment or benefit is an “excess parachute payment” pursuant to Code Section 280G(b)(1), the imposition of the Parachute Tax under Code Section 4999 and the imposition of the Deferred Compensation Tax under Code Section 409A, and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing Internal Revenue Service or any other taxing authority. In addition, the parachute payments Company shall not direct Executive to take a position or agree to any final resolution if such position or resolution could reasonably be expected to adversely affect Executive unrelated to matters covered hereto, unless Executive consents in order beginning writing to such position or agreement. 8.8. If, after the receipt by Executive of an amount advanced by the Company in connection with the parachute payment contest of the Parachute Tax or Deferred Compensation Tax claim, Executive receives any refund with respect to such claim, Executive shall promptly pay to the highest Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto); provided, however, if the amount of that refund exceeds the amount advanced by the Company Executive may retain such excess. If, after the receipt by Executive of an amount advanced by the Company in connection with a Parachute Payment Ratio. For parachute payments Tax or Deferred Compensation Tax claim, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the same Parachute Payment Ratio, Company does not notify Executive in writing of its intent to direct Executive to contest the denial of such parachute payments refund prior to the expiration of 30 days after such determination such advance shall be reduced based on deemed to be in consideration for services rendered after the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioTermination Date.

Parachute Payments. (a) Anything in If any section of amount, entitlement, or benefit paid or payable to the Executive or provided for his benefit under this Agreement and under any other than this Section 11 agreement, plan or program of the Company or any of its affiliates (such payments, entitlements and benefits referred to as a “Payment”) is subject to the contrary notwithstandingexcise tax imposed under Code section 4999, or any similar federal or state law (an “Excise Tax”), then notwithstanding anything contained in this Agreement to the event it shall be determined contrary, to the extent that any Payment (as hereinafter defined) or all Payments would be subject to the imposition of an Excise Tax (as hereinafter defined)Tax, the right to receive any Payment under this Agreement Payments shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" within the meaning of Section 280G(b)(2) of the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) if and to the extent that such reduction would result in the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the imposition of the Excise Tax), than if the Executive received all of the Payments (such reduced amount is hereinafter referred to as the “Limited Payment Amount”). Unless the Executive shall have given prior written notice specifying a different order to the Company to effectuate the limitations described in the preceding sentence, the Company shall reduce or eliminate the Payments, by first reducing parachute or eliminating those payments or benefits which are not payable in cash and then by reducing or eliminating cash payments, 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 notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement, including, but not limited to, the other provisions of this Agreement, governing the Executive’s rights and entitlements to any compensation, entitlement or benefit. (b) All calculations under this Section 10 shall be made by a lower Parachute nationally recognized accounting firm designated by the Company and reasonably acceptable to the Executive (other than the accounting firm that is regularly engaged by any party who has effectuated a Change in Control) (the “Accounting Firm”). The Company shall pay all fees and expenses of such Accounting Firm. The Accounting Firm shall provide its calculations, together with detailed supporting documentation, both to the Company and the Executive within 45 days after the Change in Control or the Date of Termination, whichever is later (or such earlier time as is requested by the Company) and, with respect to the Limited Payment RatioAmount, shall deliver its opinion to the Executive that he is not required to report any Excise Tax on his federal income tax return with respect to the Limited Payment Amount (collectively, the “Determination”). Within 5 days of the Executive’s receipt of the Determination, the Executive shall have the right to dispute the Determination (the “Dispute”). The existence of the Dispute shall not in any way affect the right of the Executive to receive the Payments in accordance with the Determination. If there is no Dispute, the Determination by the Accounting Firm shall be final binding and conclusive upon the Company and the Executive (except as provided in subsection (c) below). (c) If, after the Payments have been made to the Executive, it is established that the Payments made to, or provided for the benefit of, the Executive exceed the limitations provided in subsection (a) above (an “Excess Payment”) or are less than such limitations (an “Underpayment”), as the case may be, then the provisions of this subsection (c) shall apply. If it is established pursuant to a final determination of a court or an Internal Revenue Service (the “IRS”) proceeding which has been finally and conclusively resolved, that an Excess Payment has been made, the Executive shall repay the Excess Payment to the Company on demand. In the event that it is determined by (i) the Accounting Firm, the Company (which shall include the position taken by the Company, or together with 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 the satisfaction of the Executive of the Dispute, that an Underpayment has occurred, the Company shall pay an amount equal to the Underpayment to the Executive within 10 days of such determination or resolution together with interest on such amount at the applicable federal short-term rate, as defined under Code section 1274(d) and as in effect on the first date that such amount should have been paid to the Executive under this Agreement, from such date until the date that such Underpayment is made to the Executive, provided, however that the foregoing payment shall be made no later than the end of the year following the year in which the Executive remits the applicable taxes.

Parachute Payments. (a) Anything in If it is determined (as hereafter provided) that by reason of any section payment or Option vesting occurring pursuant to the terms of this Agreement (or otherwise under any other than this Section 11 to agreement, plan or program) upon a Change in Control (collectively a "Payment") the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) Executive would be subject to the Excise Tax excise tax imposed by Code Section 4999 (as hereinafter definedthe "Parachute Tax"), then the right Executive shall be entitled to receive an additional payment or payments (a "Gross-Up Payment") in an amount such that, after payment by the Executive of all taxes (including any Parachute Tax) imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Parachute Tax imposed upon the Payment. (b) Subject to the provisions of Section 8(a) hereof, all determinations required to be made under this Section 8, including whether a Parachute Tax is payable by the Executive and the amount of such Parachute Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by the nationally recognized firm of certified public accountants (the "Accounting Firm") used by the Company prior to the Change in Control (or, if such Accounting Firm declines to serve, the Accounting Firm shall be a nationally recognized firm of certified public accountants selected by the Executive). The Accounting Firm shall be directed by the Company or the Executive to submit its preliminary determination and detailed supporting calculations to both the Company and the Executive within 15 calendar days after the determination date, if applicable, and any other such time or times as may be requested by the Company or the Executive. If the Accounting Firm determines that any Parachute Tax is payable by the Executive, the Company shall pay the required Gross-Up Payment to, or for the benefit of, the Executive within five business days after receipt of such determination and calculations. If the Accounting Firm determines that no Parachute Tax is payable by the Executive, it shall, at the same time as it makes such determination, furnish the Executive with an opinion that he has substantial authority not to report any Parachute Tax on his federal tax return. Any good faith determination by the Accounting Firm as to the amount of the Gross-Up Payment shall be binding upon the Company and the Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce the Company's obligation to provide any Gross-Up Payments that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Code Section 4999 at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Company should have been made (an "Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts or fails to pursue its remedies pursuant to Section 8(f) hereof and the Executive thereafter is required to make a payment of any Parachute Tax, the Executive shall direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Company and the Executive as promptly as possible. Any such Underpayment shall be promptly paid by the Company to, or for the benefit of, the Executive within five business days after receipt of such determination and calculations. (c) The Company and the Executive shall each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or the Executive, as the case may 8 9 be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by Section 8(b) hereof. (d) The federal tax returns filed by the Executive (or any filing made by a consolidated tax group which includes the Company) shall be prepared and filed on a basis consistent with the determination of the Accounting Firm with respect to the Parachute Tax payable by the Executive. The Executive shall make proper payment of the amount of any Parachute Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of his federal income tax return as filed with the Internal Revenue Service, and such other documents reasonably requested by the Company, evidencing such payment. If prior to the filing of the Executive's federal income tax return, the Accounting Firm determines in good faith that the amount of the Gross-Up Payment should be reduced, the Executive shall within five business days pay to the Company the amount of such reduction. (e) The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by Sections 8(b) and (d) hereof shall be borne by the Company. If such fees and expenses are initially advanced by the Executive, the Company shall reimburse the Executive the full amount of such fees and expenses within five business days after receipt from the Executive of a statement therefor and reasonable evidence of his payment thereof. (f) In the event that the Internal Revenue Service claims that any payment or benefit received under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a constitutes an "excess parachute payment" within the meaning of Code Section 280G(b)(2) 280G(b)(1), the Executive shall notify the Company in writing of such claim. Such notification shall be given as soon as practicable but not later than 10 business days after the Executive is informed in writing of such claim and shall apprise the Company of the Code as then nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30 day period following the date on which the Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in effectwriting prior to the expiration of such period that it desires to contest such claim, the Executive shall (i) give the Company any information reasonably requested by the Company relating to such claim; and (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company and reasonably satisfactory to the Executive; (iii) cooperate with the Company in good faith in order to effectively contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including, but not limited to, additional interest and penalties and related legal, consulting or other similar fees) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for and against for any Parachute Tax or income tax or other tax (including interest and penalties with respect thereto) imposed as a result of receiving such representation and payment of costs and expenses. (g) The Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue xxx a parachute payment refund or contest the claim in any permissible manner and paying the Executive agrees to prosecute such contest to a determination before any applicable tax (including Excise Tax) thereonadministrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue xxx a refund, the aggregate afterCompany shall advance the amount of such payment to the Executive on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after tax amounts received by basis, from any Parachute Tax (or other tax including interest and penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided, further, that if the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by extend the statue of limitations to enable the Company to contest such claim, the Executive may limit this Section 11, extension solely to such reduction contested amount. The Company's control of the contest shall be implemented limited to issues with respect to which a corporate deduction would be disallowed pursuant to Code 9 10 Section 280G and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by determining the “Parachute Payment Ratio” Internal Revenue Service or any other taxing authority. In addition, no position may be taken nor any final resolution be agreed to by the Company without the Executive's consent if such position or resolution could reasonably be expected to adversely affect the Executive unrelated to matters covered hereto. (as hereinafter definedh) for each parachute payment and then reducing If, after the parachute payments receipt by Executive of an amount advanced by the Company in order beginning connection with the parachute payment contest of the Parachute Tax claim, the Executive receives any refund with respect to such claim, the highest Executive shall promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto); provided, however, if the amount of that refund exceeds the amount advanced by the Company the Executive may retain such excess. If, after the receipt by the Executive of an amount advanced by the Company in connection with a Parachute Payment Ratio. For parachute payments Tax claim, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the same Parachute Payment Ratio, Company does not notify the Executive in writing of its intent to contest the denial of such parachute payments refund prior to the expiration of 30 days after such determination such advance shall be reduced based on deemed to be in consideration for services rendered after the time Date of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioTermination.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in In the event it shall be determined that (i) any Payment payment or distribution to or for the benefit of the Executive under this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control or other change in control or any person affiliated with the Company or such person (as hereinafter definedthe “Payment” and collectively, the “Payments”) would be subject to the excise tax imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed) or any interest or penalties with respect to such excise tax (collectively, such excise tax, together with any such interest or penalties, the “Excise Tax”) and (ii) the amount of all the Payments that Executive would retain after all federal, state and local income taxes, Executive’s share of employment taxes, and the Excise Tax on the Payments would be less than the amount Executive would retain after all such taxes if the total amount of the Payments were reduced to an amount equal to one dollar less than the minimum amount which would result in the Payments becoming subject to the Excise Tax (as hereinafter definedsuch reduced amount, the “Safe Harbor Amount”), then the right total amount of the Payments that shall be payable to receive any Payment under this Agreement Executive shall be reduced if to an amount equal to the Safe Harbor Amount. The Payments shall be reduced by the Company in its reasonable discretion in the following order: (A) reduction of any cash severance payments otherwise payable to the Executive that are exempt from Section 409A, (B) reduction of any other cash payments or benefits otherwise payable to the Executive that are exempt from Section 409A, but only if:excluding any payment attributable to the acceleration of vesting or payment with respect to any equity award that is exempt from Section 409A, (C) reduction of any other payments or benefits otherwise payable to the Executive on a pro-rata basis or such other manner that complies with Section 409A, but excluding any payment attributable to the acceleration of vesting and payment with respect to any equity award that is exempt from Section 409A, and (D) reduction of any payments attributable to the acceleration of vesting or payment with respect to any equity award that is exempt from Section 409A, in each case beginning with payments that would otherwise be made last in time. (b) All determinations required to be made under this Section 8 shall be made in writing by an accounting firm or consulting group with experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax (the “Tax Advisor”) and such determinations shall be final and binding on the Company and the Executive and detailed supporting calculations shall be provided to the Company and the Executive. The Tax Advisor shall be selected by the Company in its good faith discretion, following consultation with its independent auditors and the Executive. Any fees incurred as a result of work performed by the Tax Advisor pursuant to this Section 8 shall be paid by the Company. (c) For purposes of any analysis required by this Section 8, (i) the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the determination is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on the date of the determination is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such right to such Paymentstate and local taxes, taking (ii) no portion of the Payments shall be taken into account all other Payments to or for Participantwhich, would cause any Payment to in the Participant under this Agreement to be considered opinion of the Tax Advisor, does not constitute a "“parachute payment" ” within the meaning of Section 280G(b)(2) of the Code as then in effect; and (ii) as a result including, without limitation, by reason of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (iiSection 280G(b)(4)(A) of the preceding sentenceCode), then (iii) in calculating the amounts payable under this Agreement Excise Tax, no portion of the Payments shall be reduced so that the Parachute Value of all Paymentstaken into account which, in the aggregateopinion of Tax Advisor, equals constitutes reasonable compensation for services actually rendered, within the Safe Harbor Amount. To meaning of Section 280G(b)(4)(B) of the extent that the payment Code, in excess of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratiobase amount” (as hereinafter defineddefined in Section 280G(b)(3) for each parachute of the Code) allocable to such reasonable compensation, and (iv) the value of any non-cash benefit or any deferred payment and then reducing or benefit included in the parachute payments Payments shall be determined by the Tax Advisor in order beginning accordance with the parachute payment with principles of Sections 280G(d)(3) and (4) of the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioCode.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to In the event of the consummation of a change in ownership or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" control within the meaning of Section 280G(b)(2280G (a “280G Change in Control”) of the Company following the time that the Company has stock readily tradeable on an established securities market (within the meaning of Section 280G and the regulations thereunder), if all or a portion of the payments and benefits under this Agreement, together with any other payments and benefits provided to you by the Company or its Affiliates (including, without limitation, any accelerated vesting of stock options and other equity awards) (the “Total Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments (or portions thereof) being hereinafter referred to as the “Excess Parachute Payments”), you will be entitled to receive (A) an amount limited so that no portion thereof shall fail to be tax deductible under Section 280G (the “Limited Amount”), or (B) if the amount otherwise payable hereunder or otherwise (without regard to clause (A)) reduced by all taxes applicable thereto (including, for the avoidance of doubt, the excise tax levied under Section 4999 of the Code as then in effect; and(the “Excise Tax”)) would be greater than the Limited Amount reduced by all taxes applicable thereto, the amount otherwise payable hereunder or otherwise. (ii) The determination as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereonto whether the Total Payments include Excess Parachute Payments and, if so, the aggregate after-tax amounts received amount of such Excess Parachute Payments, the amount of any Excise Tax with respect thereto, and the amount of any reduction in Total Payments shall be made at the Company’s expense by the Participant from independent public accounting firm most recently serving as the Company’s outside auditors or such other accounting or benefits consulting group or firm as the Company under this Agreement and all Payments would be less than may designate (the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment“Accountants”). In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment payments under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is otherwise are required to be reduced as described in Section 5(e)(i), the adjustment will be made, first, by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with amount of Base Salary payable pursuant to Section 5(a)(i) or Section 5(b)(i), as applicable; second, if additional reductions are necessary, by reducing the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of the amounts due to you pursuant to Section 5(a)(ii) or Section 5(b)(ii), as applicable; and third, if additional reductions are still necessary, by eliminating the accelerated vesting of stock option awards and other equity awards, if any, starting with those awards for which the amount required to be taken into account under Section 280G is the greatest. (iii) In the event that there has been an underpayment or overpayment under this Agreement or otherwise as determined by the Accountants, the amount of such parachute paymentsunderpayment or overpayment shall forthwith be paid to you or refunded to the Company, as the case may be, with amounts having later payment dates being reduced first. For parachute payments with interest at the same Parachute Payment Ratio and applicable federal rate provided for in Section 7872(f)(2) of the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioCode.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 Notwithstanding anything to the contrary notwithstandingherein, if the Company enters into a Transaction Agreement (as defined in the event it Employment Agreement), an independent registered public accounting firm retained by the Company prior to the occurrence of the Related Change in Control (the “Accounting Firm”) shall be determined determine whether all or any portion of the compensatory payments that the Participant receives from the Company (including any Payment (as hereinafter definedcompensation received in respect of the RSUs) will constitute “excess parachute payments” within the meaning of Section 280G of the Code such that the Participant would be subject to the excise tax imposed by Section 4999 of the Code or any other similar state excise tax or any interest or penalty is incurred by the Participant with respect to such excise tax (the “Excise Tax (as hereinafter definedTax”). If the Participant would be subject to an Excise Tax, the right to Accounting Firm shall also determine whether the Participant would receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Paymenta greater net after tax benefit, taking into account all other Payments otherwise applicable federal, state and local income, employment and excise taxes that would otherwise be imposed on or with respect to or for Participantsuch compensatory payments, would cause any Payment to if the Participant under this Agreement amount of such compensatory payments were to be considered a "parachute payment" within reduced to three times the meaning of Participant’s “base amount”, as defined in Section 280G(b)(2280G(b)(3) of the Code as then in effect; and Code, less one dollar (ii) as the “Safe Harbor Limit”). If the Participant would receive a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate greater net after-tax amounts received by benefit if the Participant from compensatory payments were reduced to the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentenceSafe Harbor Limit, then the amounts payable under this Agreement number of PSUs that could become vested in connection with the Related Change in Control shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior as and to reducing parachute the extent the Accounting Firm determines to be necessary so that the compensatory payments shall not exceed the Safe Harbor Limit. (b) In connection with making determinations under this Section 7, the Accounting Firm shall take into account, to the extent permitted under Section 280G of the Code, the value of any reasonable compensation for services rendered by the Participant before, and to be rendered after the date of the Related Change in Control, including the value of any noncompetition provisions that may apply to the Participant following such date. The Company shall cooperate with the Accounting Firm in any making such determinations. All fees and expenses of the Accounting Firm in implementing the provisions of this Section 7, including those expenses incurred to value any restrictive covenants, shall be borne by the Company. (c) If it shall be subsequently determined that the number of PSUs (or the value thereof) that the Accounting Firm determined had to be reduced in accordance with the provisions of Section 7(a) is less than the number of PSUs (or the value thereof) actually required to avoid the application of the Excise Tax on the Participant’s compensatory payments to the Participant, then the value attributable to the appropriate number of PSUs in excess of the number of PSUs determined to be reduced by the Accounting Firm pursuant to this Section 7 shall be deemed for all purposes to be a lower Parachute Payment Ratioloan to the Participant made on the date of receipt of such vested PSUs, which the Participant shall have an obligation to repay to the Company, together with interest on such amount at the applicable Federal rate (as defined in Section 1274(d) of the Code) from the date of the Participant’s receipt of payment for such vested PSUs to the date of repayment by the Participant. (d) Except as otherwise expressly provided in Section 7(c), all determinations made by the Accounting Firm under this Section 7 shall be binding upon the Company and the Participant.

Parachute Payments. (a) Anything in If any section of amount, entitlement, or benefit paid or payable to the Executive or provided for his benefit under this Agreement and under any other than this Section 11 agreement, plan or program of the Company or any of its affiliates (such payments, entitlements and benefits referred to as a “Payment”) is subject to the contrary notwithstandingexcise tax imposed under Code section 4999, or any similar federal or state law (an “Excise Tax”), then notwithstanding anything contained in this Agreement to the event it shall be determined contrary, to the extent that any Payment (as hereinafter defined) or all Payments would be subject to the imposition of an Excise Tax (as hereinafter defined)Tax, the right to receive any Payment under this Agreement Payments shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" within the meaning of Section 280G(b)(2) of the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) if and to the extent that such reduction would result in the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the imposition of the Excise Tax), than if the Executive received all of the Payments (such reduced amount is hereinafter referred to as the “Limited Payment Amount”). Unless the Executive shall have given prior written notice specifying a different order to the Company to effectuate the limitations described in the preceding sentence, the Company shall reduce or eliminate the Payments, by first reducing parachute or eliminating those payments or benefits which are not payable in cash and then by reducing or eliminating cash payments, 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 notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement, including, but not limited to, the other provisions of this Agreement, governing the Executive’s rights and entitlements to any compensation, entitlement or benefit. (b) All calculations under this Section 10 shall be made by a lower Parachute nationally recognized accounting firm designated by the Company and reasonably acceptable to the Executive (other than the accounting firm that is regularly engaged by any party who has effectuated a Change in Control) (the “Accounting Firm”). The Company shall pay all fees and expenses of such Accounting Firm. The Accounting Firm shall provide its calculations, together with detailed supporting documentation, both to the Company and the Executive within 45 days after the Change in Control or the Date of Termination, whichever is later (or such earlier time as is requested by the Company) and, with respect to the Limited Payment RatioAmount, shall deliver its opinion to the Executive that he is not required to report any Excise Tax on his federal income tax return with respect to the Limited Payment Amount (collectively, the “Determination”). Within 5 days of the Executive’s receipt of the Determination, the Executive shall have the right to dispute the Determination (the “Dispute”). The existence of the Dispute shall not in any way affect the right of the Executive to receive the Payments in accordance with the Determination. If there is no Dispute, the Determination by the Accounting Firm shall be final binding and conclusive upon the Company and the Executive (except as provided in subsection (c) below). (c) If, after the Payments have been made to the Executive, it is established that the Payments made to, or provided for the benefit of, the Executive exceed the limitations provided in subsection (a) above (an “Excess Payment”) or are less than such limitations (an “Underpayment”), as the case may be, then the provisions of this subsection (c) shall apply. If it is established pursuant to a final determination of a court or an Internal Revenue Service (the “IRS”) proceeding which has been finally and conclusively resolved, that an Excess Payment has been made, the Executive shall repay the Excess Payment to the Company on demand. In the event that it is determined by (i) the Accounting Firm, the Company (which shall include the position taken by the Company, or together with 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 the satisfaction of the Executive of the Dispute, that an Underpayment has occurred, the Company shall pay an amount equal to the Underpayment to the Executive within 10 days of such determination or resolution together with interest on such amount at the applicable federal short-term rate, as defined under Code Section 1274(d) and as in effect on the first date that such amount should have been paid to the Executive under this Agreement, from such date until the date that such Underpayment is made to the Executive, provided, however that the foregoing payment shall be made no later than the end of the year following the year in which the Executive remits the applicable taxes.

Parachute Payments. If there is a change in ownership or control of the Company that causes any payment, distribution or benefit provided by the Company (aor any person whose actions result in a change in ownership covered by Section 280G(b)(2)), to or for the benefit of the Executive (a “Payment”) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest or penalties incurred by the Executive with respect to such excise tax, the “Excise Tax”) (any such Payment, a “Parachute Payment”), then the following provisions shall apply: i. If the Parachute Payment, reduced by the sum of (A) the Excise Tax and (B) the total of the federal, state, and local income and employment taxes payable by the Executive on the amount of the Parachute Payment which are in excess of the Threshold Amount (as hereinafter defineddefined below) (such sum, the “Aggregate Taxes”), are greater than or equal to the right Threshold Amount, the Executive shall be entitled to receive any Payment the full benefits payable under this Agreement Agreement. ii. If the Threshold Amount is less than (A) the Parachute Payment, but greater than (B) the Parachute Payment reduced by the sum of the Aggregate Taxes, then the Parachute Payment shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" within the meaning of Section 280G(b)(2) of the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower the extent necessary so that the sum of all Parachute Payments shall not exceed the Threshold Amount. In such event, the Parachute Payment Ratioshall be reduced in the following order: (1) cash payments not subject to Code Section 409A; (2) cash payments subject to Code Section 409A; (3) stock options (and other exercisable awards) that have exercise prices higher than the then fair market value price of the stock (based on the latest vesting tranches), (4) restricted stock and restricted stock units based on the last ones scheduled to be distributed, (5) other stock options based on the latest vesting tranches, and (6) other non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. iii. For the purposes of this section, “Threshold Amount” shall mean three times the Executive’s “base amount” within the meaning of Section 280G(b)(3) of the Code and the regulations promulgated thereunder less one dollar ($1.00). Please acknowledge your agreement with the terms of this letter agreement by signing and dating the enclosed copy and returning it to me. Sincerely, IHS MARKIT By: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx Title: Executive Vice President, Chief Administrative Officer and General Counsel Accepted and Agreed: /s/ Xxxxx Xxxxxx (Signature) Jan. 17, 2020 (Date) Name: Xxxxx Xxxxxx Title: Executive Vice President, Head of Global Energy and Natural Resources Reporting To.......................... Chief Executive Officer of the Company Principal Work Location........ Rockville, MD Board or Committee Memberships.......................... None. Annual Base Salary................ $506,556 less applicable taxes and required withholding.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 10 to the contrary notwithstandingnot- withstanding, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" within the meaning of Code Section 280G(b)(2) of the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) Tax thereon), the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 1110, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratio.by

Parachute Payments. i) If before the end of the Term the Company terminates your employment without Cause (a) Anything in any section of this Agreement other than this Section 11 to as a result of your death or disability) or you resign for Good Reason, and such termination occurs within the contrary notwithstanding12 full calendar month period following the effective date of a Change in Control, then, in the event it shall be determined that any Payment payment or benefit paid or to be paid to you by the Company (as hereinafter definedthe "Payments") would be subject to the excise tax (the "Excise Tax Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (as hereinafter definedthe "Code"), the right Company shall pay to receive any Payment under this Agreement you an additional amount (the "Gross-Up Payment") such that the net amount of Payments retained by you shall be reduced equal to the amount you would have retained if but only if:none of such Payments were subject to the Excise Tax. In particular, the Company will timely pay to you an amount equal to the Excise Tax on the Payments, any interest, penalties or additions to tax payable by you by reason of your filing income tax returns and making tax payments in a manner consistent with an opinion of tax counsel selected by the Company and reasonably acceptable to you ("Tax Counsel"), and any federal, state and local income tax and Excise Tax upon the payments by the Company to you provided for by this Section 8(g). Notwithstanding the foregoing provisions of this Section 8(g), in the event the amount of Payments subject to the Excise Tax exceeds the product ("Parachute Payment Limit") of 2.99 and your applicable "base amount" (as such term is defined for purposes of Section 4999 of the Code) by less than ten percent (10%) of the Salary, you shall be treated as having waived such rights with respect to Payments designated by you to the extent required such that the aggregate amount of Payments subject to the Excise Tax is less than the Parachute Payment Limit. (iii) The Company shall obtain an opinion of Tax Counsel that initially determines whether any of the Payments will be subject to the Excise Tax and the amounts of such right Excise Tax, which shall serve as the basis for reporting Excise Taxes and federal, state and local income taxes on Payments hereunder. For purposes of determining the amount of the Gross-Up Payment, you shall be deemed to pay federal income tax at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of your residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such Paymentstate and local taxes, taking into account all other any limitations applicable to individuals subject to federal income tax at the highest marginal rates. iii) The Gross-Up Payments provided for in this Section 8(g) shall be made as to each Payment upon the earlier of (A) the payment you of any such Payment or for Participant(B) the imposition upon you or payment by you of any Excise Tax or any federal, would cause state or local income tax on any Payment payment pursuant to this Section 8(g). iv) If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding or the Participant under this Agreement to be considered a "parachute payment" within opinion of Tax Counsel that the meaning of Section 280G(b)(2) of the Code as then in effect; and (ii) as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereon, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be Tax is less than the maximum afteramount taken into account under Section 8(g) hereof, you shall repay to the Company within five days of your receipt of notice of such final determination or opinion the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax amount that could be imposed on the Gross-Up Payment being repaid by you if such repayment results in a reduction in Excise Tax or a federal, state and local income tax deduction) plus any interest received by Participant without causing any you on the amount of such Payment repayment. If it is established pursuant to be considered a parachute payment. In final determination of a court or an Internal Revenue Service proceeding or the event opinion of Tax Counsel that the receipt Excise Tax exceeds the amount taken into account hereunder (including by reason of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause payment the Participant to existence or amount of which cannot be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on determined at the time of payment the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with excess within five days of the same Parachute Payment Ratio and the same time Company's receipt of payment, notice of such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment Ratiofinal determination or opinion.

Parachute Payments. (a) Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) would be subject to the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to In the event of the consummation of a change in ownership or for Participant, would cause any Payment to the Participant under this Agreement to be considered a "parachute payment" control (within the meaning of Section 280G(b)(2280G of the Code and the regulations thereunder (“Section 280G”)) (a “280G Change in Control”) of the Company, if all or a portion of the payments and benefits under this Agreement, together with other payments and benefits provided to you by the Company (including, without limitation, any accelerated vesting of stock options, shares of restricted stock or other equity-based awards) (the “Total Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments (or portions thereof) being hereinafter referred to as the “Excess Parachute Payments”), you will be entitled to receive (A) an amount limited so that no portion thereof shall Xxxxx Xxxxx February 12, 2018 fail to be tax deductible under Section 280G of the Code as then in effect; and(the “Limited Amount”), or (B) if the amount otherwise payable hereunder or otherwise (without regard to clause (A)) reduced by all taxes applicable thereto (including, for the avoidance of doubt, the excise tax levied under Section 4999 of the Code (the “Excise Tax”)) would be greater than the Limited Amount reduced by all taxes applicable thereto, the amount otherwise payable hereunder. (ii) The determination as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereonto whether the Total Payments include Excess Parachute Payments and, if so, the aggregate after-tax amounts received amount of such Excess Parachute Payments, the amount of any Excise Tax with respect thereto, and the amount of any reduction in Total Payments shall be made at the Company’s expense by the Participant from independent public accounting firm most recently serving as the Company’s outside auditors or such other accounting or benefits consulting group or firm as the Company under this Agreement and all Payments would be less than may designate (the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment“Accountants”). In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment payments under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is otherwise are required to be reduced as described in Section 5(d)(i), the adjustment will be made, first, by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with amount of base salary payable pursuant to Section 5(a)(i)(A) or the parachute payment with amount of base salary and bonus payable pursuant to Section 5(c)(i), as applicable; second, if additional reductions are necessary, by reducing the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time of payment of or reimbursement for COBRA premiums due to you pursuant to Section 5(a)(i)(B) or Section 5(c)(iii), as applicable; and third, if additional reductions are still necessary, by eliminating the accelerated vesting of time-based equity-based awards or the vesting of performance-based equity-based awards, if any, starting with those awards for which the amount required to be taken into account under Section 280G is the greatest. (iii) In the event that there has been an underpayment or overpayment under this Agreement or otherwise as determined by the Accountants, the amount of such parachute paymentsunderpayment or overpayment shall forthwith be paid to you or refunded to the Company, as the case may be, with amounts having later payment dates being reduced first. For parachute payments with interest at the same Parachute Payment Ratio and applicable federal rate provided for in Section 7872(f)(2) of the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioCode.

Parachute Payments. (a) 7.7.1 Anything in any section of this Agreement other than this Section 11 to the contrary notwithstanding, in the event that a Change in Control occurs and it shall be determined that any Payment (as hereinafter defined) would be subject to payment or distribution by the Excise Tax (as hereinafter defined), the right to receive any Payment under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments Bank or its Affiliates to or for Participantthe benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, would cause any Payment to the Participant under this Agreement to be considered a "constitute an “excess parachute payment" ” within the meaning of Section 280G(b)(2) section 280G of the Code (each such payment, a “Parachute Payment”) and would result in the imposition on the Employee of an excise tax under section 4999 of the Code, then, in addition to any other benefits to which the Employee is entitled under this Agreement or otherwise, the Employee shall be paid an amount in cash equal to the sum of the excise taxes payable by the Employee by reason of receiving Parachute Payments plus the amount necessary to place the Employee in the same after-tax position (taking into account any and all applicable federal, state and local excise, income or other taxes at the highest possible applicable rates on such Parachute Payments (including, without limitation, any payments under this Subparagraph 7.7.1)) as if no excise taxes had been imposed with respect to Parachute Payments (the “Parachute Gross-up”). In no event shall a Parachute Gross-up be payable under this subparagraph 7.7.1 in the absence of a Change in Control. Any Parachute Gross-up otherwise required by this Subparagraph 7.7.1 shall not be made later than the time of the corresponding payment or benefit hereunder giving rise to the underlying section 4999 of the Code excise tax (to the extent such determination has been made prior to such time), even if the payment of the excise tax is not required under the Code until a later time. Any Parachute Gross-up otherwise required under this Subparagraph 7.7.1 shall be made, whether or not payments or benefits are payable under this Agreement, and whether or not the Employee’s employment with the Bank shall have been terminated. 7.7.2 All determinations to be made under this Subparagraph 7.7 shall be made by an independent public accounting firm chosen by the Bank (the “Accounting Firm”). 7.7.3 In the event the Internal Revenue Service notifies the Employee of an inquiry with respect to the applicability of sections 280G or 4999 of the Code to any payment by the Bank or its Affiliates, or assessment of tax under section 4999 of the Code with respect to any payment by the Bank or its Affiliates, the Employee shall provide notice to the Bank of such inquiry or assessment within 10 days, and shall take no action with respect to such inquiry or assessment until the Bank has responded thereto (provided such response is timely with respect to the inquiry or assessment). The Bank shall have the right to appoint an attorney or accountant to represent the Employee with respect to such inquiry or assessment, and the Employee shall fully cooperate with such representative as a condition of receiving a Parachute Gross-up with respect to such inquiry or assessment. 7.7.4 All of the fees and expenses of the Accounting Firm in performing the determinations referred to in Subparagraphs 7.7.1 and 7.7.2 above, or of the representative appointed pursuant to Subparagraph 7.7.3 above, shall be borne solely by the Bank. 7.7.5 Notwithstanding the foregoing, if the imposition of a section 4999 of the Code excise tax could be avoided by a reduction of the payments due to the Employee (determined before application of Subparagraph 7.7.1) by an amount of 10% or less, then in effect; andthe total of all such payments shall be reduced to an amount one dollar ($1.00) below the amount that would cause a section 4999 of the Code excise tax to be imposed, and Subparagraph 7.7.1 shall not apply. (ii) 7.7.6 To the extent necessary to eliminate a Parachute Payment, the amounts payable or benefits to be provided to the Employee shall be reduced such that the economic loss to the Employee as a result of receiving a parachute payment and paying any applicable tax (including Excise Tax) thereonthe Parachute Payment elimination is minimized. In applying this principle, the aggregate after-tax amounts received by the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to be reduced by this Section 11, such reduction shall be implemented by determining the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments made in order beginning a manner consistent with the parachute payment with requirements of section 409A of the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment RatioCode and where two economically equivalent amounts are subject to reduction but payable at different times, such parachute payments shall be reduced based on the time of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero. 7.7.7 Notwithstanding any provision of this Subparagraph 7.7 to the contrary, in accordance with the requirements of section 409A of the Code, any Parachute Gross-up payable hereunder shall be paid not later than the end of the calendar year next following the calendar year in which the Employee or the Bank (as applicable) prior to reducing parachute payments with a lower remits the taxes for which the Parachute Payment RatioGross-up is being paid.

Parachute Payments. (a) Anything in If it is determined (as hereafter provided) that by reason of any section payment or Option vesting occurring pursuant to the terms of this Agreement (or otherwise under any other than this Section 11 to agreement, plan or program) upon a Change in Control (collectively, a "Payment"), the contrary notwithstanding, in the event it shall be determined that any Payment (as hereinafter defined) Executive would be subject to the Excise Tax excise tax imposed by Code Section 4999 (as hereinafter definedthe "Parachute Tax"), then the right Executive shall be entitled to receive an additional payment or payments (a "Gross-Up Payment") in an amount such that, after payment by the Executive of all taxes (including any Parachute Tax) imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Parachute Tax imposed upon the Payment. (b) Subject to the provisions of Section 7(a) hereof, all determinations required to be made under this Section 7, including whether a Parachute Tax is payable by the Executive and the amount of such Parachute Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by the nationally recognized firm of certified public accountants (the "Accounting Firm") used by the Employer prior to the Change in Control (or, if such Accounting Firm declines to serve, the Accounting Firms hall be a nationally recognized firm of certified public accountants selected by the Executive). The Accounting Firm shall be directed by the Employer or the Executive to submit its preliminary determination and detailed supporting calculations to both the Employer and the Executive within 15 calendar days after the determination date, if applicable, and any other such time or times as may be requested by the Employer or the Executive. If the Accounting Firm determines that any Parachute Tax is payable by the Executive, the Employer shall pay the required Gross-Up Payment to, or for the benefit of, the Executive within five business days after receipt of such determination and calculations. If the Accounting Firm determines that no Parachute Tax is payable by the Executive, it shall, at the same time as it makes such determination, furnish the Executive with an opinion that he has substantial authority not to report any Parachute Tax on his federal tax return. Any good faith determination by the Accounting Firm as to the amount of the Gross-Up Payment shall be binding upon the Employer and the Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce the Employer's obligation to provide any Gross-Up Payments that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Code Section 4999 at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Employer should have been made (an "Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Employer exhausts or fails to pursue its remedies pursuant to Section 7(f) hereof and the Executive thereafter is required to make a payment of any Parachute Tax, the Executive shall direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Employer and the Executive as promptly as possible. Any such Underpayment shall be promptly paid by the Employer to, or for the benefit of, the Executive within five business days after receipt of such determination and calculations. (c) The Employer and the Executive shall provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Employer or the Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by Section 7(b) hereof. (d) The federal tax returns filed by the Executive (or any filing made by a consolidated tax group which includes the Employer) shall be prepared and filed on a basis consistent with the determination of the Accounting Firm with respect to the Parachute Tax payable by the Executive. The Executive shall make proper payment of the amount of any Parachute Tax, and at the request of the Employer, provide to the Employer true and correct copies (with any amendments) of his federal income tax return as filed with the Internal Revenue Service, and such other documents reasonably requested by the Employer, evidencing such payment. If prior to the filing of the Executive's federal income tax return, the Accounting Firm determines in good faith that the amount of the Gross-Up Payment should be reduced, the Executive shall within five business days pay to the Employer the amount of such reduction. (e) The fees and expenses of the Accounting Firm for its services in connection with the determination and calculations contemplated by Sections 7(b) and (d) hereof shall be borne by the Employer. If such fees and expenses are initially advanced by the Executive, the Employer shall reimburse the Executive the full amount of such fees and expenses within five business days after receipt from the Executive of a statement therefor and reasonable evidence of his payment thereof. (f) In the event that the Internal Revenue Service claims that any payment or benefit received under this Agreement shall be reduced if but only if: (i) such right to such Payment, taking into account all other Payments to or for Participant, would cause any Payment to the Participant under this Agreement to be considered a constitutes an "excess parachute payment" within the meaning of Code Section 280G(b)(2) 280G(b)(1), the Executive shall notify the Employer in writing of such claim. Such notification shall be given as soon as practicable but not later than 10 business days after the Executive is informed in writing of such claim and shall apprise the Employer of the Code as then nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30 day period following the date on which the Executive gives such notice to the Employer (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Employer notifies the Executive in effectwriting prior to the expiration of such period that it desires to contest such claim, the Executive shall (i) give the Employer any information reasonably requested by the Employer relating to such claim; and (ii) take such action in connection with contesting such claim as the Employer shall reasonably request in writing from time to time, including without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Employer and reasonably satisfactory to the Executive; (iii) cooperate with the Employer in good faith in order to effectively contest such claim; and (iv) permit the Employer to participate in any proceedings relating to such claim; provided, however, that the Employer shall bear and pay directly all costs and expenses (including, but not limited to, additional interest and penalties and related legal, consulting or other similar fees) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for and against for any Parachute Tax or income tax or other tax (including interest and penalties with respect thereto) imposed as a result of receiving such representation and payment of costs and expenses. (g) The Employer shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a parachute payment refund or contest the claxx in any permissible manner and paying the Executive agrees to prosecute such contest to a determination before any applicable tax (including Excise Tax) thereonadministrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Employer shall determine; provided, however, that if the Employer directs the Executive to pay such claim and sue for a refund, the aggregate afterEmployer shalx xdvance the amount of such payment to the Executive on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after tax amounts received by basis, from any Parachute Tax (or other tax, including interest and penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided, further, that if the Participant from the Company under this Agreement and all Payments would be less than the maximum after-tax amount that could be received by Participant without causing any such Payment to be considered a parachute payment. In the event that the receipt of any such right to Payment under this Agreement, in conjunction with all other Payments, would cause the Participant to be considered to have received a parachute payment under this Agreement that would have the effect of decreasing the after-tax amount received by the Participant as described in clause (ii) of the preceding sentence, then the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. To the extent that the payment of any compensation or benefits to Executive from the Company is required to extend the statute of limitations to enable the Employer to contest such claim, the Executive may limit this extension solely to such contested amount. The Employer's control of the contest shall be reduced limited to issues with respect to which a corporate deduction would be disallowed pursuant to Code Section 280G and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by this Section 11the Internal Revenue Service or any other taxing authority. In addition, no position may be taken nor any final resolution be agreed to by the Employer without the Executive's consent if such position or resolution could reasonably be expected to adversely affect the Executive unrelated to matters covered hereto. (h) If, after the receipt by Executive of an amount advanced by the Employer in connection with the contest of the Parachute Tax claim, the Executive receives any refund with respect to such claim, the Executive shall promptly pay to the Employer the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto); provided, however, if the amount of that refund exceeds the amount advanced by the Employer, the Executive may retain such excess. If, after the receipt by the Executive of an amount advanced by the Employer in connection with a Parachute Tax claim, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Employer does not notify the Executive in writing of its intent to contest the denial of such refund prior to the expiration of 30 days after such determination, such reduction advance shall be implemented by determining deemed to be in consideration for services rendered after the “Parachute Payment Ratio” (as hereinafter defined) for each parachute payment and then reducing the parachute payments in order beginning with the parachute payment with the highest Parachute Payment Ratio. For parachute payments with the same Parachute Payment Ratio, such parachute payments shall be reduced based on the time Date of payment of such parachute payments, with amounts having later payment dates being reduced first. For parachute payments with the same Parachute Payment Ratio and the same time of payment, such parachute payments shall be reduced on a pro rata basis (but not below zero) prior to reducing parachute payments with a lower Parachute Payment RatioTermination.